These Terms of Use were last revised on March 10, 2022.
Opensend
Inc, a Delaware Corporation (“Opensend”) provides the Opensend.com
website and related services subject to your compliance with the
terms and conditions set forth below. Your use of the services
signifies your acknowledgement of and agreement to these Terms of
Use.
These Terms of Use apply to all users of the Opensend.com website
and services and any other affiliated websites and services owned
or controlled by Opensend, including any and all services, mobile
applications, and online software available through these sites
(collectively “Services”). The term “users” includes both
customers of Opensend and any other person who accesses the
Services at any point for any amount of time.
- CLIENT SERVICES AND SUBSCRIPTIONS. If you subscribe or otherwise register to use any of the Opensend
services (“Client”), the following provisions will apply in addition
to the other Terms of Use.
- Scope of Subscription Services. Opensend provides marketing services for its Clients (“Client
Services”), including identifying email addresses of persons who
have visited a Client website or otherwise expressed interest in
goods or services offered by a Client (“Leads”), and sending
promotional emails to those Leads.
- Marketing Tags. Client Services
may require Opensend to place code on Client’s website such as
JavaScript snippets and pixel tags and Client agrees to fully
cooperate with Opensend to properly set up and place this code on
the Client website. Client is required to disclose in its privacy
policy that it uses third-party marketing tags and cookies on its
website and abide by all rules, regulations, and law applicable to
the use of these tracking technologies. In addition to any other
legal requirements, Client shall include the following disclosure
(or a substantially similar disclosure) in its privacy policy: “Our
website uses a variety of technical methods for tracking purposes,
including third-party JavaScript snippets, pixel tags, and web
browser cookies. We also use third-party services to send
promotional emails to visitors to our website who may be interested
in our products and services.”
- Use of Client Lead information.
Opensend may provide information to its Clients regarding these
Leads (“Lead Information”). Opensend grants Client a
nontransferable, non-exclusive license to use the Lead information
in connection with the marketing and management functions of its own
business and for no other purpose. Client agrees to only use such
Lead Information in compliance with all applicable laws, rules, and
regulations. Opensend reserves the right to suspend the Client
Services (or a portion thereof) without notice in the event the
Client’s use of the Lead Information is in violation of this
section.
- Payments / Fees. The Client
Services are month-to-month with the services renewing on the first
of each month. Partial months may be prorated. When signing up for
Client Services you may select a tier based on the number of
anticipated visitors to your website and the estimated number of
marketing emails which may be sent. The tiers will also indicate the
overage fees you will incur for emails sent in excess of the stated
amount. You are responsible for all such recurring fees and overage
amounts. Subscription and membership fees are subject to change at
any time at the sole and absolute discretion of Opensend.
- Automatic Recurring Billing. In
accordance with the terms and conditions of the Client Services,
subscription fees will be automatically renewed each month, unless
notice of cancellation is received from you prior to the end of the
month. Unless and until your subscription is cancelled in accordance
with the Terms of Use, you hereby authorize Opensend to charge your
chosen payment method to pay for the ongoing cost of services. You
hereby further authorize Opensend to charge your chosen payment
method for any and all overages or additional purchases you make.
- Rejection of Orders. Opensend
may reject your order for any reason. Reasons for rejecting an order
include: (a) pricing error; (b) rejection of payment; (c) suspected
fraudulent activity; or (d) orders connected with a previous credit
card dispute.
- Sales Tax. Opensend charges
sales tax where required by law. If sales tax is charged, the
appropriate charges will be added to your purchase and displayed in
your invoice.
- Cancellation. At any time, and
without cause, subscription to the Client Services may be terminated
by you or Opensend. When you cancel, you are liable all for charges
incurred up to and including through the end of your current
subscription period, typically the end of the month. Once you cancel
a subscription, it will result loss of access to any Lead
Information you have not already downloaded by the end of your
subscription period. Cancelation requests may take up to 3 business
days.
- Cardholder Disputes/Chargebacks. All chargebacks are thoroughly investigated and may prevent you
from making future purchases for other products or services.
Opensend will prosecute to the fullest extent of the law any
fraudulent activities related to any chargebacks or reversals of a
valid charge for an order.
