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ANTI-SPAM / PERMISSION POLICY

The NMS is a permission-based email management and delivery service for organizations who own their own lists of customers, members, employees or other people who have asked to receive email.

The NMS is a powerful communication tool designed for permission-based communications ONLY. Our customers use our service to send text or HTML e-mail to confirmed opt-in lists of contacts, members, employees and customers. The NMS's policy strictly forbids the use of our service for transmission of unsolicited bulk or commercial e-mail. Our tools do not allow list imports and we have designed The NMS System around a strict "confirmed opt-in" model. In addition, all NMS customers have agreed not to use the system to send unsolicited e-mail.

An NMS customer may only use the system to send e-mail to individuals who have expressly indicated through a "confirmed opt-in" process that they want to receive the type of e-mail communication being sent. Additionally, the NMS customer is advised to indicate in the e-mail newsletter that the recipient is receiving the mail based on the fact that they indicated an interest in receiving the type of information being sent in a"confirmed opt-in" list.

Every e-mail that is sent out using The NMS System, contains an "Unsubscribe" option allowing individuals to choose to be excluded from all future mailings.

What to do if you believe you've been spammed by an NMS User.

Although we have designed our system to be a powerful "anti-spam tool", abuses may slip through. If you believe you have received an unsolicited e-mail using the The NMS system (or what appears to be the The NMS system), please take a moment to tell us about it. Please forward a copy of the offending e-mail (including the full headers) to abuse@TheNMS.com. We are strong believers in permission-based communication, and do not tolerate "spam." We will investigate and, if abuse is proven, will take immediate, appropriate action to eliminate future abusive mailings from the individual(s) involved.

APPLICATION SERVICE AGREEMENT
BETWEEN TheNMS.com ("TheNMS.com") AND "Customer"

INTRODUCTION
The Newsletter Management System (the "NMS") is owned by TheNMS.com, a London, Ontario based partnership. The NMS provides a variety of tools and resources for Customer to collect permission-based e-mail addresses and to create, distribute, and manage online e-mail campaigns. This service may not be used for the sending of unsolicited e-mail (See TheNMS.coms Spam/Permission Policy).

The following are the terms and conditions for use of the NMS. By checking the "I agree to the above Application Service Agreement" box on the order page or after logging in to the NMS System for the first time, Customer accepts the following terms and conditions.

SECTION 1.0 INTERPRETATION

1.1 "Account" means the Customer's means of access to the NMS web application including its newsletter editing tools and Customer's Marketing Database.

1.2 "Account Information" means the user ID and password Customer uses to access its Account.

1.3 "Agreement" means this Application Service Agreement.

1.4 "Bandwidth" means the total megabytes of data transmitted by e-mail sent from the Customer's Account. "Additional Bandwidth" means the amount of Bandwidth that exceeds the maximum Bandwidth of the Account's Service Level as determined in Subsection 3.2.A.

1.5 "Billing Date" means the numerical date each Monthly Interval that Customer is billed for Monthly Subscription Fees. The Billing Date is the same date that Customer created the NMS Account. If the Billingl Date is greater than the final day of the current month, then the Billing Date is the final date of the current month.

1.6 "Contact Information" means the Customer's name, address, email address and other private information provided to TheNMS.com to create an Account.

1.7 "Current Subscriber Price List" means the schedule of Account fees for the various Service Levels. This schedule is found on thenms.com

1.8 "Marketing Database" means the database that stores e-mail addresses and other personal information of individuals who have indicated their desire to receive marketing or information material from Customer.

1.9 "Monthly Interval" means the one month period that Customer has access to its NMS Account. The period commences and ends at 12am of the Billing date of each month.

1.10 "Monthly Subscription Fees" means fees, which vary by Service Level, that are charged to Customer at the beginning of each Monthly Interval in advance to access its Account on the NMS for one Monthly Interval. The current fee is listed on the Current Subscriber Price List.

1.11 the "NMS" means the Newsletter Management System that allows Customer to create and distribute electronic marketing or information newsletters to members of a Marketing Database that the NMS helps Customer build, store, and monitor. The NMS includes the material on the website and the software that the NMS utilizes.

