Updated on 02/28/2019
Please read these Terms carefully. By using FireDrum Email Marketing or signing up for an account, you’re agreeing to these Terms, which will result in a legal agreement between you and FireDrum Email Marketing (“Agreement”). FireDrum Email Marketing (“FireDrum Email Marketing,” “we,” or “us”) is an online marketing platform (the “Service”) offered through the URL www.FireDrumEmailMarketing.com (“Website”) that allows you to, create, send, and manage certain marketing campaigns, including, without limitation, emails and advertisements (each a “Campaign,” and collectively, “Campaigns”). FireDrum Email Marketing is an Arizona limited liability company whose legal name is FireDrum Internet Marketing LLC d/b/a FireDrum Email Marketing. FireDrum Email Marketing has employees, independent contractors, and representatives (“our Team”). As a customer of the Service or a representative of an entity that’s a customer of the Service, you’re an “Account” according to this Agreement (or “you”).
Some features of the Service are offered as add-ons to your FireDrum Email Marketing account (“Add-ons”). Unless expressly stated otherwise, these Terms apply to the use of Add-ons. Some Add-ons are intended for particular use cases and may also have additional terms or restrictions (“Additional Terms”).
In order to use the Service, you must: be at least eighteen (18) years old and able to enter into contracts; complete the registration process; agree to these Terms; provide true, complete, and up-to-date contact and billing information; and not be based in any country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist-supporting” country.
By using the Service, you represent and warrant that you meet all the requirements listed above, and that you won’t use the Service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise.
FireDrum Email Marketing may refuse service, close accounts of any users, and change eligibility requirements at any time.
When you sign up for the Service and agree to these Terms, the Agreement between you and FireDrum Email Marketing is formed, and the term of the Agreement (the “Term”) will begin. The Term will continue for as long as you have a FireDrum Email Marketing account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first. Entering your username and clicking the “Get Started” button and means that you’ve officially “signed” and accepted the Terms. If you sign up for the Service on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf.
3. Closing Your Account
You or FireDrum Email Marketing may terminate the Agreement at any time and for any reason by terminating your FireDrum Email Marketing account or giving notice to the other party. We may suspend the Service at any time, with or without cause. If we terminate your account without cause, and your account is a paid account, we’ll refund a prorated portion of your monthly prepayment. We won’t refund or reimburse you in any other situation, including if your account is suspended or terminated for cause, like a breach or any violation of the Agreement. Once your account is terminated, you acknowledge and agree that we may permanently delete your account and all the data associated with it, including your Campaigns and Contacts. Usernames are unique and can only be used once. If your account has been terminated, the username will no longer be available for use on any future accounts and cannot be reclaimed.
5. Account and Password
You’re responsible for keeping your account name and password confidential. You’re also responsible for any account that you have access to and any activity occurring in such account (other than activity that FireDrum Email Marketing is directly responsible for that isn’t performed in accordance with your instructions), whether or not you authorized that activity. You’ll immediately notify us of any unauthorized access or use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords that are caused by or result from your negligence. We don’t have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your account for billing purposes. In addition, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Service, is and will remain complete and accurate.
6. Account Disputes
We don’t know the inner workings of your organization or the nature of your personal relationships. You won’t request access to or information about an account that’s not yours, and you’ll resolve any account-related disputes directly with the other party. We decide who owns an account based on the content in that account, and if multiple people or entities are identified in the content, then we’ll rely on the contact and profile information listed for that account. In cases where differing contact and profile information is present, we’ll require you to resolve the matter through proper channels outside of FireDrum Email Marketing.
When a dispute is identified, we may suspend any account associated with the dispute, including disabling login and sending capabilities, to protect the security and privacy of the data held within the account.
7. Monthly, Quarterly, Yearly Plans (“Recurring Plan”)
When you sign up for a Recurring Plan, you agree to recurring billing. Billing occurs on the same day each month, based on the date that you started the Monthly Plan. Billing for Monthly Plans may be paused, and you may choose to close your account permanently at any time.
Our charges for Monthly Plans are posted on our Website and may be changed from time to time. If any part of a month is included in the Term, then payment is due for the full month. Payments are due for any month on the same or closest date to the day you made your first monthly payment (the “Pay Date”). If you go over your sending limit and reach another pricing level, then you’ll have to pay at the higher level on or before the next Pay Date. If the Term ends before that payment is due, you’ll still be required to make one payment at the higher level.