- Returns / No Warranties. There
are no product or service warranties of any kind. Subscriptions are
not eligible to be returned or exchanged.
- Legal Compliance. You agree not
to use the Client Services to promote or sell goods or services
which are illegal in Delaware, the United States, or in your local
jurisdiction. By using the Client Services, you agree to comply with
all applicable domestic and international laws, statutes, ordinances
and regulations regarding your goods and services.
- Cancellation of Listings or Accounts. Opensend reserves the right to terminate any service or to cancel
your account at any time.
- WEBSITE AND SERVICE ACCESS
- Access. Opensend grants you a
limited, revocable, nonexclusive license to access the Services in
accordance with all of these Terms of Use.
- Account Creation. In order to
access some features of the Services, you will have to create an
account. You may never use another’s account without the account
holder’s permission. When creating your account, you must provide
accurate and complete information. Should any of your information
change after submitting it to Opensend, you are required to update
that information immediately.
- Account Activity. You are
solely responsible for the activity that occurs on your account, and
you must keep your account password secure. You must notify Opensend
immediately of any breach of security or unauthorized use of your
account. Although Opensend will not be liable for your losses caused
by any unauthorized use of your account, you may be liable for the
losses of Opensend or others due to such unauthorized use.
- Automated Systems. You agree
not to use or launch any automated system, including without
limitation, “scrapers,” “robots,” “spiders,” and “offline readers”
that access the Services. You agree not to collect or harvest any
personally identifiable information, from the Services in violation
of any rule, regulation, law, or any improper purpose.
- Termination of Account. You
agree that Opensend, in its sole discretion, has the right (but not
the obligation) to delete or deactivate your account, block your
email or IP address, or otherwise terminate your access to or use of
the Services (or any part thereof), immediately and without notice,
and remove and discard any content within the Services, for any
reason, including, without limitation, if Opensend believes that you
have acted inconsistently with the letter or spirit of the Terms of
Use. Further, you agree that Opensend shall not be liable to you or
any third-party for any termination of your access to the Services.
Further, you agree not to attempt to use the Services after said
termination.
- Termination of Service.
Opensend may modify, suspend, discontinue or restrict the use of any
portion of the Services, including the availability of any portion
of the content at any time, without notice or liability. Opensend
may deny access to any registered member or other user at any time
for any reason, or no reason at all in our sole discretion. In
addition, Opensend may at any time transfer rights and obligations
under these Terms of Use to any Opensend affiliate, subsidiary or
business unit, or any of their affiliated companies or divisions, or
any entity that acquires Opensend or any of their respective assets.
You agree that Opensend shall not be liable to you or to any third
party for any modification, suspension, or discontinuance of the
Services.
- Third Party Websites. Opensend
assumes no responsibility for, the content, privacy policies, or
practices of any third-party websites, including its customers. In
addition, Opensend will not and cannot censor or edit the content of
any third-party site. You expressly relieve Opensend from any and
all liability arising from your use of any third-party website.
- Consent to Electronic Service.
When you use the Services or send e-mails to us, you are
communicating with us electronically. You consent to receive
communications from us electronically. We will communicate with you
by e-mail or by posting notices on our websites. You agree that all
agreements, notices, disclosures and other communications that we
provide to you electronically satisfy any legal requirement that
such communications be in writing.
- WEBSITE AND SERVICE ACCESS
- YOUR CONTENT
-
The Services may permit the submission, hosting, sharing, and/or
publishing of text, photographs, audio, videos, or other content
submitted by you (“Your Content”). Typically this occurs when you
provide materials to us to help promote your business. For example,
the Services may allow for promotional emails to be customized with
your logo, photographs, and promotional text you supply.
-
By posting, submitting or uploading Your Content to any area of the
Services, you automatically grant, and you represent and warrant
that you have the right to grant, to Opensend an irrevocable,
perpetual, non-exclusive, fully paid, sublicensable, transferable,
worldwide license to host, use, distribute, modify, run, copy,
publicly perform, display, and translate said Your Content and to
prepare derivative works of, or incorporate into other works, said
Your Content, and to grant and authorize sublicenses (through
multiple tiers) of the foregoing. Furthermore, by posting Your
Content the Services, you automatically grant Opensend all rights
necessary to use Your Content for providing the Services.
