PLEASE READ THE USER AGREEMENT (the "AGREEMENT" or the "Agreement") BELOW.  BY USING THESE SERVICES, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE EXIT THIS SITE.

By using these Services, you are indicating that you are 18 years old or older, and agree to be bound by all of the terms in this Agreement.  You may print and keep a copy of this Agreement.  Fishbowl, Inc. ("Fishbowl") may change the terms in this Agreement at any time.  When the terms are changed, Fishbowl will notify you by placing a notice at www.fishbowl.com.  The changes also will appear in this document, which you can access at any time by clicking on the "Terms of Service Agreement" link found on www.fishbowl.com.  If you do not agree to be bound by the changes, you should not use the web site again.  If you use the web site after notification of a change in the Agreement, You are deemed to have accepted all of the changes and will be bound by all such changes, in addition to the terms which have not changed.

 

1. Services. Fishbowl will provide you with online email marketing services (“the Services”) and you agree to use the Services in accordance with the following terms and conditions:

A.      Database.  The Database consists of customer data which has been obtained by Fishbowl as a result of the Services.  Customer data includes but is not limited to, the customer’s name, email address, IP address and birth date information.

i.                     Ownership. You retain sole ownership of the Database during the term of this agreement, and grant Fishbowl the right to use the Database to perform its obligations under this Agreement.

 

ii.                   Database Management. Notwithstanding the above, you acknowledge and agree that Fishbowl will wholly manage the Database during the Term of this Agreement.  You further agree not to send, either directly or through any third party, any emails to the Database, other than through the Services.  You further agree not to disseminate the Database for use by other individuals or vendors during the term of this Agreement, to ensure that opt-in and unsubscribe services are maintained according to industry standards.

 

B.      List Collection Guidelines. Fishbowl will transmit messages only to users who have opted-in to receive messages from you through the Services (“Customers”).  For purposes of this Agreement, “opt-in” means making an affirmative action or statement consenting to receive messages from you though the Services.  Customers may opt-in by: (i) completing a sign-up form; (ii) clicking a “yes” checkbox on a web page, or (iii) providing a business card in a receptacle that clearly communicates to the Customer that they are opting to receive email communications from you by supplying their business card.  Fishbowl may refuse to deliver messages to Customers that have not, or that Fishbowl reasonably believes have not, opted-in to receive messages from you.  Fishbowl reserves the right to inspect all Point of Purchase (POP) materials and displays regarding the Services to ensure that they comply with this Section 1.B.

 

C.      Federal and State Email Restrictions. You agree not to use the Services to send messages which would violate the CAN-SPAM Act of 2003, 15 USC 7701 et seq., or its regulations, and/or the Children’s Online Privacy Protection Act (COPPA), 15 USC 6501 et seq., or its regulations, as each of these laws may be amended from time to time.  You further agree not to use the Services to send messages which would violate any state’s anti-SPAM or Child Protection Registry laws or regulations, (e.g. Utah and Michigan’s Child Protection Registry laws) as such laws may be enacted or amended from time to time.  Fishbowl will make every attempt to inform you of new state laws and regulations as they are enacted, but it is your sole responsibility to seek the advice of your own legal counsel to ensure that your use of the Services does not violate any state law.  You shall be solely responsible for any fees (e.g. monthly list cleansing fees) related to compliance with any state’s anti-SPAM or Child Protection Registry laws and regulations.  You further agree to notify Fishbowl of all complaints regarding e-mail messages within 48 hours of receipt of such complaints.

 

D.      Changes in Technology. Fishbowl reserves the right to upgrade, add and modify software, databases and proprietary programming and code used to provide the Services as Fishbowl deems necessary in its sole discretion.

 

2. Legal.  All text, software (including source and object codes), visual, oral or other digital material, photographs, information, data, graphics and all other content of any description available on the Web Site, or included in the Services (collectively, the "Content"), and all copyrights, trade marks, service marks, patents, patent registration rights, trade secrets, know-how, database rights, and all other rights in or relating to the Content (collectively, the "Intellectual Property") are owned by Fishbowl or its licensors, and are protected by copyrights, trademarks, service marks, international treaties or other proprietary rights and laws of the United States of America ("U.S."). 

