General Terms & Conditions
CANELLA STUDIO® SERVICES AND PRODUCTS
TERMS AND CONDITIONS OF USE
Canella Studio ("Canella Studio") provides businesses and organizations with a variety of services to create, launch, and manage online email campaigns (the "Email Marketing Product"), and a variety of related offerings, including corporate design and text editing services. The Email Marketing Product, and any related offerings are referred to in these Terms and Conditions of Use as the ("Products"). Canella Studio’s Products may not be used for the sending of unsolicited email (sometimes called "spam"). See our Anti-Spam Policy, which is incorporated into these Terms and Conditions of Use by reference.
The following are the terms and conditions of Use the Service and Use of the Products. By clicking the ‘I accept’ button on the sign-up page, by paying Canella Studio for service or by accessing the Canella Studio services via any API interface, you accept these terms and conditions of Use.
1. Copyright and Trademark Information
Copyright © 2009 Canella Studio. All Rights Reserved.
This web site, and the information which it contains, is the property of Canella Studio and is protected from unauthorized copying and dissemination by Canadian copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, "Canella Studio" and the Canella Studio logo are registered trademarks of Canella Studio, under the applicable laws of Canada and/or other countries. Other Canella Studio product or service names or logos appearing in this Site are either trademarks or registered trademarks of Canella Studio. The absence of a product or service name or logo from this list does not constitute a waiver of Canella Studio’s trademark or other intellectual property rights concerning that name or logo.
2. Representations and Acknowledgements
Subject in each case to the terms listed in the remainder of this Agreement (as defined in Section 3 below), you hereby represent, acknowledge and agree that:
* The Products may not be used for the sending of unsolicited email (sometimes called "spam").
* The Products may only be used for lawful purposes.
* The Email Marketing Product will be subject to monthly subscription fees. The Email Marketing Product may also be subject to per message and overage charges. For more information on fees, see Section 4 below and the Fee Schedule.
* You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Products.
* You agree to import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you ("Permission Based Lists") in connection with your use of the Products. Mere agreement of a person or entity to participate in a survey is not consent to receive correspondence from you. You hereby covenant that you shall not use any other lists in connection with your use of the Products.
* You acknowledge and agree that not all email messages sent through use of the Products will be received by their intended recipients.
* Every email message sent by you in connection with the Products must contain the "unsubscribe" link that allows the recipient to remove themselves from your mailing list.
* You will comply with the restrictions on content of email messages and activities using the Products as set forth or referenced in this Agreement.
* You acknowledge and agree that you are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act) of any email message sent by you using the Products.
* You agree that the "from" line of any email message sent by you using the Products will accurately and in a non-deceptive manner identify your organization, your product or your service.
* You agree that the "subject" line of any email message sent by you using the Products will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
* You agree to include in any email message sent by you using the Products your valid physical address, which may be a valid post office box meeting the registration requirements established by the Canada Postal Service.
* You agree that in any email message sent by you using the Products you will not include any incentives (e.g., coupons, discounts, awards) that encourage a recipient to forward the email message to another recipient.
* You will adopt and maintain the Privacy Policy, which may be modified by Canella Studio from time to time.
* If you are accessing or using the Products through a third party service or web site ("Third Party Service"), you will abide by these Terms and Conditions of Use regardless of anything to the contrary in your agreement with such third party. You shall not use such Third Party Service to avoid the restrictions set forth in these Terms and Conditions of Use.
3. Products and Support
The Products are provided subject to these Terms and Conditions of Use, as they may be amended by Canella Studio, and any guidelines, rules or operating policies that Canella Studio may establish and post from time to time (collectively, the "Agreement"). By posting updated versions of the Agreement on the canellastudio.com website, or otherwise providing notice to you, Canella Studio may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Products in its sole discretion. Except as otherwise provided in the Agreement, all such changes shall become effective upon the posting of the revised Agreement on the Product or at Canella Studio's website. The Products are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Products. If you are using the Products in your capacity as an employee, you must have the ability to bind your employer by your use of the Product. You must complete the registration form on the Canella Studio sign up web page in order to use the Products. You shall provide true, accurate, current, and complete information about yourself as requested in the registration form.
If you are accessing or using the Products through a Third Party Service, you agree and acknowledge that Canella Studio is not responsible or liable for any actions of such third party or for any aspect or result of such Third Party Service. You use such Third Party Service at your own risk. You further agree and acknowledge that Canella Studio may terminate such Third Party Service’s ability to interact with the Products at any time, with or without notice, and in Canella Studio’s sole discretion, with no liability to you or the third party.