-
By submitting Your Content to the Services, you specifically agree
to comply with each of the following:
-
You will not post or transmit any material that violates or
infringes the rights of any other party, including, without
limitation, rights of privacy, rights of publicity, copyright,
trademark, or other intellectual property rights.
-
If your employer has rights to intellectual property you submit, you
have received permission from your employer to post or make
available the material.
-
You have fully complied with any third-party licenses relating to
the material you post or transmit and have done all things necessary
to successfully pass through to Opensend any required terms.
-
You will not submit any material that is false, deceptive,
misleading, or deceitful.
-
You will not submit any material that is abusive, hateful, racist,
bigoted, sexist, harassing, threatening, inflammatory, defamatory,
vulgar, obscene, sexually-oriented, profane or is otherwise in
violation of any applicable law, rule or regulation.
-
You will not submit any material that deceptively impersonates any
person or entity.
-
You will not submit any software or computer files that contains
malware, computer viruses, worms, Trojan horses, rootkits, spyware,
adware, and other malicious or unrequested software, computer code,
or file.
-
You will not submit any content that is intended to promote or
commit an illegal act.
Failure to comply with the above rules may lead to you being
immediately and permanently banned, with notification to law
enforcement and/or your internet service provider.
-
You are and shall remain solely responsible for any and all Your
Content you submit through the Service. You acknowledge that any
information you submit is intended to be public and used in
promotional material. Accordingly, you should exercise caution when
deciding to submit any information to the Service. Any such
disclosures are at your own risk.
-
Opensend does not prescreen Your Content submitted and Opensend has
no duty to monitor any interactive area of its website. Although we
may monitor or review Your Content from time to time, we do not
actively monitor the information supplied through your account, and
we are not under any obligation to do so. Each user is solely
responsible and liable for the contents of his or her content, and
we are not responsible in any way for the content or opinions
expressed therein. We have the right, but not the obligation, to
remove, edit or move, at any time, any material posted, in each case
as we deem appropriate. Opensend may refuse, to post, deliver,
remove, modify or otherwise use or take any action with respect to
any submission in any of the Services.
- INTELLECTUAL PROPERTY INFORMATION
-
Other than Your Content, all content on the Services, including
without limitation, the text, software, scripts, tools, graphics,
photos, sounds, music, videos, and interactive features (“Opensend
Content”) and the trademarks, service marks and logos contained
therein (“Marks”), are owned by or licensed to Opensend. The
Opensend Content and Marks are protected to the maximum extent
permitted by intellectual property laws and international treaties.
The Services protected by copyright law as a collective work and/or
compilation, pursuant to copyrights laws, and international
conventions.
- Derivative Works / Redistribution Prohibited. Any reproduction, modification, creation of derivative works from
or redistribution of the site or the collective work, and/or copying
or reproducing the sites or any portion thereof to any other server
or location for further reproduction or redistribution is prohibited
without the express written consent of Opensend.
- Reproduction Prohibited. You
further agree not to reproduce, duplicate or copy Opensend Content
without the express written consent of Opensend, and agree to abide
by any and all copyright and other legal notices displayed on the
Services. You may not decompile or disassemble, reverse engineer or
otherwise attempt to discover any source code contained in the
Services. Without limiting the foregoing, you agree not to
reproduce, duplicate, copy, sell, resell or exploit for any
commercial purposes, any aspect of the Services.
- Embedded Content / Frames. You
may not embed the Services or place the Services within inline
links, frames, or iframes.
-
THE SERVICES, INCLUDING ANY Opensend CONTENT, YOUR CONTENT, OR ANY
SITE-RELATED SERVICE, IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE”
BASIS. Opensend HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS
FOR A PARTICULAR PURPOSE.
-
Opensend MAKES NO WARRANTY THAT: (I) THE SERVICES WILL MEET YOUR
REQUIREMENTS, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY,
SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM
THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR (IV) ANY
ERRORS IN THE SERVICES WILL BE CORRECTED.
-
Opensend IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR THE
CONTENT, PRODUCTS, SERVICES, ACTIONS OR INACTIONS OF ANY USER, OR
ANY OTHER THIRD PARTY AND Opensend WILL HAVE NO LIABILITY WITH
RESPECT TO ANY WARRANTY DISCLAIMED HEREIN.