1.12 "Privacy Policy" means TheNMS.com's guideline, posted on the NMS website, about how it acquires and uses Customer's personal information.

1.13 "Service Level" means the type of Account (currently Basic, Standard, Pro, and Custom) which provides different amounts of maximum monthly Bandwidth, Storage and features. Each Service Level has different Setup Fees, Monthly Subscription Fees, and Usage Fees.

1.14 "Setup Fees" means any fees required to set up an Account with the NMS. Currently, Setup Fees apply only to the Custom Service Level and these fees are determined on an individual basis by TheNMS.com.

1.15 "Spam/Permission Policy" means TheNMS.coms written guidelines posted on the NMS website that outlines permissible e-mail marketing procedures for use with the NMS.

1.16 "Storage" means the amount of megabytes of data stored in the Customer's Account. "Additional Storage" means the amount of Storage that exceeds maximum Storage of the Account Service Level as determined in Subsection 3.2.B.

1.17 "Usage Fees" means any fees charge in relation to the Customers Account in addition to the Setup Fees and the Monthly Subscription Fees, including fees for Bandwidth and/or Storage used by Customer beyond his subscribed Service Level. The rates for the Usage Fees are listed on the Current Subscriber Price List.

SECTION 2.0 RIGHTS GRANTED

2.1 Upon payment of

  1. any required Setup Fees;
  2. the Monthly Subscription Fee (in advance) for the chosen Service Level of Customer's Account; and
  3. providing TheNMS.com with the required Customer Contact Information, TheNMS.com shall create an Account to permit Customer to access the NMS web application. Customer may use the Account to create and distribute e-mail newsletters and marketing material to any subscriber in the Marketing Database.

2.2 Customer acknowledges that Account features vary by the chosen Service Level. Each Service level has a permitted maximum monthly Bandwidth and Storage. Customer agrees that should its Account exceeds the maximum Bandwidth or Storage for the Monthly Interval, he will be responsible for Usage Fees that will be billed at the Customer's next Billing Date (as detailed in the Fees Section of this Agreement).

2.3 Customer acknowledges and agrees that this Agreement is an agreement for services. Customer is not granted a license to use any software.

2.4 Customer agrees that the Account shall be for Customer's sole use and not for the benefit of any third party. Customer shall not commercialize any aspect or product of the NMS without TheNMS.com's written permission.

2.5 Customer shall 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 the NMS. Customer shall not copy, modify, translate, or create derivative works from the NMS.

2.6 Customer shall not remove any proprietary notices or labels from the NMS.

2.7 Customer acknowledges that the NMS, the documentation and the contents of the NMS website are the property of TheNMS.com or its licensors and are protected by the trademark, patent and copyright laws of Canada and in other countries. Customer agrees that it will not store, copy, modify or reproduce the above except in compliance with this Agreement.

SECTION 3.0 FEES

3.1 Customer agrees to pay TheNMS.com any required Setup Fees and the Monthly Subscription Fee (in advance) to open an Account on the NMS.

3.2 Customer agrees that at the Billing Date of each Monthly Interval, Customer shall pay TheNMS.com the Monthly Subscription Fee for the upcoming Monthly Interval and any Usage Fees that Customer incurred in the previous Monthly Interval.

  1. Additional Bandwidth for Usage Fees is determined by the cumulative total of Bandwidth that was used by the Account during the Monthly Interval in excess of the maximum Bandwidth for the Account's Service Level.
  2. Additional Storage for Usage Fees is determined by the maximum amount of Storage used in the Account at any time during the Monthly Interval in excess of the maximum Storage for the Account's Service Level.
  3. The rates for the Additional Bandwidth and Additional Storage are listed on the Current Subscription Price List [LINK TO PAGE].

3.3 Customer may at any time request that TheNMS.com upgrade the Service Level of Customer's Account provided Customer agrees to pay TheNMS.com any required Setup Fees and the new Monthly Subscription Fee.