8. Pay as You Go Plans
You may ask to be invoiced or will be invoiced for certain accounts. Invoices will be set one month prior to the due date. Payments must be received and funds cleared in order to use FireDrum Email Marketing’s platforms. If funds are not received, a temporary suspension will be applied to the account.
9. Credit Cards
As long as you’re an Account with a paid account or otherwise have an outstanding balance with us, you’ll provide us with valid credit card information and authorize us to deduct the monthly charges against that credit card. You’ll replace the information for any credit card that expires with information for a valid one. If your credit card is automatically replaced with a new card by a payment processor, you acknowledge and agree that we’re authorized to deduct any charges on your account against the new credit card. Anyone using a credit card represents and warrants that they are authorized to use that credit card, and that any and all charges may be billed to that credit card and won’t be rejected. If we’re unable to process your credit card order, we’ll try to contact you by email and suspend your account until your payment can be processed.
We’ll give you a refund for a prepaid month if we stop providing the Service and terminate your account without cause. You won’t be entitled to a refund from us under any other circumstances. We may, at our sole discretion, offer a refund if an Account requests one.
11. Charges for Add-Ons
If you use an Add-on that has a charge, then you’ll be billed that additional amount with each billing cycle for as long as the Add-on is active.
12. Billing Changes
We may change our fees at any time by posting a new pricing structure to our Website and/or sending you a notification by email.
13. Proprietary Rights Owned by Us
You will respect our proprietary rights in the Website and the software used to provide the Service (proprietary rights include, but aren’t limited to, patents, trademarks, service marks, trade secrets, copyrights, and other intellectual property). You may only use our brand assets according to our Brand Guidelines.
14. Proprietary Rights Owned by You
16. Right to Review Campaigns
We may view, copy, and internally distribute Content from your Campaigns and account to create algorithms and programs (“Tools”) that help us spot problem accounts and improve the Service. We use these Tools to find Accounts who violate these Terms or laws and to study data internally to make the Service smarter and create better experiences for Accounts and their contacts.
RULES AND ABUSE
17. General Rules
By agreeing to these Terms, you promise to follow these rules:
You won’t send spam as it is defined on the Spamhaus website. (https://www.spamhaus.org/faq/section/Glossary#181)
You won’t use purchased, rented, or third-party lists of email addresses.
You’ll comply with our Acceptable Use Policy, which forms part of these Terms.
If you use our API, you’ll comply with our API Use Policy, which forms part of these Terms.
FireDrum Email Marketing doesn’t allow accounts with the primary purpose of promoting or inciting harm toward others or the promotion of discriminatory, hateful, or harassing Content. We may suspend or terminate your account if you send a Campaign or otherwise distribute any Content that we determine, in our sole discretion, contains either of the following:
A Threat of Physical Harm. This means any statement, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others.
Hateful Content. This means any statement, image, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to harm, threaten, promote the harassment of, promote the intimidation of, promote the abuse of, or promote discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status.
We also may suspend or terminate your account if we determine, in our sole discretion, that you are either:
An organization that has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor Hateful Content or A Threat of Physical Harm;
A person that has publicly made a comment or statement, or otherwise publicly made known a position, in an organization as discussed above, that could be reasonably perceived as Hateful Content or A Threat of Physical Harm; or
A person or organization that has acted in such a way as could be reasonably perceived to support, condone, encourage, or represent Hateful Content or A Threat of Physical Harm.
If you violate any of these rules, then we may suspend or terminate your account.
18. Reporting Abuse
If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from a FireDrum Email Marketing Account, please report it to our abuse team. (Every email Campaign sent through the Service has an embedded campaign tracking ID in the email header, making it easy to report suspected spam.) If you think anyone has posted material that violates any protected marks or copyrights, then you can notify us at the address provided in our Copyright Policy.
19. Bandwidth Abuse/Throttling
You may only use our bandwidth for your FireDrum Email Marketing Campaigns. We provide image and data hosting only for your FireDrum Email Marketing Campaigns, so you may not host images on our servers for anything else, like a website. We may throttle your sending or connection through our API at our discretion.