-
YOU ACKNOWLEDGE THAT Opensend HAS NO CONTROL OVER AND DOES NOT
GUARANTEE THE QUALITY, SAFETY OR LEGALITY OF PRODUCTS AND SERVICES
ADVERTISED ON THE SERVICES OR THE TRUTH OR ACCURACY OF YOUR CONTENT
OR OTHER THIRD-PARTY CONTENT.
-
Opensend, ITS AFFILIATES AND ITS SPONSORS ARE NEITHER RESPONSIBLE
NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES ARISING OUT OF OR
RELATING IN ANY WAY TO THE SERVICES AND/OR CONTENT OR INFORMATION
CONTAINED WITHIN THE SERVICES. YOUR SOLE REMEDY FOR DISSATISFACTION
WITH THE SERVICES AND/OR SITE-RELATED SERVICES IS TO STOP USING THE
SERVICES.
-
SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED FOR IN THE TERMS, TO
THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, GUARANTEES,
CONDITIONS, REPRESENTATIONS, AND UNDERTAKINGS. YOU AGREE AND
ACKNOWLEDGE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND
WARRANTY PROVIDED IN THESE TERMS OF USE ARE FAIR AND REASONABLE.
- LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT
Opensend IS OTHERWISE FOUND RESPONSIBLE FOR ANY DAMAGES, Opensend IS
RESPONSIBLE FOR ACTUAL DAMAGES ONLY. TO THE EXTENT PERMITTED BY LAW,
IN NO EVENT SHALL Opensend, ITS AFFILIATES, ITS LICENSORS, ITS
SUPPLIERS OR ANY THIRD PARTIES MENTIONED AT THE WEBSITE BE LIABLE
FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL
DAMAGES, LOST PROFITS, OR DAMAGES WHETHER BASED ON WARRANTY,
CONTRACT, TORT, DELICT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR
NOT Opensend IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE
EXTENT PERMITTED BY LAW, THE REMEDIES STATED FOR YOU IN THESE TERMS
OF USE ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR
IN THESE TERMS OF USE.
- LIMITATION OF LIABILITY. TO THE
EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT Opensend
IS OTHERWISE FOUND RESPONSIBLE FOR ANY DAMAGES, Opensend IS
RESPONSIBLE FOR ACTUAL DAMAGES ONLY. TO THE EXTENT PERMITTED BY LAW,
IN NO EVENT SHALL Opensend, ITS AFFILIATES, ITS LICENSORS, ITS
SUPPLIERS OR ANY THIRD PARTIES MENTIONED AT THE WEBSITE BE LIABLE
FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL
DAMAGES, LOST PROFITS, OR DAMAGES WHETHER BASED ON WARRANTY,
CONTRACT, TORT, DELICT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR
NOT Opensend IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE
EXTENT PERMITTED BY LAW, THE REMEDIES STATED FOR YOU IN THESE TERMS
OF USE ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR
IN THESE TERMS OF USE.
- UNSOLICITED MATERIAL AND IDEAS
-
We are happy to hear from users and welcome feedback regarding the
Services. However, if you transmit unsolicited submissions to us
through the Services or otherwise, you grant Opensend a worldwide,
royalty-free, perpetual, irrevocable, non-exclusive right and fully
sub-licensable, assignable and transferrable license to use, copy,
reproduce, distribute, publish, publicly perform, publicly display,
modify, adapt, translate, archive, store, and create derivative
works from such submissions, and you understand and agree that such
submissions may be adapted, broadcast, changed, copied, disclosed,
licensed, performed, posted, published, sold, transmitted, or
otherwise used as Opensend sees fit.
-
By using the Services and transmitting an unsolicited submission to
us, you agree that you are not entitled to any compensation, credit
or notice whatsoever with respect to such submission, and that by
sending an unsolicited submission you waive the right to make any
claim against the Services, Opensend and its affiliated companies,
officers, directors or employees relating to our use of such
submission, including, without limitation, infringement of
proprietary rights, unfair competition, breach of implied contract
or breach of confidentiality, even if material or an idea is used
that is or may be substantially similar to the idea you sent.
