OTC General Agreement

One Time Campaign (OTC) is a service allowing to easily send vaste number of customize emails to your clients database.

Unless specified in your agreement with AviMark , this service is not included in your monthly plan. An additional charge of $20 per campaign applies.

One Time Campaign (OTC) rules of usage are:

For each campaign, an estimation of the number of recipients is computed based on your distribution selection
Spam emails are strictly forbidden. AviMark reserves the right to supervise any campaign and may decide to cancel it if its content could be reasonably associate with "spam characteristics". In such event, you will be notified immediately.
A delay to up to four hours may apply once "Laucnhed" before the campaign will be processed within

AviMark ^® OTC & OTHER PRODUCTS TERMS AND CONDITIONS OF USE

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS OF USE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE AND TO THE PRODUCTS. YOU AGREE TO CHECK FOR UPDATES TO THESE TERMS AND CONDITIONS OF USE. BY USING THIS WEB SITE OR THE PRODUCTS, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF USE. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS OF USE, THEN DO NOT USE THIS WEB SITE OR THE PRODUCTS.

AviMark , Inc. ("AviMark ") provides medical and dental practices with a variety of products and related tools and resources including:

AviMark Email Marketing (the "One Time Campaign");
AviMark Online Survey (the "Survey Product"); and
AviMark Appointment Reminders.
AviMark client Online Scheduling.
AviMark Mobile Access.
AviMark client Online Registration.

In addition to the products described above, AviMark provides a variety of related offerings and services, including email campaign. The One Time Campaign service is referred to in these Terms and Conditions of Use as the "Products."

AviMark 's Products may not be used for the sending of unsolicited email (sometimes called "spam") or for the hosting of illegal or prohibited content. See our Anti-Spam Policy, which is incorporated into these Terms and Conditions of Use by reference.

The following are the terms and conditions of use for access to this web site and use of the Products. By clicking the ‘I accept' button on the sign-up page, by logging in to your AviMark account, by accessing this web site or by accessing the AviMark services via any API interface, you accept these Terms and Conditions of Use.

1. Copyright and Trademark Information

This web site, and the information which it contains, is the property of AviMark and its affiliates and licensors, and is protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, "AviMark " and the AviMark logo are registered trademarks of AviMark under the applicable laws of the United States and/or other countries. Other AviMark product or service names or logos appearing in this web site are either trademarks or registered trademarks of AviMark and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of AviMark trademark or other intellectual property rights concerning that name or logo.

2. Products – Terms and Conditions

The Products are provided subject to these Terms and Conditions of Use, as they may be amended by AviMark , and any guidelines, rules or operating policies that AviMark may establish and post from time to time (collectively, the "Agreement"), including without limitation AviMark 's customer Privacy Policy, as linked from all email generated from AviMark or otherwise furnished to you (unless otherwise stated, all references to the Agreement shall include the Privacy Policy). By posting updated versions of the Agreement on the AviMark.net web site, or otherwise providing notice to you, AviMark may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Products in its sole discretion. Except as otherwise provided in the Agreement, all such changes shall become effective upon the posting of the revised Agreement on the Product or at AviMark 's web site. The Products are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Products. If you are using the Products in your capacity as an employee, you must have the ability to bind your employer by your use of the Products. You must complete the registration form on the AviMark sign up page in order to use the Products. You will need to register separately for the One Time Campaign (OTC) and any additional offerings or services. You shall provide true, accurate, current, and complete information about yourself as requested in the registration form. You may from time to time provide AviMark service personnel with remote access to your computers and other systems for the purpose of troubleshooting issues that arise in your use of the Products. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by AviMark or its personnel.

If you are accessing or using the Products through a third party service or web site (a "Third Party Service"), you agree and acknowledge that AviMark is not responsible or liable for any actions of such third party or for any aspect or result of such Third Party Service. You use such Third Party Service at your own risk. You further agree and acknowledge that AviMark may terminate such Third Party Service's ability to interact with the Products at any time, with or without notice, and in AviMark 's sole discretion, with no liability to you or to the third party.

3. Representations and Acknowledgements

Subject in each case to the terms listed in the remainder of this Agreement, you hereby represent, acknowledge and agree that:

The One Time Campaign will be subject to monthly subscription fees once you have completed your free trial period or you have exceeded the free subscriber or client limit. The One Time Campaign may also be subject to per message and certain overage charges.
The Products may not be used for the sending of unsolicited email (sometimes called "spam").
The Products may only be used for lawful purposes.
The Products may not be used for hosting content, including images and documents, that infringes on the intellectual property rights of others, including copyright, trademark and patent infringement, or that includes any obscene or libelous material or other material that violates any applicable law or regulation.
You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Products.
You acknowledge and agree that not all email messages sent through use of the Products will be received by their intended recipients.
Every email message sent by you in connection with the Products must contain the AviMark "unsubscribe" link that allows the recipient to remove themselves from your mailing list.
You will comply with the restrictions on content of email messages and activities using the Products as set forth or referenced in this Agreement.
You acknowledge and agree that you are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act) of any email message sent by you using the Products.
You agree that the "from" line of any email message sent by you using the Products will accurately and in a non-deceptive manner identify your organization, your product or your service.
You agree that the "subject" line of any email message sent by you using the Products will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
You agree to include in any email message sent by you using the Products your valid physical address, which may be a valid post office box meeting the registration requirements established by the United States Postal Service.
You agree that in any email message sent by you using the Products you will not include any incentives (e.g., coupons, discounts, awards) that encourage a recipient to forward the email message to another recipient.
In your use of the Products, you agree to represent you or your organization accurately and will not impersonate any other person, whether actual or fictitious.
You agree to not interfere with or disrupt this web site or any related AviMark web sites or servers or networks connected to this web site or any related AviMark web sites.
If you are accessing or using the Products through a Third Party Service, you will abide by this Agreement regardless of anything to the contrary in your agreement with such third party. You shall not use such Third Party Service to avoid the restrictions set forth in this Agreement.

4. Email, Permission Practices, Image Hosting and Prohibited Content

4.1 Subscriber Opt Out. Every email message sent in connection with the Products must contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to AviMark . You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within ten (10) days of submission, and update the email addresses to which messages are sent through your AviMark account. Under the CAN-SPAM Act of 2003, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement.

4.2 Footers. For every email message sent in connection with the Products, you acknowledge and agree that AviMark may add an identifying footer stating "Email Marketing by AviMark ," "Powered by AviMark " or a similar message.

4.3 Documents and Images. Documents and images hosted by AviMark on AviMark controlled servers may only be used in connection with the Products and for no other purpose whatsoever. To the extent you use images provided by AviMark , AviMark hereby grants to you a limited, non-exclusive, non-transferable right to use the images in an unaltered state solely in connection with your use of the Products.

4.4 Prohibited Content. AviMark prohibits the use of the Products or web site by any person or entity that:

Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; dating services; adult "swinger" promotions; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
Posts or discloses any personally identifying information or private information about children without their consent (or their parents' consent in the case of a minor).
Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.
Engages in any libelous, defamatory, scandalous, threatening, or harassing activity.
Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
Markets to third party voter registration lists.
Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.

4.6 Right to Disable Access or Remove Content. AviMark , at its own discretion, may immediately disable your access to the Products or remove all or a portion of your content, without refund, if AviMark believes in its sole discretion that you have violated any of the policies listed above or this Agreement.

5. Restrictions and Responsibilities

5.1 No Rights in Software. This is an Agreement for services and access to this web site, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Products or any software, documentation, or data related to the Products ("Software"); remove any proprietary notices or labels from the Products or any Software, modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software.

Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Products or the Software, or any content, including but not limited to newsletters, distributed to you by AviMark in connection with the Products. Violation of these restrictions may result in the termination of this Agreement.

5.2 Permitted Use of the Products. The Products shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that AviMark perform such work at its standard professional services rates. AviMark can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; or (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability or (iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.

5.3 Compliance with Laws; Monitoring. You shall use the Products only in compliance with this Agreement, the federal CAN-SPAM Act of 2003 and regulations thereunder and all other applicable U.S., state, local and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws). Although AviMark has no obligation to monitor the content provided by you or your use of the Products, AviMark may do so and may block any email messages, remove any such content, including surveys or event registrations, or prohibit any use of the Products that AviMark believes may be (or is alleged to be) in violation of the foregoing.

5.4 Your Information. In using the varied features of the Products, you may provide information about yourself or your employer (such as name, client information, or other registration information) to AviMark . AviMark may use this information and any technical information about your use of the Products to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Products as a result of solicitation by a marketing partner of AviMark , we may share your information with the marketing partner and the marketing partner may share related information with AviMark . Except as described above. AviMark will not provide your information, including your contact and account information, to third parties who you have not authorized to receive such information, except (i) as required by law or court order, including without limitation judicial process and law enforcement, or in the good-faith belief that such action is necessary to comply with law or a court order or (ii) if your AviMark account was terminated due to unsolicited commercial email being sent from your AviMark account. AviMark will never sell or rent your client lists to anyone without your permission, and will never utilize your subscriber or client list for internal marketing or promotional purposes or for any purpose other than providing the service. AviMark acknowledges your ownership right in your client lists. In the event AviMark amends or revises the policy described in the immediately preceding sentence, it will provide advance notice of such amendment or revision.

