PLEASE READ THE USER AGREEMENT (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 AND DO NOT USE THE SERVICES (AS THAT TERM IS DEFINED BELOW).
By using the 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 in the Services. The changes also will appear in this document, which you can access at any time at http://local.fishbowl.com/Public/TermsAndConditions.aspx. If you do not agree to be bound by the changes, you should not use the Services again. If you use the Services after notification of a change in the Agreement, You have accepted and will be bound by the revised Agreement.
Fishbowl will provide you with online marketing services (the “Services“) and you agree to use the Services in accordance with the following terms and conditions:
- “Services” shall mean all products and services provided hereunder by Fishbowl.
- “Software – Email,” “Software – Social,” and “Software – Reputation” shall mean Services to facilitate email marketing, social media marketing, and online reputation management, respectively, as such services may be upgraded and/or changed from time to time.
- “Guest Enrollment” shall mean a Service that facilitates the enrollment by individuals into your email program, and includes collection and input of new member data into the database maintained by Fishbowl for you, standard sign-up slips, and return envelopes.
- “SM3 Service” shall mean a service where Fishbowl and You will define and execute a monthly online marketing plan that may include any of the following.
- Email Marketing: set up and / or administer your Fishbowl account, and write and send emails on your behalf.
- Social media marketing: Set up and/or administer your Facebook page, and post and respond to comments on your behalf; set up and/or administer your Twitter account, and publish cross-post via Twitter appropriate Facebook posts described above (separate creative work will not be done for Twitter).
- Online listings management: Claim your ownership of and update your listings on Google, Yelp, TripAdvisor, and Foursquare.
- Online reputation management: Monitor online reviews on Yelp, Google, TripAdvisor, and OpenTable, and advise you and/or respond to reviews on your behalf when appropriate.
- Provide monthly status report tracking activity and results.
Fishbowl will perform all work remotely. Requests for on-site visits are subject to Fishbowl approval and availability, and will be billed at a separate rate to cover time and travel expenses.
You will provide a single point of contact for Fishbowl to work with, and understand that your use of the Services will be subject to reasonable limits, including 1 email blast per week, and 4 Facebook posts per week. If your usage exceeds such reasonable limits, you and Fishbowl will cooperate to resolve the situation.
- The “Database” consists of data regarding Customers (defined below) which has been obtained by Fishbowl as a result of your use of the Services. Customer data may include, but is not limited to, the Customer’s name, email address, IP address and birth date information.
- Database Management.IN ORDER TO ENSURE THAT UPDATES AND UNSUBSCRIBES ARE EFFECTED ACCORDING TO APPLICABLE LAWS, REGULATIONS, AND INDUSTRY STANDARDS, YOU AGREE THAT FISHBOWL WILL EXCLUSIVELY MANAGE AND MAKE USE OF THE DATABASE AND THE DATA CONTAINED THEREIN DURING THE TERM OF THIS AGREEMENT. For example, you may not to send, either directly or through any third party, any emails to the individuals whose information is contained in the Database, other than through the Services, and you may not disseminate the Database or any information contained therein for use by any third party during the term of this Agreement.
- Restrictions. Fishbowl will not use or disclose the Database for a purpose competitive with you. Fishbowl will take reasonable steps to protect the Database from unauthorized disclosure. Fishbowl will not sell or rent the Database to any third parties.
- Release. Upon termination of this Agreement, receipt by Fishbowl of all amounts owed by you, and expiration of any legally-required opt-out periods, Fishbowl will deliver the Database to you in a commonly accessible data format within 31 days. If full payment is not received by Fishbowl within 60 days following the date of termination, Fishbowl may, in its sole discretion, remove from its equipment and archive or destroy the Database without liability to you.
- Aggregated Data.Notwithstanding the foregoing, Fishbowl may use, store and distribute the results from use of the Services or data from the Database in an aggregated form for comparative and marketing purposes. Fishbowl will not disclose any aggregated data that could identify you or a Customer. These restrictions will not apply to information Fishbowl obtains about a customer of yours in connection with Fishbowl’s delivery of services to another client of Fishbowl’s or through means unrelated to the Services provided to you hereunder.
- List Collection Guidelines.Fishbowl will transmit messages only to individuals who have opted-in to receive messages from you through the Services (“Customers“). “Opt-in” means making an affirmative action or statement consenting to receive messages from you though the Services. Examples of ways Customers may opt-in include: (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. You may only send messages through Fishbowl to Customers that have opted-in within the prior 6 months or to whom you have sent a message in the prior 6 months. You are not allowed to use any purchased, rented or third party lists. Fishbowl may refuse to send messages to individuals that have not, or that Fishbowl reasonably believes have not, opted-in to receive messages from you. Fishbowl reserves the right to request and inspect any or all materials, methods or evidence used in the Opt-in process to ensure that you are complying with relevant regulations and standards.