- LIMITATION OF LIABILITY. TO THE
EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT Opensend
IS OTHERWISE FOUND RESPONSIBLE FOR ANY DAMAGES, Opensend IS
RESPONSIBLE FOR ACTUAL DAMAGES ONLY. TO THE EXTENT PERMITTED BY LAW,
IN NO EVENT SHALL Opensend, ITS AFFILIATES, ITS LICENSORS, ITS
SUPPLIERS OR ANY THIRD PARTIES MENTIONED AT THE WEBSITE BE LIABLE
FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL
DAMAGES, LOST PROFITS, OR DAMAGES WHETHER BASED ON WARRANTY,
CONTRACT, TORT, DELICT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR
NOT Opensend IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE
EXTENT PERMITTED BY LAW, THE REMEDIES STATED FOR YOU IN THESE TERMS
OF USE ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR
IN THESE TERMS OF USE.
- INDEMNITY
-
You agree to defend, indemnify and hold harmless Opensend, its
affiliated companies, officers, directors, employees and agents,
from and against any and all claims, damages, obligations, losses,
liabilities, costs or debt, and expenses (including but not limited
to attorney’s fees) arising from:
- your use of and access to the Services;
-
your customers and potential customers who receive your promotional
emails from us.
-
your violation of any term of these Terms of Use;
-
your violation of any third party right, including without
limitation any copyright, property, or privacy right;
-
your violation of any law, rule or regulation of the United States,
any state, or any other country;
-
any claim that Your Content caused damage to another party.
-
any other party’s access and use of the Services with your account.
-
This defense and indemnification obligation will survive these Terms
of Use and any termination of your use of the Services.
- LIMITATION OF LIABILITY. TO THE
EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT Opensend
IS OTHERWISE FOUND RESPONSIBLE FOR ANY DAMAGES, Opensend IS
RESPONSIBLE FOR ACTUAL DAMAGES ONLY. TO THE EXTENT PERMITTED BY LAW,
IN NO EVENT SHALL Opensend, ITS AFFILIATES, ITS LICENSORS, ITS
SUPPLIERS OR ANY THIRD PARTIES MENTIONED AT THE WEBSITE BE LIABLE
FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL
DAMAGES, LOST PROFITS, OR DAMAGES WHETHER BASED ON WARRANTY,
CONTRACT, TORT, DELICT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR
NOT Opensend IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE
EXTENT PERMITTED BY LAW, THE REMEDIES STATED FOR YOU IN THESE TERMS
OF USE ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR
IN THESE TERMS OF USE.
- UNSOLICITED MATERIAL AND IDEAS
- INDEMNITY
- DIGITAL MILLENNIUM COPYRIGHT ACT
- Infringement Not Permitted.
Opensend does not permit copyright infringing activities and
infringement of intellectual property rights on its Website, and
Opensend will remove any content if properly notified that such
content infringes on another’s intellectual property rights.
Opensend reserves the right to remove any content without prior
notice.
- DMCA Notice. If you are a
copyright owner or an agent thereof and believe that any content
infringes upon your copyrights, you may submit a notification
pursuant to the Digital Millennium Copyright Act (“DMCA”) by
providing our Copyright Agent with the following information in
writing (see 17 U.S.C 512(c)(3) for further detail):
-
A physical or electronic signature of a person authorized to act on
behalf of the owner of an exclusive right that is allegedly
infringed;
-
Identification of the copyrighted work claimed to have been
infringed, or, if multiple copyrighted works at a single online site
are covered by a single notification, a representative list of such
works at that site;
-
Identification of the material that is claimed to be infringing or
to be the subject of infringing activity and that is to be removed
or access to which is to be disabled and information reasonably
sufficient to permit the service provider to locate the material;
-
Information reasonably sufficient to permit the service provider to
contact you, such as an address, telephone number, and, if
available, an electronic mail;
-
A statement that you have a good faith belief that use of the
material in the manner complained of is not authorized by the
copyright owner, its agent, or the law; and
-
A statement that the information in the notification is accurate,
and under penalty of perjury, that you are authorized to act on
behalf of the owner of an exclusive right that is allegedly
infringed.
- Infringement Not Permitted.