3.4 For all fees detailed in this Section, Customer authorizes TheNMS.com to charge Customer's Credit Card for all fees as they become due.

3.5 Customer acknowledges that TheNMS.com may terminate or suspend this Agreement for non-payment of any fees detailed in this Section when they become due.

3.6 Customer agrees that TheNMS.com may amend the rates and charges for the NMS at any time provide it gives customer thirty (30) days notice. Notice of any rate change will be provided to Customer by e-mail through the Contact Information provided by the Customer or by notice on the NMS website. These rate changes will be reflected on the Current Subscriber Price List.

3.7 Customer agrees that if TheNMS.com authorizes Customer to pay by cheque, TheNMS.com will apply a surcharge of $20 for any NSF cheques.

SECTION 4.0 WARRANTIES

4.1 Warranty

A. TheNMS.com WARRANTS THAT:

  1. THE APPLICATION WILL BE OF A PROFESSIONAL, WORKMANLIKE QUALITY, CONSISTENT WITH THE PREVAILING STANDARDS OF THE INDUSTRY; AND
  2. IT HAS THE AUTHORITY TO LICENSE THE APPLICATION FOR THE PURPOSES SET FORTH IN THIS AGREEMENT.

4.2 Limitations of Warranty

A. UNLESS EXPRESSLY PROVIDED IN THIS AGREEMENT, TheNMS.com, ITS LICENSORS, EMPLOYEES AND AGENTS DO NOT WARRANT:

  1. THAT THE FUNCTIONS CONTAINED IN THE APPLICATION WILL MEET THE CLIENT'S REQUIREMENTS;
  2. THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE; OR
  3. THAT THE APPLICATION WILL HAVE THE CAPACITY TO MEET THE DEMAND DURING SPECIFIC HOURS.

B. TheNMS.com, ITS EMPLOYEES, LICENSORS, WILL NOT BE LIABLE FOR ANY CLAIM FOR:

  1. PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES;
  2. DAMAGES FOR LOSS OF PROFITS OR REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF USE OR LACK OF AVAILABILITY OR CLIENT MATERIALS OR FACILITIES, INCLUDING ITS COMPUTER RESOURCES, SOFTWARE AND ANY STORED DATA;
  3. INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES;
  4. CONTRIBUTION, INDEMNITY OR SET-OFF IN RESPECT OF ANY CLAIMS AGAINST CLIENT;
  5. ANY DAMAGES WHATSOEVER RELATING TO THIRD-PARTY PRODUCTS, CLIENT MATERIALS OR ANY GOODS OR SERVICES NOT DEVELOPED OR PROVIDED BY TheNMS.com; OR
  6. ANY DAMAGES WHATSOEVER RELATING TO INTERRUPTION, DELAYS, ERRORS, OR OMISSIONS EVEN IF TheNMS.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OCCURRING.

C. TheNMS.com WILL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, OR DESTRUCTION OF CLIENT'S DATA FILES, PROGRAMS, PROCEDURES, OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS, OR ANY OTHER METHOD, UNLESS SUCH ACCESS, ALTERATION, THEFT OR DESTRUCTION IS CAUSED BY TheNMS.comS GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.

D. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TheNMS.com GIVES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, IN RELATION TO ALL ASPECTS OF THE APPLICATION WHETHER ARISING BY STATUTE, FROM A COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE.

4.3 Remedies

A. IN THE EVENT OF A BREACH OF WARRANTY THE CLIENT'S SOLE AND EXCLUSIVE REMEDY IS THE REPAIR OF THE DEFECTIVE PORTION OF THE APPLICATION BY TheNMS.com WITHIN ONE WEEK OF BEING PROVIDED NOTICE BY CLIENT.

B. IN THE EVENT THAT TheNMS.com IS UNABLE TO REPAIR THE DEFECTIVE PORTION OF THE APPLICATION WITHIN ONE WEEK, THE CLIENT'S SOLE AND EXCLUSIVE REMEDY SHALL BE THE RIGHT TO BE REFUNDED THE FEE PAID BY CLIENT FOR THE CURRENT MONTHLY INTERVAL AND THE RIGHT TO IMMEDIATELY TERMINATE THIS AGREEMENT.