20. Compliance with Laws
You represent and warrant that your use of the Service will comply with all applicable laws and regulations. You’re responsible for determining whether the Service is suitable for you to use in light of your obligations under any regulations like HIPAA, GLB, EU data privacy laws (including the General Data Protection Regulation) (collectively, “EU Data Privacy Laws”), United States export control laws and regulations and economic sanctions laws and regulations (“U.S. Export Control Laws and Regulations”), or other applicable laws. If you’re subject to regulations (like HIPAA) and you use the Service, then we won’t be liable if the Service doesn’t meet those requirements. You may not use the Service for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, Children’s Online Privacy Protection Act, or other laws that apply to commerce.
If you’re located in the European Economic Area, the United Kingdom, or Switzerland (collectively, the “EEA”) and/or distribute Campaigns or other Content through the Service to anyone located in the EEA in creating your Campaign distribution list, sending Campaigns via the Service, and/or otherwise collecting information as a result of creating or sending Campaigns, you represent and warrant to FireDrum Email Marketing that:
You will get and maintain all necessary permissions and valid consents required to lawfully transfer data to FireDrum Email Marketing and to enable such data to be lawfully collected, processed, and shared by FireDrum Email Marketing for the purposes of providing the Service or as otherwise directed by you.
You will comply with all laws and regulations applicable to the Campaigns sent through the Service, including those relating to (a) acquiring consents (where required) to lawfully send Campaigns, (b) the Content of Campaigns, and (c) your Campaign deployment practices.
You will provide and obtain all notices and obtain all necessary consents required by applicable data protection laws to enable FireDrum Email Marketing to deploy cookies and similar tracking technologies (like web beacons or pixels) lawfully on and collect data from the devices of contacts and end users of the Service in accordance with and as described in the Cookie Statement.
You will sign and return FireDrum Email Marketing’s Data Processing Addendum, which sets out your and FireDrum Email Marketing’s obligations with respect to data protections and security when processing personal information. Once signed, the Data Processing Addendum will form part of and be incorporated into the Agreement.
In addition, if you are an EEA Account, you acknowledge and agree that we have your prior written authorization to respond, at our discretion, to any data subject access requests we receive from your contacts made under EU Data Privacy Laws, or, alternatively, we may direct any such contacts to you so that you can respond to the request accordingly.
You agree to indemnify and hold FireDrum Email Marketing harmless from any losses, including all legal fees and expenses that result from your breach of this Section (20).
21. U.S. Export Controls
The software that supports the Service (the “Software”) is subject to U.S. Export Control Laws and Regulations. Export laws are set up by the government to keep certain goods and services from reaching other countries, usually because of security concerns or trade agreements. None of the Software may be downloaded or otherwise exported or re-exported in violation of U.S. Export Control Laws and Regulations and any other applicable export laws and regulations (collectively, “Export Control Laws”). Therefore, you agree that you won’t, directly or indirectly through a third party, allow the Software or your Campaigns to be accessed or generated from within, or distributed or sent to, any prohibited or embargoed country as mentioned in any Export Control Laws. In addition, you certify that neither you nor any principals, officers, directors, or any person or entity you know to be directly involved with the use of the Service is designated on any U.S. government list of prohibited or restricted persons.
22. Limitation of Liability
To the maximum extent permitted by law, you assume full responsibility for any loss that results from your use of the Website and the Service, including any downloads from the Website. We and our Team won’t be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or we’ve been advised of the possibility of those damages. In any calendar month, our total liability to you arising under or in connection with the Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—will be no more than what you paid us for the Service the preceding month.
In addition, for the avoidance of doubt, in no instance will we or our Team be liable for any losses or damages you suffer if you use the Service in violation of our Acceptable Use Policy, regardless of whether we terminate or suspend your account due to such violation.
23. No Warranties
To the maximum extent permitted by law, we provide the Website and the Service as-is. This means that, except as expressly stated in these Terms, we don’t provide warranties, conditions, or undertakings of any kind in relation to the Website and/or Service, either express or implied. This includes, but isn’t limited to, warranties of merchantability and fitness for a particular purpose, which are to the fullest extent permitted by law, excluded from the Agreement. Since Accounts use the Service for a variety of reasons, we can’t guarantee that it’ll meet your specific needs.
