These Terms of Service (“Terms of Service”) are between you (“You”) and eROI, Inc. (“eROI” or “We”). These Terms of Service apply to any and all services eROI provides to You or you have agreed to receive from eROI or through eROI’s web site located at www.eroi.com and related web pages (the “eROI Site”) (collectively, the “Services”). The Services include without limitation any or all of the following:
- Web Development and Hosting
In the event certain provisions in these Terms of Service apply only to specific Services, such limited application will be described expressly. Unless expressly stated otherwise, the provisions of these Terms of Services shall apply to all Services You are to receive.
1. Acceptance of Terms.
As a condition to receiving any of the Services, You accept and agree to these Terms of Service. IF YOU DO NOT ACCEPT AND AGREE TO THESE TERMS OF SERVICE, DO NOT ACCESS YOUR ACCOUNT AND/OR USE THE SERVICES. You also agree that, except for the terms relating to web and email template development described in Section 12, eROI may amend these Terms of Service at any time in eROI’s sole discretion without specific notice to you. Prior to each use of any of the Services, you hereby agree to review the most current Terms of Service and agree that your use of the Services constitutes acceptance of the then-current Terms of Service. If you have received and signed an estimate to receive any of the Services from eROI (an “Estimate”), the Estimate is incorporated into these Terms of Service by this reference to the extent it is identified and discussed expressly herein. These Terms of Service will control in the event of any inconsistency between the Terms of Service and an Estimate.
2. General Use
You promise that you will not use any of the Services, in whole or in part, for any purpose that is immoral, unlawful or otherwise prohibited by these Terms of Service. Unless otherwise provided by these Terms of Service, you agree that you will not modify, copy, distribute, transmit, display, reproduce, publish, license, attempt to or create derivative works from, frame in another web page, use on any other email, transfer, or sell: any information, software, lists of users, databases or other lists, products or services provided through or obtained from the Services. You shall not use the Services in any manner which could damage, disable, overburden, or impair the Services or the eROI Site or interfere with any other party’s use and enjoyment of the Services or the eROI Site. You shall not attempt to access unauthorized or prohibited areas of the eROI Site (such as access password protected, secure or non-public areas of the eROI Site), and such attempts may be subject to prosecution. Unless you have written permission from eROI stating otherwise, you agree and promise not to resell or exploit for any commercial purpose any of the Services or eROI’s software. You agree not to use the Services to display or transmit material that is offensive, pornographic, hateful or otherwise inconsistent with eROI’s community standards. We reserve the right, in eRoi’s sole discretion, to review all such materials and suspend or terminate your access to and use of any or all of the Services used to display or transmit such content.
In order for you to use the Services, eROI may require that you provide specific information about yourself. You agree that any information you provide shall be true, complete and accurate, and that you will notify eROI if such information changes and keep such information current. Further, you agree to not falsely represent your affiliation with any person or entity. You agree and acknowledge that information you provide may be used to send you information about the Services unless you unsubscribe from such notifications.
You agree to pay all applicable fees for the Services in full in a timely manner as described in any Estimate and/or on the eROI Site as part of the registration process. We reserve the right to suspend or discontinue your access to and use of the Services if you fail to make payments timely and in full. Except for the fees for specific development services agreed to in an Estimate on a project-only basis, we reserve the right, upon prior notice to you, to change the amount of fees due hereunder for use of the Services.