- Compliance with Federal, State and International Laws.You agree that your use of the Services will comply with all applicable laws and regulations. You agree not to use the Services to send messages which would violate any applicable law or regulation, including, but not limited to United States laws such as the CAN-SPAM Act of 2003 and the Children’s Online Privacy Protection Act [COPPA], state laws such as Utah’s and Michigan’s Child Protection Registry laws), and all applicable international laws, including, but not limited to, European Data Privacy Laws, Canada’s Anti-Spam Legislation (CASL), Japan’s Law on Regulation of Transmission of Specified Electronic Mail and Mexico’s Federal Consumer Protection Law. 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 applicable law. You shall be solely responsible for any fees related to compliance with any laws and regulations, including for optional Services such as monthly list cleansing. Without limiting the other statements in this Section, if you are located in the European Economic Area (EEA) and/or use the Services to send email to anyone in the EEA, you specifically confirm that in creating distribution lists, sending emails via the Services and collecting information as a result of those emails that (a) you will describe to your Customers how you plan to use their data, (b) you have complied with all applicable regulations related to data protection, electronic communications and privacy laws and (c) that you have the necessary permissions to receive and process data of, and send communications to, your Customers, and to cause Fishbowl to do so on your behalf via the Services.
- Social Media Authorization.For any social media service (including but not limited to Facebook and Twitter) to which you provide Fishbowl with credentials or administrative rights, you certify that Fishbowl is your official representative authorized to take all actions reasonably necessary to publish updates to or install applications for such service. By providing these credentials or admin rights you thereby release Fishbowl of any liability arising out of or related to these actions. You reserve the right to change passwords and revoke these admin rights at any time, thereby suspending Fishbowl’s authorization.
- 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 appropriate in its sole discretion.
- Term: This Agreement shall commence on the Contract Effective Date (“Effective Date”) specified at time of your initial order of the Services, and continue for a period of 12 months (“Initial Term”), and renew automatically for additional 12 month periods (each a “Renewal Term”) unless otherwise terminated as provided in this Agreement.
- The fees charged by Fishbowl are exclusive of all taxes, levies or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies or duties. You agree that emailed invoices are sufficient for accounting purposes and that payment shall be made against emailed invoices. Fees charged for Software – Email may increase depending on growth in your list size.
- Billing: Fees will commence on the Effective Date. Billing will commence at the beginning of the month following the Effective Date. You will be billed in advance for Services, monthly or annually, and all billed charges are non-refundable. Any incremental fees, for example in respect of increased email list size, will be billed upon meeting the relevant criteria. Recurring fees are based upon Services purchased and not actual usage. By providing relevant billing information, you authorize Fishbowl to charge your credit card or to directly debit your bank account for fees as set forth in this Agreement.
- Late Fees / Suspension of Service: Any amounts not paid when due will accrue interest at the rate of one and a half percent (1 ½%) per month from the due date. If your payment method is declined or any amounts due hereunder are more than thirty (30) days past due, Fishbowl may suspend or cancel the Services.
- Unless otherwise explicitly stated in a mutually-executed agreement or order form, either you or Fishbowl may cancel after the first ninety (90) days of a subscription for Services, for any reason, by providing at least thirty (30) days written notice to the other party. Upon such notice, you will owe Fishbowl for past amounts due plus the notice period, and Fishbowl will continue to provide service during this period.
- Intellectual Property.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, or included in, the Services (collectively, the “Content“), and all copyrights, trademarks, 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 Rights“) are owned by Fishbowl or its licensors, and are protected by copyrights, trademarks, service marks, international treaties and/or other applicable laws.
- You may only use the Content, Services, or Intellectual Property as expressly permitted in this Agreement and for no other purposes.
- 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 any Intellectual Property Rights.
- 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 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.
- Grant of License.During the Term, Fishbowl grants you a personal, nonexclusive, nontransferable, non-assignable, revocable, limited license to access and use the Services as specified in this Agreement, the relevant ordering document(s), and the applicable user documentation.
- Limitations on Use.You may not use the Services or the Content for any illegal purpose.
- No hard copy or electronic duplication, transmission, redistribution, or publication of any Content is allowed other than in conjunction with your authorized use of the Services, and you may not use or include any Content in any other print or electronic publication or service.
- You may not decompile, reverse engineer, disassemble, rent, lease, loan, sell, sublicense, or create derivative works from the Services 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.
- You may not use any robot, spider, other automatic device, or manual process to monitor or copy the Services or the Content.
- 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 Services or the Content, except to the extent expressly permitted in this Agreement or the applicable user documentation.