Opensend does not permit copyright infringing activities and
infringement of intellectual property rights on its Website, and
Opensend will remove any content if properly notified that such
content infringes on another’s intellectual property rights.
Opensend reserves the right to remove any content without prior
notice.
- DMCA Notice. If you are a
copyright owner or an agent thereof and believe that any content
infringes upon your copyrights, you may submit a notification
pursuant to the Digital Millennium Copyright Act (“DMCA”) by
providing our Copyright Agent with the following information in
writing (see 17 U.S.C 512(c)(3) for further detail):
Opensend’s designated Copyright Agent to receive notifications of
claimed infringement is:Opensend Inc
Attn: Copyright Agent
Address: 2126 Glendon Ave
Los Angeles, CA, US
90025
Email: support@opensend.comYou acknowledge that if you fail to comply
with all of the requirements of this Section, your DMCA notice may not
be valid.
- Counter-Notice. If you believe
that Your Content that was removed (or to which access was disabled)
is not infringing, or that you have the authorization from the
copyright owner, the copyright owner’s agent, or pursuant to the law,
to post and use the content in Your Content, you may send a
counter-notice containing the following information to the Copyright
Agent:
-
Your physical or electronic signature;
-
Identification of the content that has been removed or to which access
has been disabled and the location at which the content appeared
before it was removed or disabled;
-
A statement that you have a good faith belief that the content was
removed or disabled as a result of mistake or a misidentification of
the content; and
-
Your name, address, telephone number, and e-mail address, a statement
that you consent to the jurisdiction of the federal court in Las
Vegas, Delaware, and a statement that you will accept service of
process from the person who provided notification of the alleged
infringement.
- Effect of Counternotice. If a
counter-notice is received by the Copyright Agent, Opensend may send a
copy of the counter-notice to the original complaining party informing
that person that it may replace the removed content or cease disabling
it in 10 business days. Unless the copyright owner files an action
seeking a court order against the content provider, member or user,
the removed content may be replaced, or access to it restored, in 10
to 14 business days or more after receipt of the counter-notice, at
Opensend’s sole discretion.
- CLIENT SERVICES AND SUBSCRIPTIONS. If you subscribe
or otherwise register to use any of the Opensend services (“Client”),
the following provisions will apply in addition to the other Terms of
Use.
- WEBSITE AND SERVICE ACCESS
- YOUR CONTENT
- INTELLECTUAL PROPERTY INFORMATION
- WARRANTY DISCLAIMER
- LIMITATION OF LIABILITY. TO THE
EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT Opensend IS
OTHERWISE FOUND RESPONSIBLE FOR ANY DAMAGES, Opensend IS RESPONSIBLE
FOR ACTUAL DAMAGES ONLY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT
SHALL Opensend, ITS AFFILIATES, ITS LICENSORS, ITS SUPPLIERS OR ANY
THIRD PARTIES MENTIONED AT THE WEBSITE BE LIABLE FOR ANY INCIDENTAL,
INDIRECT, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, LOST PROFITS,
OR DAMAGES WHETHER BASED ON WARRANTY, CONTRACT, TORT, DELICT, OR ANY
OTHER LEGAL THEORY, AND WHETHER OR NOT Opensend IS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE
REMEDIES STATED FOR YOU IN THESE TERMS OF USE ARE EXCLUSIVE AND ARE
LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THESE TERMS OF USE.
- UNSOLICITED MATERIAL AND IDEAS
- INDEMNITY
- DIGITAL MILLENNIUM COPYRIGHT ACT
- PRIVACY POLICY
-
Opensend has established a Privacy Policy to explain to users how
personal information is collected and used, which is located at the
following web address:
https://www.opensend.com/privacy-policy
-
Your use of the Services signifies acknowledgement of and agreement to
our Privacy Policy. You further acknowledge and agree that Opensend
may, in its sole discretion, preserve or disclose content posted by
you, as well as your information, such as email addresses, IP
addresses, timestamps, and other user information, if required to do
so by law or in the good faith belief that such preservation or
disclosure is reasonably necessary to comply with legal process,
enforce the Terms of Use, or respond to claims from third-parties.
- CLIENT SERVICES AND SUBSCRIPTIONS. If you subscribe
or otherwise register to use any of the Opensend services (“Client”),
the following provisions will apply in addition to the other Terms of
Use.