5. Storage and Usage
Certain Services entitle You to disk space at no cost. You may sign up for as many accounts as you would like; each additional account to use eROI’s email provider system (the “Email System”) will also receive storage space. You acknowledge that eROI may, from time to time, establish general practices and limits concerning the use of the Services. You agree that eROI does not have any responsibility or liability for the deletion of (or failure to store) any content transmitted to or maintained by the eROI as part of the Services. You further acknowledge and agree that eROI reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
6. Anti-Spam and Privacy
7. General Conduct
You, and not eROI, are entirely responsible for all information, data, text, software, music, sound, photographs, graphics, video, messages, trademarks, logos, images or other materials posted, displayed, transmitted or delivered through your account using the Services or delivered to eROI to provide you with the Services (“Your Content”). eROI is not responsible for controlling Your Content posted, displayed, transmitted or delivered via the Services. You hereby guarantee the accuracy, integrity and quality of any and all of Your Content posted or delivered via the Services through your account. You represent and warrant that your account will not be used to post, display, upload or otherwise transmit:
a. any content related to inappropriate subject matters or content which is misleading;
b. any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
c. any content that you do not have a right to post and transmit under any law or contractual /fiduciary relationships;
d. any content, such that such posting, uploading, or transmission constitutes the infringement of any patent, trademark, trade secret, copyright or other proprietary or intellectual property rights of any party;
e. any materials that contain software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
f. any materials which impose an unreasonably large load on eROI’s infrastructure;
g. any content that is harmful to minors;
h. any content that intentionally or unintentionally violates any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities Exchange Commission, any rules of national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
i. content that is misleading or impersonates any person or entity or falsely states or otherwise misrepresents your affiliation with a person or entity;
j. content with manipulated, forged or disguised identifiers;
k. content promoting harm or providing instructional information about illegal activities;
l. content that might be considered “spam”;
m. emails in violation of eROI’s then-current Anti-Spam Policy and/or these Terms of Service; and
n. emails that contain fraudulent or deceptive subject lines, headers, or return addresses.
8. Third Party Content
For your convenience, the eROI Site may contain content and information from third parties (“Third Party Content”). Such Third Party Content may not be under the control of eROI and eROI is not responsible for such content, including, without limitation, any link contained in such content, or any changes or updates to such content. eROI is providing such Third Party Content to you only as a convenience, and the inclusion of such content does not imply endorsement by eROI of such content or the affiliate. You may be subject to additional and/or different terms, conditions, and privacy policies when you use third party services, content, software, or sites. eROI is not and will not be responsible for (i) the Terms of any transaction between you and any third party, (ii) any insufficiency of or problems with any such third party or (iii) the quality of services performed by any such third party. In the event that you have a dispute with any such third party, you release eROI (and their affiliates, agents and employees) from any and all claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
9. Warranty Disclaimer
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. WE AND OUR SUPPLIERS PROVIDE ALL OF THE SERVICES AND THE EMAIL SYSTEM “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, AND EROI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, NON-INFRINGEMENT AND QUIET ENJOYMENT; (B) EROI MAKES NO WARRANTY THAT (i) ANY OF THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA, OR OTHER DAMAGES/LIABILTY THAT RESULT FROM USE OF THE SERVICES.
10. Limitation of Liability
IN NO EVENT SHALL EROI AND/OR OUR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE, DATA OR PROFITS (HOWEVER ARISING, INCLUDING NEGLIGENCE) EVEN IF EROI OR ANY OF THEIR SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES, RELATING TO, ARISING OUT OF OR IN CONNECTION WITH (A) THE USE OR INABILITY TO USE ANY OF THE SERVICES, (B) THE PROVISION OF OR FAILURE TO PROVIDE THE SERVICES, (C) ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH ANY OF THE SERVICES OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICES, (D) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES, OR (E) ANY OTHER MATTER RELATING TO, ARISING OUT OF, OR IN CONNECTION WITH ANY OF THE SERVICES, THE DELIVERABLES, OR THESE TERMS OF SERVICE. SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU. THE PARTIES ACKNOWLEDGE THE LIMITATIONS DESCRIBED HEREIN FORM A BASIS OF THEIR BARGAIN WITH RESPECT TO THESE TERMS OF SERVICE AND ALL SERVICES PROVIDED HEREUNDER. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES, OR WITH ANY OF THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES.
11. License, Ownership, and Restrictions
a. Your Content. You grant eROI a worldwide, royalty-free, non-exclusive license to (i) host, use, reproduce, modify, distribute, transmit, and combine Your Content with information provided by third parties; (ii) publicly display Your Content on and through the eROI Site and websites of their affiliates, and co-branded or mirrored versions of such sites; (iii) publish Your Content or a portion thereof in eROI’s promotional materials, press releases and/or advertising materials, both in print and on the eROI Site; (iv) sublicense Your Content to third parties such content to the extent necessary for the creation and maintenance of, in part or in whole, such sites; and (v) use, reproduce, modify, and transmit Your Content for the purpose of providing any and all Services to You hereunder.