 

1. The Services are also protected as a collective work or compilation under U.S. copyright and other laws and treaties. 

 

2. You may only use the Content, Services, or Intellectual Property, or access the Web Site, as expressly permitted in this Agreement and for no other purposes. 

 

3. Except as expressly provided in this Agreement, nothing contained herein shall be construed as conferring upon you any license or right, by implication, estoppel or otherwise, under copyright or other intellectual property rights, laws or treaties. 

 

4. Furthermore, you may not use any of Fishbowl's trademarks, trade names or service marks in any manner which creates the impression that such names and marks belong to, or are associated with, you or are used with Fishbowl's consent, and you acknowledge that you have no ownership rights in and to any of these names and marks. 

 

5. All present and future rights in, and title to, the Services (including the right to exploit the Services and any portions of the Services over any present or future technology) are reserved to Fishbowl for its exclusive use.

 

3. Grant of License. As a User of the Services, Fishbowl grants you a personal, nonexclusive, nontransferable, non-assignable, revocable, limited license to access and use the Services as specified in this Agreement.

 

4. Limitations on Use. You may not use the Service or the Content for any illegal purpose or in any manner inconsistent with this Agreement.

 

1. The Content on this Web Site is for personal, non-commercial use only and not for commercial exploitation. 
2. No hard copy or electronic duplication, transmission, redistribution, or publication of any Content is allowed other than in conjunction with your personal, non-commercial use, and you may not use or include any Content in any other print or electronic publication or service. 
3. You may not decompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicense, or create derivative works from the Web Site or the Content, nor may you use any network monitoring or discovery software to determine the site architecture, or extract information about usage or users.
4. You may not use any robot, spider, other automatic device, or manual process to monitor or copy the Web Site or the Content without Company’s prior written permission.
5. You may not copy, modify, reproduce, download, republish, distribute, display, or transmit for commercial, non-profit or public purposes all or any portion of the Web Site or the Content, except to the extent permitted in this Agreement.
6. You may not upload to the Web Site any data, material, code, virus, or any other digital information that is intended to, or has the effect of, rendering all or parts of the Web Site or the Content ineffective, unavailable, or unusable, or which uses, or attempts to use, the Web Site for any purpose not intended by the Company. 
7. You may not use or otherwise export or re-export the Web Site or any portion thereof, or the Content or any software available on or through the Web Site, in violation of the export control laws and regulations of the United States of America or any other country in which you may be using the Web Site.
8. You shall not alter or remove any trademark, copyright or other notice from any copies of the Content. 
9. You may not sublicense, assign or transfer this license.
10. Any unauthorized use of the Web Site, Service or Content is prohibited.
11. Your violation of any of the foregoing provisions may result in civil or criminal liability. 
12. Requests regarding use of the Web Site, Service or Content for any purpose other than personal, non-commercial use should be directed to privacy_ques@fishbowl.com.

 

5. User Conduct.  You are solely responsible for your information and warrant that you have all legal rights and licenses necessary for you to comply with Section 3. 
1. In connection with the Services and Content, You shall not use the Services to send emails which:

i.                     infringe on the intellectual property rights or privacy/publicity rights of any third party;

ii.                   violate any law or regulation;

iii.                  are defamatory, harmful to minors, or obscene;

iv.                  contain any viruses or other computer programming routines or code that are intended to damage, detrimentally interfere with, surreptitiously intercept or appropriate any system, data, or personal information; or

v.                    are materially false or misleading.

2. You shall not use the Services to send emails, the subject lines of which are misleading in any way as to their nature, and shall ensure that the subject lines of all emails sent or proposed to be sent accurately reflect the content of such emails.
3. You shall notify Fishbowl of all complaints regarding emails within 48 hours of receipt of such complaints 

 

6. Linking. Fishbowl does not control the content of the web sites of third parties and is not responsible for any representations, advice or other assistance, or any errors or inaccuracies contained therein, that is shown on those web pages, or otherwise provided to Users or obtained from the third parties who own such web sites.