- WEBSITE AND SERVICE ACCESS
- YOUR CONTENT
- INTELLECTUAL PROPERTY INFORMATION
- WARRANTY DISCLAIMER
- LIMITATION OF LIABILITY. TO THE
EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT Opensend IS
OTHERWISE FOUND RESPONSIBLE FOR ANY DAMAGES, Opensend IS RESPONSIBLE
FOR ACTUAL DAMAGES ONLY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT
SHALL Opensend, ITS AFFILIATES, ITS LICENSORS, ITS SUPPLIERS OR ANY
THIRD PARTIES MENTIONED AT THE WEBSITE BE LIABLE FOR ANY INCIDENTAL,
INDIRECT, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, LOST PROFITS,
OR DAMAGES WHETHER BASED ON WARRANTY, CONTRACT, TORT, DELICT, OR ANY
OTHER LEGAL THEORY, AND WHETHER OR NOT Opensend IS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE
REMEDIES STATED FOR YOU IN THESE TERMS OF USE ARE EXCLUSIVE AND ARE
LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THESE TERMS OF USE.
- UNSOLICITED MATERIAL AND IDEAS
- INDEMNITY
- DIGITAL MILLENNIUM COPYRIGHT ACT
- PRIVACY POLICY
- GOVERNING LAW / DISPUTES
-
You agree that the Services shall be deemed solely based in the State
of Delaware.
-
The Services do not give rise to personal jurisdiction over Opensend,
either specific or general, in jurisdictions other than Delaware.
- Governing Law / Jurisdiction.
These Terms of Use will be governed and interpreted in accordance with
the internal laws of the State of Delaware applicable to agreements
entered into and to be wholly performed therein, without regard to
principles of conflict of laws. If any provision of this Agreement is
found to be invalid or unenforceable, such provision shall be severed
from the remainder of these Terms of Use, which shall remain in full
force and effect. These Terms of Use are governed by a mandatory
arbitration clause set out below, however, if a court is necessary in
whole or in part to enforce these Terms of Use, You consent and submit
to the sole and exclusive jurisdiction of the state and federal courts
located in Delaware and waive any objection to personal jurisdiction,
to venue, or to convenience of forum.
- Disputes. Any dispute, claim or
controversy arising out of or relating to the Services, this Agreement
or the breach, termination, enforcement, interpretation or validity
thereof, including the determination of the scope or applicability of
this agreement to arbitrate, shall be determined by arbitration in
Delaware, before one arbitrator. At the option of the first to
commence an arbitration, the arbitration shall be administered either
by JAMS pursuant to its Streamlined Arbitration Rules and Procedures,
or by the American Arbitration Association pursuant to its Commercial
Arbitration Rules. The arbitrator may not award any consequential,
indirect, exemplary, special or incidental damages arising from or
relating to your use of the Services (including, without limitation,
damages for loss of business profits, business interruption, loss of
business information, or other pecuniary loss). Judgment on the Award
may be entered in any court having jurisdiction. You and we will each
pay one-half of the costs and expenses of such arbitration, and each
of the parties will separately pay their counsel fees and expenses.
Notwithstanding the parties’ decision to resolve all disputes through
arbitration, either party may bring an action in state or federal
court in Delaware to protect its intellectual property rights
(“intellectual property rights” means patents, copyrights, trademarks,
and trade secrets, but not privacy or publicity rights). For any
actions brought in court, You and Opensend consent to the sole and
exclusive jurisdiction of the courts located in Delaware, including
for acts occurring outside of the United States
- Statute of Limitations. You agree
to file any claim regarding any aspect of the Services or these Terms
of Use within six months of the time in which the events giving rise
to such claim began, or you agree to waive such claim.
- Class Action Waiver. You agree
that any arbitration shall be conducted in your individual capacity
only and not as a class action or other representative action, and you
expressly waive your right to file a class action or seek relief on a
class basis. YOU AND Opensend AGREE THAT EACH MAY BRING CLAIMS AGAINST
THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A
PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE
PROCEEDING.