24. MUTUAL INDEMNIFICATION
A. Indemnification by FIREDRUM. A. Indemnification by FIREDRUM. FIREDRUM will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by FIREDRUM in writing of, a Claim Against Customer, provided Customer (a) promptly gives FIREDRUM written notice of the Claim Against Customer, (b) gives FIREDRUM sole control of the defense and settlement of the Claim Against Customer (except that FIREDRUM may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives FIREDRUM all reasonable assistance, at FIREDRUM’s expense. If FIREDRUM receives information about an infringement or misappropriation claim related to a Service, FIREDRUM may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching FIREDRUM’s warranties, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by FIREDRUM, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (4) a Claim against Customer arises from Content, a Non-FIREDRUM Application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.
B. Indemnification by Customer. Customer will defend FIREDRUM and its Affiliates against any claim, demand, suit or proceeding made or brought against FIREDRUM by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non-FIREDRUM Application provided by Customer, or (c) the combination of a Non-FIREDRUM Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against FIREDRUM”), and will indemnify FIREDRUM from any damages, attorney fees and costs finally awarded against FIREDRUM as a result of, or for any amounts paid by FIREDRUM under a settlement approved by Customer in writing of, a Claim Against FIREDRUM, provided FIREDRUM (a) promptly gives Customer written notice of the Claim Against FIREDRUM, (b) gives Customer sole control of the defense and settlement of the Claim Against FIREDRUM (except that Customer may not settle any Claim Against FIREDRUM unless it unconditionally releases FIREDRUM of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against FIREDRUM arises from FIREDRUM’s breach of this Agreement, the Documentation or applicable Order Forms. 9.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.
25. Legal Fees and Expenses
If we file an action against you claiming you breached these Terms and we prevail, we’re entitled to recover all reasonable legal fees, expenses, and any damages or other relief we may be awarded.
26. Equitable Relief
If you violate these Terms, then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.
27. Subpoena Fees
If we have to provide information in response to a subpoena, court order, or other legal, governmental, or regulatory inquiry related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.
We and our Team aren’t responsible for the behavior of any third parties, linked websites, or other Accounts.
29. Notice to U.S. Government End Users
The Software and Website, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users: only as Commercial Items, with the same rights as all other end users, and according to the Terms.
Published and unpublished rights are reserved under the copyright laws of the United States. The manufacturer is FireDrum Internet Marketing LLC, 9903 E Bell Rd., Scottsdale AZ, 85260.
You may not assign any of your rights under this agreement to anyone else. We may assign our rights to any other individual or entity at our discretion.
31. Choice of Law
The State of Arizona’s laws, except for conflict of laws rules, will apply to any dispute related to the Agreement or the Service. Any dispute related to the Agreement or the Service itself will be decided by the state and federal courts in Maricopa County, Arizona, and each party will be subject to the jurisdiction of those courts.
32. Force Majeure
We won’t be held liable for any delays or failure in performance of any part of the Service, from any cause beyond our control. This includes, but is not limited to, acts of god, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers, or third-party internet service providers.
Even if this Agreement is terminated, the following sections will continue to apply: Proprietary Rights Owned by Us, Proprietary Rights Owned by You, Compliance with Laws, Limitation of Liability, No Warranties, Indemnity, Choice of Law, Severability, and Entire Agreement.
If it turns out that a section of these Terms isn’t enforceable, then that section will be removed or edited as little as required, and the rest of the Agreement will still be valid.
35. Amendments and Waiver
Amendments or changes to the Agreement won’t be effective until we post revised Terms on the Website. If we don’t immediately take action on a violation of these Terms, we’re not giving up any rights under the Terms, and we may still take action at some point.
36. Further Actions
You’ll provide all documents and take any actions necessary to meet your obligations under these Terms.
37. Notification of Security Breach
In the event of a security breach that may affect you or anyone on your Campaign distribution lists (each a “List”), we’ll notify you of the breach once we have determined, in our discretion, that it occurred and will provide a description of what happened. If we determine, and notify you, that you need to forward all or part of that information to anyone on your Lists, you’ll promptly do so.
Any notice to you will be effective when we send it to the last email or physical address you gave us or when posted on our Website. Any notice to us will be effective when delivered to us along with a copy to our legal counsel at 9903 E Bell Rd., Scottsdale AZ, 85260
39. Entire Agreement
The Agreement and any Additional Terms you’ve agreed to by enabling any Add-ons make up the entire agreement between us in relation to its subject matter and supersede all prior agreements, representations, and understandings. Any Additional Terms will be considered incorporated into the Agreement when you activate the corresponding Add-on.
Updated May 25, 2018.
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