 

7. Third Party Content. Third party content may appear on this Web Site or may be accessible via links from this Web Site.  Fishbowl is not responsible for, and assumes no liability for, any mistakes, misstatements of law, defamation, slander, libel, omissions, falsehood, obscenity, pornography or profanity in the statements, opinions, representations or any other form of content contained in any third party content appearing on the Web Site. You understand that the information and opinions in the third party content is neither endorsed by, nor does it reflect the belief of, Fishbowl.  User hereby irrevocably waives any claim against Fishbowl in connection with any of the foregoing.

 

8. Restrictions on Linking and Framing Activities. Fishbowl is concerned about the integrity of the Web Site when it is accessed in a manner solely determined by third parties or viewed in a setting solely created by third parties. Specifically, Fishbowl is concerned with activities such as linking to an internal or subsidiary page of the Web Site that is located one or several levels down from the Home Page ("deep linking" or "deep link"), or bringing up or presenting content of the Web Site within another Web site ("framing" or "frame"). In this regard, without limiting the provisions contained in this Agreement, You must make a specific request for, and secure permission from, Fishbowl prior to deep linking to, or framing, this Web site or any of its content, or engaging in similar activities. If you would like to deep link to, or frame, this Web site, or any of its Content, You must request permission from Fishbowl by writing to privacy_ques@fishbowl.com.

 

9. Errors and Corrections. Fishbowl does not represent or warrant that the Web Site will be error-free, free of viruses or other harmful components, or that defects will be corrected; however, it will make reasonable efforts to correct any such problems if notified by a User.  Such notice, with as much detail as possible, should be sent to privacy_ques@fishbowl.com. Fishbowl does not warrant or represent that the Content will be correct, accurate, timely, or otherwise reliable. However, Fishbowl will make reasonable efforts to correct errors or problems if notified in writing about the error or problem.  Notice of such problems, with as much detail as possible, should be sent to privacy_ques@fishbowl.com. Fishbowl may make improvements or changes to its features, functionality or Content at any time.

 

10. DISCLAIMER.  THE WEB SITE IS PROVIDED ON AN "AS IS" BASIS. FISHBOWL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY OR INTEGRATION AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE.  

 

11. Warranties.
1. Internet. You acknowledge that Fishbowl provides the Services through the Internet to the extent commercially reasonable, and subject to outages and communication and data flow failures, interruptions and delays inherent in Internet communications.  You and your customers are responsible for acquiring and maintaining access to the Internet in order to access and use the Services. Fishbowl acknowledges that problems with the Internet, including equipment, software or network failures, impairments or congestion, or the configuration of Fishbowl’s or your or a customer’s system, may prevent, interrupt or delay the Services.  Fishbowl will not be liable for any such delay, interruption, suspension or unavailability of email and web-based Services. 

 

2. Emails.  You understand and agree that Fishbowl is not responsible for undelivered emails or for emails that do not appear in a customer’s email window as previewed.  You understand and agree that once emails are approved for delivery, you may not rescind or otherwise interrupt delivery of the emails. 

 

3. Maintenance. You and your customers acknowledge that unforeseen downtime and unscheduled remedial maintenance of Fishbowl’s equipment, software and Internet access may interrupt the Services.  Fishbowl will use reasonable efforts to minimize the duration and impact of any such occurrence on access to or use of the Services.

 

4. Disclaimer. THE FOREGOING WARRANTIES ARE MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, INTEGRATION, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OF TRADE OR COURSE OF PERFORMANCE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.  FISHBOWL DOES NOT WARRANT THAT THE OPERATION OF, ACCESS TO OR USE OF ALL OR ANY PART OF THE SERVICES OR THE EQUIPMENT WILL BE CONTINUOUS, UNINTERRUPTED OR ERROR FREE, THAT THE RESULTS ARISING OUT OF THE SERVICES OR THE USE OF THE EQUIPMENT WILL BE ACCURATE, COMPLETE OR ERROR FREE.

 

5. Remedy. IF The results obtained from the SERVICES are inaccurate, incomplete or erroneous due to the fault of Fishbowl, Fishbowl’S sole obligation will be to REPERFORM THE SERVICES at no additional charge.