- CLIENT SERVICES AND SUBSCRIPTIONS. If you subscribe
or otherwise register to use any of the Opensend services (“Client”),
the following provisions will apply in addition to the other Terms of
Use.
- WEBSITE AND SERVICE ACCESS
- YOUR CONTENT
- INTELLECTUAL PROPERTY INFORMATION
- WARRANTY DISCLAIMER
- LIMITATION OF LIABILITY. TO THE
EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT Opensend IS
OTHERWISE FOUND RESPONSIBLE FOR ANY DAMAGES, Opensend IS RESPONSIBLE
FOR ACTUAL DAMAGES ONLY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT
SHALL Opensend, ITS AFFILIATES, ITS LICENSORS, ITS SUPPLIERS OR ANY
THIRD PARTIES MENTIONED AT THE WEBSITE BE LIABLE FOR ANY INCIDENTAL,
INDIRECT, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, LOST PROFITS,
OR DAMAGES WHETHER BASED ON WARRANTY, CONTRACT, TORT, DELICT, OR ANY
OTHER LEGAL THEORY, AND WHETHER OR NOT Opensend IS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE
REMEDIES STATED FOR YOU IN THESE TERMS OF USE ARE EXCLUSIVE AND ARE
LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THESE TERMS OF USE.
- UNSOLICITED MATERIAL AND IDEAS
- INDEMNITY
- DIGITAL MILLENNIUM COPYRIGHT ACT
- PRIVACY POLICY
- GOVERNING LAW / DISPUTES
- ASSIGNMENT / MODIFICATION
- Assignment. These Terms of Use,
and any rights and licenses granted hereunder, may not be transferred
or assigned by you. Opensend may assign these Terms of Use, and any
rights and license granted hereunder without restriction.
- Modification. We reserve the
right to amend these Terms of Use at any time. If we do this, we will
post the amended Terms of Use on this page and indicate at the top of
the page the date the Terms of Use were last revised. The most current
version of these Terms of use will supersede all previous versions.
Your continued use of the Services after any such changes constitutes
your acceptance of the new Terms of Use. If you do not agree to any of
these terms or any future Terms of Use, do not use or access (or
continue to access) the Services.
- CLIENT SERVICES AND SUBSCRIPTIONS. If you subscribe
or otherwise register to use any of the Opensend services (“Client”),
the following provisions will apply in addition to the other Terms of
Use.
- WEBSITE AND SERVICE ACCESS
- YOUR CONTENT
- INTELLECTUAL PROPERTY INFORMATION
- WARRANTY DISCLAIMER
- LIMITATION OF LIABILITY. TO THE
EXTENT PERMITTED BY APPLICABLE LAW AND TO THE EXTENT THAT Opensend IS
OTHERWISE FOUND RESPONSIBLE FOR ANY DAMAGES, Opensend IS RESPONSIBLE
FOR ACTUAL DAMAGES ONLY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT
SHALL Opensend, ITS AFFILIATES, ITS LICENSORS, ITS SUPPLIERS OR ANY
THIRD PARTIES MENTIONED AT THE WEBSITE BE LIABLE FOR ANY INCIDENTAL,
INDIRECT, EXEMPLARY, PUNITIVE AND CONSEQUENTIAL DAMAGES, LOST PROFITS,
OR DAMAGES WHETHER BASED ON WARRANTY, CONTRACT, TORT, DELICT, OR ANY
OTHER LEGAL THEORY, AND WHETHER OR NOT Opensend IS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY LAW, THE
REMEDIES STATED FOR YOU IN THESE TERMS OF USE ARE EXCLUSIVE AND ARE
LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THESE TERMS OF USE.
- UNSOLICITED MATERIAL AND IDEAS
- INDEMNITY
- DIGITAL MILLENNIUM COPYRIGHT ACT
- PRIVACY POLICY
- GOVERNING LAW / DISPUTES
- ASSIGNMENT / MODIFICATION
- CONSENT
By using the Services in any way, you are agreeing to comply with these
Terms of Use. In addition, when using a particular service, you agree to
abide by any applicable posted guidelines, which may change from time to
time. Should you object to any term or condition of the Terms of Use,
any guidelines, or any subsequent modifications thereto or become
dissatisfied with the Services in any way, your only recourse is to
immediately discontinue your use of the Services.