SECTION 5.0 TERMINATION

5.1 In this Section, "Date of Termination" means the date notice is sent by either party notifying the other party of their intent to terminate this Agreement according to this Section.

5.2 TheNMS.com may terminate this Agreement at any time, without a refund, should customer violate any provision of this Agreement or the Spam/Permission Policy provided TheNMS.com gives Customer written or e-mail notice.

5.3 TheNMS.com may terminate this Agreement without cause by providing written or e-mail notice to Customer. TheNMS.com shall refund the prorated portion of unused Monthly Subscription Fees determined by the number of days remaining in the Monthly Interval as of the Date of Termination divided by the number of days in the Monthly Interval. Except for the refund, TheNMS.com shall have no liability to Customer or any third-party because of such termination.

5.4 Customer may terminate this Agreement by providing written or e-mail notice to TheNMS.com before the next advanced Billing Date. Customer will have access to its account until the end of the Monthly Interval.

5.5 Any e-mail notice under this Section shall have "Subscription Termination" in its subject heading in order to be valid.

5.6 Termination of this Agreement will not relieve Customer of its obligations to make payments to TheNMS.com for any outstanding fees due prior to the Date of Termination.

5.7 TheNMS.com shall delete the Marketing Database and Account Information archived under Customer's Account thirty (30) days after the Date of Termination. TheNMS.com will provide Customer with a copy of any data archived under Customer's Account provided TheNMS.com receives notice before the 30th Day after the Date of Termination.

SECTION 6.0 CONFIDENTIALITY, SECURITY AND ACCEPTABLE USE

6.1 TheNMS.com agrees to use all Customer Account Information and Contact Information according to TheNMS.com's current Privacy Policy.

6.2 Customer acknowledges that TheNMS.com can not ensure the privacy and authenticity of any information that Customer sends to or receives from TheNMS.com. Customer agrees that TheNMS.com will not be responsible for any damages incurred if the parties communicate over the internet or by e-mail.

6.3 Customer agrees not to disclose its NMS Account Information to any third party. Customer agrees that it is solely responsible for all use of its NMS Account and that it will put reasonable security procedures in place regarding its use. Customer agrees that it will immediately notify TheNMS.com of any unauthorized use of its NMS Account.

6.4 Customer agrees that it will not use third-party mailing lists in connection with the NMS and the Customer's Account. Customer agrees that it will comply at all times with TheNMS.com's current Spam/Permission policy.

6.5 Customer represents and warrants that it has and will have the informed consent; according to applicable privacy laws, of every individual listed in its Marketing Database and that they have consented to their information being stored with the NMS.

6.6 Customer agrees to use the NMS for lawful purposes. This includes transmission or solicitation of any material that violates Canadian Federal, Provincial or other laws that may apply. This includes material that is obscene, threatening, harassing, libelous or in any way a violation of intellectual property laws.

6.7 Customer agrees that it is prohibited from violating, or attempting to violate the security of the NMS. Any violations may result in criminal and/or civil liabilities to Customer. TheNMS.com will investigate any alleged violations and will cooperate with law enforcement agencies if a criminal violation is suspected. Examples of violations of security of the NMS include, without limitation, the following:

  1. Accessing data not intended for Customer;
  2. Logging into a server or account Customer is not authorized to access;
  3. Attempting to copy, modify, or create a derivative work of any of Abstact's proprietary software;
  4. Attempting to probe, scan, or test the vulnerability of a system or breach security or authentication measures without proper authorization;
  5. Attempting to interfere with service of the NMS to any other NMS customer or interfere with TheNMS.com's access to the NMS including, without limitation, via means of overloading and crashing; and
  6. Taking any action in order to obtain services to which Customer is not entitled.

SECTION 7.0 INDEMNIFICATION

7.1 Customer agrees to indemnify TheNMS.com for any damages (including liabilities, legal costs and disbursements) incurred by TheNMS.com due to Customer violating, and TheNMS.com's subsequent enforcing, of any provision of this Agreement.