 

12. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES SHALL FISHBOWL BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND RESULTING FROM YOUR USE OF THE WEB SITE. FISHBOWL DISCLAIMS ALL RESPONSIBILITY FOR ANY LOSS, INJURY, CLAIM, LIABILITY, OR DAMAGE OF ANY KIND, INCLUDING INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND EXPENSES) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICE, WEB SITE, CONTENT OR THIRD PARTY MATERIALS THEREIN INCLUDING, WITHOUT LIMITATION (A) ANY ERRORS IN, OR OMISSIONS FROM, THE WEB SITE AND THE CONTENT INCLUDING, BUT NOT LIMITED TO, TECHNICAL INACCURACIES, TRANSLATIONS, AND TYPOGRAPHICAL ERRORS; (B) ANY THIRD PARTY WEB SITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS IN THE WEB SITE INCLUDING, BUT NOT LIMITED TO, ANY ERRORS IN OR OMISSIONS THEREFROM; (C) THE UNAVAILABILITY OF THE WEB SITE OR ANY PORTION THEREOF; (D) YOUR USE OF, OR INABILITY TO USE, THE WEB SITE; (E) YOUR USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE WEB SITE; OR (F) ANY COMPUTER VIRUSES, "WORMS," OR "TROJAN HORSES," ANY OTHER TYPE OF DESTRUCTIVE OR MALICIOUS COMPUTER CODE (BY WHATEVER NAME IT IS CALLED), OR ANY UNAUTHORIZED COMPUTER CODE WHICH IS ATTACHED TO, OR MADE A PART OF, THE WEB SITE BY ANY PERSON, GROUP, OR ORGANIZATION.  TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS PROHIBITED, FISHBOWL’S SOLE OBLIGATION TO YOU FOR DAMAGES SHALL BE LIMITED TO FIFTY DOLLARS ($50).

 

13. Unlawful Activity. Fishbowl reserves the right to investigate complaints or reported violations of the Agreement and to take any action Fishbowl deems appropriate including, but not limited to, reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to User profiles, email addresses, usage history, posted materials, IP addresses and traffic information.

 

14. Authorized Third Parties. Fishbowl reserves the right to allow third parties to provide any necessary services to Fishbowl and/or to Users to enable Fishbowl to provide the Service.

 

15. Remedies for Violations. Fishbowl reserves the right to seek any and all remedies available at law and in equity for violations of this Agreement including, but not limited to, the right to block access from a particular Internet address to the Web Site.

 

16. Governing Law and Jurisdiction.  This Agreement will be governed by the laws of the Commonwealth of Virginia, without regard to any provision of Virginia law that would require or permit the application of the substantive law of any other jurisdiction.  You agree to submit to the exclusive jurisdiction of the courts of Fairfax County, Virginia and the U.S. District Court for the Eastern District of Virginia, Alexandria Division.

 

17. Access Outside the United States. Fishbowl does not represent that the Content, Service or the Web Site are appropriate or available for use in countries outside the U.S. If you choose to access the Web Site from outside the U.S., You are responsible for compliance with foreign and local laws, if applicable.

 

18. Privacy. Your use of the Web Site is subject to Fishbowl’s Privacy Policy, available through this link and from any page on the Web Site.

 

19. Severability of Provisions. This Agreement incorporates by reference the Privacy Policy, and together they constitute the entire agreement with respect to access to, and use of, the Web Site. If any provision of this Agreement is unlawful, void or unenforceable, then that provision shall be deemed severable from the remaining provisions and shall not affect their validity and enforceability.

 

20. Modifications to this Agreement. Fishbowl reserves the right to change this Agreement at any time. Updated versions of the Agreement will appear on the Web Site and are effective immediately. You are responsible for regularly reviewing the Agreement. Continued use of the Web Site after any such changes constitutes your consent to such changes. 

 

21. Headings.  The section titles in the Agreement are used solely for the convenience of you and Fishbowl, and they have no legal or contractual significance.

 

22. Survival.  Notwithstanding any other provisions of this Agreement, or any general legal principles to the contrary, any provision of this Agreement that imposes or contemplates continuing obligations on a party will survive the expiration or termination of this Agreement.

 

YOU CONFIRM YOUR AGREEMENT TO VOLUNTARILY USE THE SERVICE AND ACCESS THE CONTENT SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT BY USING THIS WEB SITE.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE EXIT THIS WEB SITE.

 

Last Updated: March 4, 2008