4. Email, Permission Practices, Image Hosting & Prohibited Content
4.1 Subscriber Opt Out. Every email message sent in connection with the Products must contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list and a link to the then current Privacy Policy. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to Canella Studio. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within 10 days of submission, and update the email addresses to which messages are sent through your Canella Studio account. Under the CAN-SPAM Act of 2003, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement.
4.2 Permission Practices. You agree to import, access or otherwise use only Permission Based Lists in connection with your use of the Products. You hereby covenant that you shall not use any other lists in connection with your use of the Products. If you have used the Canella Studio feature that allows you to request a recipient to confirm that you have his or her permission to send emails to him or her, and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send emails to that recipient. Without limiting the foregoing, you agree that you shall not utilize the Product to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting. You cannot mail to distribution lists, newsgroups, or spam or unsolicited email addresses. You cannot copy a Canella Studio template or any other features or functionality from the Products and use them for any purpose other than sending email messages from the Products. Emails that you send through the Product may generate spam complaints from recipients. As a matter of privacy, Canella Studio cannot share with you the email addresses of those who complain about your email campaign. You are responsible for ensuring that your email campaigns do not generate a number of spam complaints in excess of industry norms. Canella Studio, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. Canella Studio will terminate your use of its Products if Canella Studio determines that your level of spam complaints is higher than industry norms.
4.3 Footers. For every email message sent in connection with the Products, you acknowledge and agree that Canella Studio may add an identifying footer stating who is the e-marketing provider or a similar message.
4.4 Images. Images hosted by Canella Studio on Canella Studio controlled servers may only be used in connection with the Products and for no other purpose whatsoever. To the extent you use images provided by Canella Studio, Canella Studio hereby grants to you a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state solely in connection with your use of the Products.
4.5 Prohibited Content. Canella Studio prohibits the use of the Products, Services or web site by any person or entity that:
* Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
* Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
* Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
* Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
* Posts or discloses any personally identifying information or private information about children without their consent (or their parents’ consent in the case of a minor).
* Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
* Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
* Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.
* Engages in any libelous, defamatory, scandalous, threatening, harassing activity.
* Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
* Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
4.6 Right to Disable Access. Canella Studio, at its own discretion, may immediately disable your access to the Products without refund if Canella Studio believes in its sole discretion that you have violated any of the policies listed above or elsewhere in this Agreement.
5. Restrictions and Responsibilities
5.1 No Rights in Software. This is an Agreement for services and access to this web site, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Products or any software, documentation, or data related to the Products ("Software"); remove any proprietary notices or labels from the Products or any Software, modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software.
Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Product, any component thereof, any documentation provided in connection with the Products or the Service, or any content, including but not limited to newsletters, distributed to you by Canella Studio in connection with the Products. Violation of these restrictions may result in the termination of this Agreement.
5.2 Permitted Use of the Products. The Products shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that Canella Studio perform such work at its standard professional services rates. Canella Studio can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; or (ii) to permit you to reverse engineer parts of the Product in order to obtain such source code, but only to the extent necessary to achieve such interoperability or (iii) provide you with the information that you need regarding the Product for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.
5.3 Compliance with Laws; Monitoring. You shall use the Products only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and regulations thereunder and all other applicable Canadian, provincial, local and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws). Although Canella Studio has no obligation to monitor the content provided by you or your use of the Products, Canella Studio may do so and may block any email messages, remove any such content or prohibit any use of the Products that Canella Studio believes may be (or is alleged to be) in violation of the foregoing.
5.4 Indemnification. You hereby agree to defend, indemnify and hold harmless Canella Studio and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages you distribute using the Products or (iii) arises from your activities or postings on the Canella Studio Community, (iv)otherwise arises from or relates to your use of the Products. In addition, you acknowledge and agree that Canella Studio has the right to seek damages when you use the Products for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
5.5 Your Information. In using the varied features of the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to Canella Studio. Canella Studio may use this information and any technical information about your use of the Products to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Products as a result of solicitation by a marketing partner of Canella Studio, Canella Studio may share your information with the marketing partner and the marketing partner may share related information with Canella Studio. Except as described above. Canella Studio will not provide your information, including your contact and account information, to third parties who you have not authorized to receive such information, except(i) as required by law or court order, including without limitation judicial process and law enforcement, or in the good-faith belief that such action is necessary to comply with law or a court order or (ii) if your Canella Studio account was terminated from due to unsolicited commercial email being sent from your Canella Studio account. Canella Studio will never sell or rent your contact lists to anyone without your permission and acknowledges your ownership right in your contact lists. In the event Canella Studio amends or revises the policy described in the immediately preceding sentence, it will provide advance notice of such amendment or revision.