b. eROI Content, Software, Platforms and Engines. You acknowledge that all content appearing on the eROI Site, including without limitation all collateral, text, audio files, video files, graphics, and other data (the “eROI Content”) and all software, including without limitation all related software platforms and engines, used to operate the eROI Site and provide the Services (the “Software”) may be protected by copyright and other intellectual property laws. Subject to the Terms of these Terms of Service, eROI grants to you a non-exclusive, non-transferable right and license to access the eROI Content and use the object code of the Software only through the eROI Site on a server controlled by eROI for the sole purpose of using the Services for which You have enrolled through the eROI Site or agreed to receive as part of an Estimate. Your rights in and to the eROI Content and Software are strictly limited to those rights granted expressly herein.
c. Ownership. eROI shall retain all right, title and interest (including without limitation all intellectual property rights) in and to the eROI Content, Software, and eROI Site. You will not reverse engineer, reverse assemble, decompile or otherwise attempt to derive the source code from the Software. Except as expressly granted to You in these Terms of Service, You may not copy, modify, rent, sell, distribute or transfer any part of the eROI Content or Software. Except for the rights granted expressly to eROI herein, you shall retain all right, title and interest (including all intellectual property rights) in and to Your Content.
d Trademarks. The eROI logos and product and service names appearing on the eROI Site, advertising materials, or other eROI materials (collectively, the “Marks”) are proprietary trademarks. eROI retains all right, title and interest in and to the Marks, and you agree not to display, use, alter or reproduce the Marks in any manner.
12. Web Design and Email Marketing. The provisions in this Section 12 apply only to web design and/or email marketing Services provided by eROI to You as set forth in a Website Estimate or Email Marketing Estimate (defined below).
a. Development. eROI shall develop and design a web site (the “Web Site”) and/or email template as part of an emailROI™ package (the “Email Template”) for You in accordance with the Estimate for such design and development signed separately by eROI and You (a “Website Estimate” for Web Site design and development and an “Email Marketing Estimate” for Email Template design and development), which is incorporated herein by this reference. eROI and You shall exercise reasonable commercial efforts to work together as described in the Website Estimate and/or Email Marketing Estimate to complete the tasks and objectives as described therein.
b. Change Orders. In the event You desire to modify the Website Estimate, Email Marketing Estimate, or any deliverable therein, You and eROI shall enter into a signed writing to change the Website Estimate and/or Email Marketing Estimate (a “Change Order”) which will contain the title “Change Order” and will include, at a minimum, the scope of services eROI is to provide, a new deliverable schedule, and the cost and payment schedule for such modifications. All Change Orders shall be effective as of the date executed in writing by You and eROI and shall be incorporated into these Terms of Service and the Website Estimate and/or Email Marketing Estimate. In the event of a discrepancy between a Change Order and these Terms of Service, the provisions of these Terms of Service shall govern.
c. Responsibilities. eROI shall exercise commercially reasonable efforts to provide the deliverables as described in the Website Estimate and/or Email Marketing Estimate. You agree to provide all assistance and cooperation to eROI as is necessary to complete the Web Site and/or Email Template. eROI shall not be in breach of these Terms of Service, a Website Estimate, an Email Marketing Estimate, or any Change Order if any failure to meet its obligations or time schedules is caused by any delay or failure by You to provide assistance and cooperation to eROI as described herein. In such event, eROI shall be entitled to extend dates of delivery to the extent a delay is caused by Your failure to provide such assistance and cooperation, and You shall continue to make payments timely as set forth in the Website Estimate, Email Marketing Estimate or Change Order.