5.5 Intellectual Property Matters. You agree that you will not upload or transmit any client lists, communications or content of any type to this web site or in connection with the Products that infringe, misappropriate or violate any rights of any party. By submitting ideas, concepts, inventions, or content to this web site or using them in connection with the Products, you agree that such submission is non-confidential for all purposes. If you make any such submission, you agree that you will not send or transmit to AviMark or to any third party using the Products, any communication or content that infringes or violates any rights of any party. If you submit any business information, ideas, concepts or inventions or content to AviMark by email, you agree such submission is non-confidential for all purposes. If you make any submission to this web site or if you submit any business information, idea, concept, invention or content to AviMark by email or use any business information, idea, concept, invention or content in connection with the Products, you automatically grant, or warrant that the owner of such content or intellectual property has expressly granted, AviMark a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license, with the right to sublicense, to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner. The foregoing license grant shall not apply to your client lists and the content you deliver to or through the Products ("Customer Information") and you hereby separately grant to AviMark a revocable, non-exclusive, royalty-free, worldwide license, with the right to sublicense, to use, reproduce, publish, distribute, perform, and display the Customer Information only as required by AviMark to offer and operate the Products and related services, including available offerings from third parties.

5.6 Use of Links - Survey Product. In connection with the Survey Product, you hereby agree that you shall only distribute links to the survey via the Survey Product, the One Time Campaign or as a link on your web site.

5.7 Use of Links – Event Marketing Product. In connection with the Event Marketing Product, you hereby agree that you shall only distribute links to your events via the Event Marketing Product, the Email Marketing Product or as a link on your web site.

6. Termination

You may terminate this Agreement at any time by calling AviMark Customer Support. There are no refunds for any fees paid. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT AND AviMark IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT AND ANY CREDIT CARD CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.

AviMark may terminate this Agreement or the Products, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. AviMark shall have no liability to you or any third party because of such termination or action.

AviMark may delete any of your archived data within 30 days after the date of termination. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. AviMark will provide upon request the list of unsubscribe requests from your account. Under the CAN-SPAM Act of 2003, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement.

All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.

If your account is classified (at AviMark 's sole discretion) as inactive for over 120 days, AviMark has the right to permanently delete your subscriber data. AviMark will use good faith efforts to contact you via email prior to taking any permanent removal actions.

7. Warranty Disclaimer; Remedies

USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. AviMark DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED "AS IS" AND AviMark DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

Your sole and exclusive remedy for any failure or nonperformance of the Products shall be for AviMark to use commercially reasonable efforts to adjust or repair the Products.

8. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL AviMark OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "AviMark ") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF AviMark SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, AviMark IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF AviMark TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY AviMark TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

Additional Information

If you have any questions about the rights and restrictions above, please contact AviMark by email at info@AviMark.net .

AviMark ^® ANTI-SPAM POLICY

AviMark has a no tolerance spam policy. AviMark 's customer support actively monitors large import lists and emails going to a large number of clients. Any customer found to be using AviMark for spam will be immediately cut-off from use of the product. If you know of or suspect any violators, please notify us immediately at abuse@AviMark.net .

Every email contains a mandatory unsubscribe link - those individuals who try to remove this link will be warned that they are doing so. If the link is removed or de-activated in any way, AviMark will terminate the customer's account.

What is Spam?

Spam is unsolicited email also known as UCE (Unsolicited Commercial Email). By sending email to only to those who have requested to receive it, you are following accepted permission-based email guidelines.

What constitutes a Preexisting business relationship?

The recipient of your email has made a purchase, requested information, responded to a questionnaire or a survey, or had offline contact with you.

What constitutes consent?

The recipient of your email has been clearly and fully notified of the collection and use of his email address and has consented prior to such collection and use. This is often called informed consent.

Isn't there a law against sending Spam?

The federal anti-spam law went into effect on January 1st, 2004 and preempts all state laws. While this new law will not stop spam, it does make most spam illegal and ultimately less attractive to spammers. The law is specific about requirements to send commercial email and empowers the federal government to enforce the law. The penalties can include a fine and/or imprisonment for up to 5 years.

How AviMark protects you from sending spam

AviMark is a permission-based email-marketing tool that follows the strictest permission-based philosophies:

Communication - Your AviMark registration page already states why you are collecting the site visitor's email address, how you plan to use their address, and that you are following the embedded privacy policy. Additionally, by accepting our license agreement you have agreed to use only permission-based lists and never to sell or rent your lists.
Unsubscribe - Every email generated from AviMark contains an unsubscribe link which allows your clients to opt-out of future emails and automatically updates your client lists to avoid the chance of sending unwanted emails to visitors who have unsubscribed.
Identification - Your email header information is correct because it is pre-set for you by AviMark . Your email's "From" address is verified and already accurately identifies you as the sender.
client Information - all of your emails are pre-filled with your contact information including your physical address.

How to protect yourself from Spam: Take the Spam Test

Are you importing a purchased list of ANY kind in your practice management software?
Does your client database contains non-specific addresses such as:
- sales@domain.com, business@domain.com, webmaster@domain.com, info@domain.com, or other general addresses.
Have you falsified your originating address or transmission path information?
Does your email's subject line contain false or misleading information?
Does your email fail to provide a working link to unsubscribe?

If you have answered YES to ANY of the above questions you will likely be labeled a SPAMMER. For more information visit The Coalition Against Unsolicited Email (www.cauce.org) or contact Contact Customer Support (support@AviMark.net )