5.6 Intellectual Property Rights in Your Content. You agree that you will not upload or transmit any contact lists, communications or content of any type to this web site or in connection with the Products that infringe, misappropriate or violate any rights of any party. By submitting ideas, concepts, inventions, or content to this web site or using them in connection with the Products, you agree that such submission is non-confidential for all purposes. If you make any such submission, you agree that you will not send or transmit to Canella Studio or to any third party using the Products, any communication or content that infringes or violates any rights of any party. If you submit any business information, ideas, concepts or inventions or content to Canella Studio by email, you agree such submission is non-confidential for all purposes. If you make any submission to this web site or if you submit any business information, idea, concept or invention to Canella Studio by email, you automatically grant—or warrant that the owner of such content or intellectual property has expressly granted—Canella Studio a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner.
6. Termination
You may terminate this Agreement at any time by calling Canella Studio Customer Support. There are no refunds for any fees paid. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT AND Canella Studio IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT AND ANY CREDIT CARD CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.
Canella Studio may terminate this Agreement or the Products, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. Canella Studio shall have no liability to you or any third party because of such termination or action.
Canella Studio may delete any of your archived data within 30 days after the date of termination. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. Canella Studio will provide upon request the list of unsubscribe requests from your account. Under the CAN-SPAM Act of 2003, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
If your account is classified (at Canella Studio's sole discretion) as inactive for over 120 days, Canella Studio has the right to permanently delete your subscriber data. Canella Studio will use good faith efforts to contact you via email prior to taking any permanent removal actions.
7. Warranty Disclaimer and Remedies
USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. Canella Studio DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED "AS IS" AND Canella Studio DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or nonperformance of the Products shall be for Canella Studio to use commercially reasonable efforts to adjust or repair the Products.
8. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL Canella Studio OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "Canella Studio") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF Canella Studio SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY.
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL Canella Studio OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "Canella Studio") BE LIABLE IF YOU AGAINST THIS AGREEMENT AND IN NO COMPLIANCE WITH THIS AGREEMENT VIOLATE THE CAN-SPAM ACT OF 2003 AND REGULATIONS THEREUNDER AND ALL OTHER APPLICABLE CANADIAN, PROVINCIAL, LOCAL AND INTERNATIONAL LAWS (INCLUDING BUT NOT LIMITED TO POLICIES AND LAWS RELATED TO SPAMMING, PRIVACY, OBSCENITY, OR DEFAMATION, COPYRIGHT AND TRADEMARK INFRINGEMENT AND CHILD PROTECTIVE EMAIL ADDRESS REGISTRY LAWS).
9. Links to Third-Party Web Sites
This web site may contain links to non-Canella Studio web sites. These links are provided to you as a convenience, and Canella Studio is not responsible for the content of any linked web site. Any non-Canella Studio web site accessed from this web site is independent from Canella Studio, and Canella Studio has no control over the content of that web site. In addition, a link to any non-Canella Studio web site does not imply that Canella Studio endorses or accepts any responsibility for the content or use of such web site.
10. No Implied Endorsements
In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by Canella Studio of that third party or of any product or service provided by a third party.
11. Client's Representations
You are responsible for maintaining the security of your account information, and files. Canella Studio will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents confirmation by email or by phone, or through a Third Party Service, if any, through which you access the Products. Canella Studio has no knowledge of your organizational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. Canella Studio shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets after presenting confirmation of right of use by email or by phone.
12. Forward-Looking Statements
You acknowledge that this web site contains "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 regarding Canella Studio. These forward-looking statements regarding Canella Studio are made as of the date they were first issued and were based on current expectations, estimates, forecasts and projections as well as the beliefs and assumptions of Canella Studio management. Words such as "expect," "anticipate," "should," "believe," "hope," "target," "project," "goals," "estimate," "potential," "predict," "may," "will," "might," "could," "intend," variations of these terms or the negative of these terms and similar expressions are intended to identify these forward-looking statements. Forward-looking statements are subject to a number of risks and uncertainties, many of which involve factors or circumstances that are beyond Canella Studio’s control. Canella Studio’s actual results could differ materially from those stated or implied in forward-looking statements due to a number of factors, including risk factors. Past performance is not necessarily indicative of future results. Canella Studio undertakes no intention or obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
13. Miscellaneous
13.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
13.2 Canella Studio and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
13.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind Canella Studio in any respect whatsoever.
13.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.
13.5 The Agreement shall shall be governed by the laws of the Province of Ontario, and Canadian Federal Law.
14. Additional Information
If you have any questions about the rights and restrictions above, please contact Canella Studio by email at service@canellastudio.com.
Copyright ©2009, Canella Studio. All Rights Reserved.
Revised July 1st, 2009