- You may not upload to the Services 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 Services or the Content ineffective, unavailable, or unusable, or which uses, or attempts to use, the Services for any purpose not authorized by Fishbowl.
- You may not use or otherwise export or re-export the Services or any portion thereof, or the Content or any software available on or through the Services, in violation of the export control laws and regulations of the United States of America or any other country with jurisdiction over you.
- You shall not alter or remove any trademark, copyright or other notice from any copies of the Content.
- YourYou are solely responsible for your information and your use of the Services and warrant that you have all legal rights and licenses necessary for your use of Services, in particular with respect to any materials you upload to the Services.
- In connection with the Services and Content, You shall not use the Services to send emails which:
- infringe on the intellectual property rights or privacy/publicity rights of any third party;
- violate any law or regulation;
- are defamatory, harmful to minors, or obscene;
- 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
- are false or misleading.
- 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.
- You shall notify Fishbowl of all complaints regarding emails or other communications sent by you via the Services within 48 hours of receipt of such complaints.
- Fishbowl does not control the content of the websites of third parties and is not responsible for any errors or inaccuracies contained therein.
- Third Party Content.Third party content may appear on, or may be accessible via links from, the Services. 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 Services. 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.
- Restrictions on Linking and Framing Activities.You may not, nor may you authorize, assist or enable a third party to, link to an internal or subsidiary page of the Services 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 Services within another website (“framing” or “frame”).
- Errors and Corrections.Fishbowl does not represent or warrant that the Services 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 of which it becomes aware. Notice of any problems, with as much detail as possible, should be sent to email@example.com. Fishbowl does not warrant or represent that the Content will be correct, accurate, timely, or otherwise reliable. Fishbowl may make improvements or changes to the Services’ features, functionality or Content at any time.
- THE SERVICES ARE 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.
- You acknowledge that Fishbowl provides the Services through the Internet, which is subject to outages and communication and data flow failures, interruptions and delays. You and your Customers are responsible for acquiring and maintaining access to the Internet in order to access and use the Services. You acknowledge that problems with the Internet, including equipment, software or network failures, impairments or congestion, or the configuration of 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 the Services.
- You understand and agree that Fishbowl is not responsible for undelivered emails or for emails that do not appear in a Customer’s email client as previewed or expected. You understand and agree that once emails are approved for delivery, you may not rescind or otherwise interrupt delivery of the emails.
- 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.
- 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.
- 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 SERVICES. 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 SERVICES, CONTENT OR THIRD PARTY MATERIALS THEREIN INCLUDING, WITHOUT LIMITATION (A) ANY ERRORS IN, OR OMISSIONS FROM, THE THE CONTENT INCLUDING, BUT NOT LIMITED TO, TECHNICAL INACCURACIES, TRANSLATIONS, AND TYPOGRAPHICAL ERRORS; (B) ANY THIRD PARTY WEBSITES OR CONTENT THEREIN DIRECTLY OR INDIRECTLY ACCESSED THROUGH LINKS IN THE SERVICES INCLUDING, BUT NOT LIMITED TO, ANY ERRORS IN OR OMISSIONS THEREIN; (C) THE UNAVAILABILITY OF THE SERVICES OR ANY PORTION THEREOF; (D) YOUR USE OF, OR INABILITY TO USE, THE SERVICES; (E) YOUR USE OF ANY EQUIPMENT OR SOFTWARE IN CONNECTION WITH THE SERVICES; 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 SERVICES 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 or £50).
- 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.
- Fishbowl may use third parties to provide any part of the Services and/or to enable Fishbowl to provide the Services.
- 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 Protocol (IP) address to the Services.
- Governing Law and Jurisdiction.This Agreement will be governed by the laws of the Commonwealth of Virginia, without regard to any conflicts of laws provisions. 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.
- Access and Use Outside the United States.Fishbowl does not represent that the Content or the Services are appropriate for use in countries outside the United States. If you choose to access or use the Services from outside the U.S. or use the Services to direct communications to Customers outside the U.S., you are responsible for compliance with all applicable laws.
- Modifications to this Agreement.Fishbowl reserves the right to change this Agreement at any time. Updated versions of the Agreement will appear on the Services and are effective immediately. You are responsible for regularly reviewing the Agreement. Continued use of the Services after any such changes constitutes your consent to such changes.
- The section titles in the Agreement are used solely for the convenience of you and Fishbowl, and they have no legal or contractual significance.
- 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 SERVICES AND ACCESS THE CONTENT SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT BY USING THE SERVICES. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE THE SERVICES.
Fishbowl, Inc. 44 Canal Center Plaza Suite 500 Alexandria VA, 22314
Fishbowl Marketing LTD 24 Calonne Road London, SW19 5HJ
Last Updated: July 20, 2015