d. eROI Materials. You agree that the design and development of any Web Site and/or Email Template may include source code, documentation, and/or application programs that were previously written or developed by eROI and modified to meet Your specific requirements (the “eROI Materials”). eROI retains all right, title and interest (including all intellectual property rights) in and to the eROI Materials, but shall provide Client (upon payment in full of the fees associated with the design and development of the Web Site and/or Email Template) a worldwide, royalty-free, non-exclusive, non-transferable and perpetual right and license to use the eROI Materials solely for the purpose of utilizing the Web Site and/or Email Template provided to You by eROI hereunder. e. General Skills and Knowledge. Notwithstanding anything to the contrary contained herein or in any Estimate, eROI will not be prohibited or enjoined at any time by You from utilizing any skills or knowledge of a general nature that eROI acquires during the course of providing the Services or developing any Web Site and/or Email Template, including without limitation information publicly known or available or that could reasonably be acquired in similar work performed for another customer of eROI. f. Ownership. Subject to Sections 11c, 12d and 12e, and except for the rights granted to eROI in these Terms of Service, You shall own all right, title and interest in and to the Web Site and/or Email Templates designed for You by eROI hereunder. g. Acceptance. Upon completion and delivery of a Web Site or Email Template (a “Deliverable”), You will promptly evaluate the Deliverable to ensure it conforms with the applicable Estimate or Change Order. In the event a Deliverable does not conform to an Estimate or Change Order (a “Deficiency”), You will provide eROI with written notice of the Deficiencies in sufficient detail to allow eROI to correct such Deficiencies. If eROI does not receive written notice of any Deficiencies within seven (7) days of providing a Deliverable to You, such Deliverable will be deemed accepted by You in its entirety. Any changes to a Deliverable following acceptance by You will be subject to the Change Order process described in Section 12b.
13. Web Hosting. The provisions of this Section 13 shall apply only to web hosting Services provided by eROI to you.
a. License to eROI. You grant to eROI a non-exclusive, non-transferable license to use and display the Web Content (defined below) and all updates thereto on the Hosted Site (defined below) as is reasonably necessary for eROI to perform its obligations under these Terms of Services and any related Estimate to provide web hosting services to You. “Web Content” means the web pages and all related content, including all trademarks, trade names, service marks and/or logos You designate to be hosted on eROI’s servers hereunder, whether created by You, either directly or for you by a third party, or by eROI through its web development Services hereunder. “Hosted Site” means Your internet web site hosted by eROI under these Terms of Service that can be found at the URL You provide to eROI.
b. Except for the rights granted to eROI in these Terms of Service, You shall own all right, title and interest (including all intellectual property rights) in and to the Web Content and the Hosted Site.
You agree to indemnify and hold eROI and each of their directors, officers, employees, agents, and consultants harmless from any and all claims and demands (including, but not limited to, fines, penalties and/or reasonable attorneys’ fees) arising out of, relating to or in connection with (a) Your breach of any or all of Your representations and warranties in Section 7, and (b) Your Use (defined below) of, or subscription to, any of the Services provided to You hereunder. For the purposes of these Terms of Service, “Your Use” includes, but is not limited to, any use of your account by anybody accessing, either with or without your permission, your account. If eROI is fined or penalized or threatened with a fine, penalty, claim, arbitration or lawsuit because of your use of any of the Services, eROI may charge (i) such fines or penalties, (ii) threatened fines and penalties, (iii) projected damages for claims, arbitration and lawsuits and (iv) projected reasonable attorneys’ fees in defense of the above to your account or credit card, at its discretion.
15. Term and Termination
a. Term. These Terms of Service shall be in effect as of the date the Estimate is signed or the date You register for an account to use any of the Services through the eROI Site, whichever is earlier. These Terms of Service shall continue in full force and effect until the later of (a) the Terms of Service are terminated as described herein, or (b) You close your account to use the Services and You have paid all fees due to eROI in full. If you are to receive only development Services described in Section 12 but do not at any time have or open an account with eROI to receive any other Services, these Terms of Service will expire when all Deliverables have been fully completed and delivered to You, You have accepted all Deliverables as described herein, and You have paid all fees due to eROI in full.
b. Termination. Subject to the Terms set forth herein, the Terms of Service may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receiving notice describing such breach.
c. Termination of Services. Except for Services to develop and design a Web Site or an Email Template, You may terminate your account upon thirty (30) days prior notice (in writing or via email) to eROI, at which time these Terms of Service will terminate.