7.2 Customer agrees to indemnify TheNMS.com against all claims (including liabilities, legal costs and disbursements) made against TheNMS.com where Customer has violated TheNMS.com's Spam/Permission Policy or used the NMS for an unlawful purpose.

SECTION 8.0 MODIFICATION OF AGREEMENT

8.1 Customer agrees that TheNMS.com may amend this Agreement at any time. Notice of any amendment will be provided to Customer by e-mail through the Contact Information provided by the Customer or by notice on the NMS website.

8.2 Customer agrees that is responsible for providing TheNMS.com with up to date Contact Information. Customer agrees that TheNMS.com shall incur no responsibility for Customer's failure to provide up to date Contact Information.

SECTION 9.0 NOTICE

9.1 Notice may be provided to TheNMS.com at:

The NMS
1006 Blythwood Road
London, ON
N6H 5W1
Canada

E-mail: Please visit our feedback page by clicking here

9.2 Where required, TheNMS.com shall provide notice to Customer using the Customer Contact Information. It is the Customer's responsibility to ensure the Contact Information is correct. TheNMS.com is not responsible for incorrect Contact Information.

9.3 Unless expressly provided, notice is deemed to be provided when delivered to the recipient. E-mail notice is deemed to be provided when sent.

SECTION 10.0 NON-ENDORSEMENT OF LINKS

10.1 Customer acknowledges that links to other websites through the NMS website do not imply any endorsement or approval by TheNMS.com.

SECTION 11.0 ENTIRE AGREEMENT

11.1 This Agreement constitutes the entire agreement between the parties and cancels and supercedes all prior agreements, understandings, negotiations and discussions between the parties whether oral or written.

11.2 There are no representations, warranties, terms, conditions, undertakings collateral agreements, expressed, implied or statutory between the parties other than expressly set forth in this Agreement.

SECTION 12.0 WAIVER

12.1 Unless expressly provided, no failure or delay on the part of any party to exercising any right, power or remedy provided in this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy.

12.2 No waiver by a party of a default of any provision of this Agreement by the other party shall operate against such party as a waiver of such default unless made in writing and signed by such party.

SECTION 13.0 SEVERABILITY

13.1 If any provision of this Agreement shall be determined by an arbitrator or any court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be severed from this Agreement, the remaining provisions shall remain in full force and effect.

SECTION 14.0 GOVERNING LAW

14.1 This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. Each of the parties consents to the jurisdiction of the courts of Ontario to hear any action brought with respect to this agreement.

SECTION 15.0 UN CONVENTION ON CONTRACTS

15.1 All provisions of the United Nations Convention on Contracts for the International Sale of Goods are expressly excluded from this Agreement.

SECTION 16.0 PARTIES DESIRE TO CONTRACT IN ENGLISH

16.1 The parties state their express wish that this Agreement, as well as all pertaining documentation, be drawn up in the English language; les parties experiment leur désir explicite a l'effet que cette entente de même que tous documents envisagés par les présentes ou y ayant trait ou qui seront signés relativement aux présentes soient rédigés en anglais.

SECTION 17.0 ASSIGNMENT

17.1 This Agreement shall be binding upon and enure to the benefit of each of the parties and their respective successors and permitted assigns. This agreement may not be assigned by Customer, except with the prior written consent of TheNMS.com, such consent not to be unreasonably withheld or unduly delayed. TheNMS.com may assign this agreement at any time without the consent of Customer.

SECTION 18.0 FORCE MAJEURE

18.1 Neither party shall be liable for any failure or delay in performing its obligations under this Agreement, other than payment obligations, due to causes outside its reasonable control, provided that a party claiming the benefit of this section shall use its best efforts to eliminate the cause or causes beyond its control including without limitation, failure or malfunction of computer equipment or software, interruption in telecommunication or electrical services, accidents, acts of God, strikes or other labour disputes, and legislation or regulations of any government or governmental agency.

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