d. Effect of Termination. Upon termination of these Terms of Service, You will cease all use of the Services. You will pay to eROI all outstanding amounts due. If these Terms of Service are terminated before any Web Site or Email Template design and development work is completed, You shall pay eROI for all services rendered and work performed up to the effective date of termination for any reason. eROI will provide to You an invoice for the foregoing fees within thirty (30) days of the effective date of the termination. You shall pay the invoice within fourteen (14) days of receipt. e. Survival. The following shall survive termination or expiration of these Terms of Service for any reason: All definitions contained herein and Sections 4 (to the extent fees due have not been paid), 6, 7, 8, 9, 10, 11c, 11d, 12d, 12e, 12f, 13b, 14, 15d, 15e, 16, 17, 18, 19 and 20.
a. Confidential Information. “Confidential Information” means the (i) the Software, and (ii) all business and technical information not generally known to the public and labeled as “Confidential” or “Proprietary” by a party hereto. “Confidential Information” does not include information that is or becomes generally known or available to the public through no fault of the receiving party, is demonstrably known to the receiving party at the time of disclosure without violation of any confidentiality restriction and without any restriction on receiving party’s further use or disclosure, or is independently developed by the receiving party.
b. Restrictions. Each party will not: (i) use the other’s Confidential Information except as necessary to perform their obligations under these Terms of Service; (ii) disclose the other’s Confidential Information to any third party except to its employees as is reasonably required in connection with the party’s obligations or rights under these Terms of Service or to the extent necessary to comply with an order from a court, administrative agency or governmental body, provided reasonable notice is given to the other so that the other may contest such order or requirement; and (iii) fail to protect the other’s Confidential Information in a manner less protective of than how it protects its own Confidential Information, and no event in a manner that is less than a reasonable amount of care. Upon termination of these Terms of Service, each party will destroy or return to the other party all of the other’s Confidential Information in its possession.
All materials on the eROI’ Site (as well as the organization and layout of their websites) may be owned or copyrighted or licensed by eROI, its affiliates or its suppliers. No reproduction, distribution, or transmission of the copyrighted materials is permitted without the written permission of eROI. Any rights not expressly granted herein are reserved.
18. Service Updates
eROI reserves the right at anytime and from time to time to modify, discontinue, temporarily or permanently, the Services (or any part thereof, excluding web development Services) with or without notice. You agree that eROI shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services. You agree that the eROI shall have the right (but not the obligation) in their sole discretion to refuse or remove any content posted to your account.
19. Modification/No Waiver of Breach
eROI reserves the right at anytime, and from time to time, to modify any provisions of these Terms of Service (except for Sections 12 and 13, if applicable). Continued use of the Services shall signify consent to and acceptance of any such modifications. If you do not agree with any of the terms, as amended, either now or in the future, you agree to immediately terminate your account and discontinue Your use of the Services. No term or provision of these Terms of Service shall be deemed waived and no breach excused, unless such waiver or excusal shall be in writing and signed by eROI. Any consent by eROI to, or waiver of, a breach by you, whether expressed or implied, shall not constitute a consent to, waiver of, or excuse for, any other breach or any subsequent breach, except as may be expressly provided in the waiver or consent.
20. General Information
These Terms of Service shall be governed in all respects by the laws of the State of Oregon as such laws are applied to agreements entered into and to be performed entirely within Oregon between Oregon residents. The parties consent to the sole and exclusive jurisdiction of the state and federal courts in Multnomah County, Oregon for any dispute relating to, arising out of, or in connection with these Terms of Service. If any provision of these Terms of Service is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. Any failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. Except for obligations to make payments, neither party shall be in breach of these Terms of Service to the extent any delay or failure to perform results from causes beyond the reasonable control of that party. You may not assign or transfer these Terms of Service or your rights/responsibilities in your account, and any attempt to the contrary shall be null and void. All notices required or permitted by these Terms of Service will be in writing, will reference the parties hereto and the Services to which the notice relates, and will be deemed given when received by the other when received via certified mail, courier, or email sent to an address the parties will designate and containing in the subject line the word “NOTICE” and an identification of what the notice contains or regards. The parties hereto are independent contractors, and these Terms of Service shall not be construed as creating any agency, partnership, or any other form of legal association (other than as expressly set forth herein) between the parties. These Terms of Service and related Estimate(s) set forth the entire understanding and agreement between us with respect to the subject matter hereof. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect.