THIS TERMS OF USE (THE “TOU”) CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE DAMAGE WAIVER PROVISIONS. PLEASE READ CAREFULLY THIS TOU SINCE SOME OF ITS PROVISIONS MAY HAVE CHANGED SINCE YOUR LAST VISIT. BY USING THE WEBSITES AND OR THE SERVICES PROVIDED BY LCM DESIGN LLC YOU INDICATE YOUR ACCEPTANCE OF THIS TOU. IF YOU DO NOT ACCEPT ONE OR ALL OF THE PROVISION IN THIS TOU, THEN DO NOT USE THE WEBSITES AND OR ANY OF THE SERVICES PROVIDED BY LCM DESIGN LLC.

All references to “Websites,” “our,” and “LCM Design” refers to LCM Design, LLC. All references to “you,” “yours,” and “Subscribers” refers to all persons who visit the Websites and/or utilize the Product in the Website.

1. Definitions

“LCM Design LLC (“LCM Design”)” is a marketing agency that provides a variety of services consisting of (a) advertising and marketing advices and services, (b) various graphic media for the purposes of assisting its clients in their marketing campaign, and (c) other related products and services, all of which are hereinafter referred to as the “Product”

“lcmdesign.net and boat-mail.net” are websites owned and operated by LCM Design for the purpose of (a) marketing to its customer base the Product and (b) providing to its customers the means to develop and manage a marketing or communication campaign with the intent of promoting their own products and or services. lcmdesign.net and boatmail.net are hereinafter referred to as the “Websites”.

“Subscribers” is a paying customer of LCM Design, which has contracted with same on a monthly basis, for the Product offered by boat-mail.net.

“Content” is all text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, computer code, postings, messages, files, images, and/or other materials.

“Your Content” is all Content provided directly by you the Subscribers.

2. Content

The Content including but not limited to the design, structure, selection, coordination, expression, “look and feel” and arrangement of such Content, contained on the Websites is owned, controlled or licensed by or to LCM Design LLC, and is protected by copyright, trademark laws, and other intellectual property rights.

Except as expressly provided in writing, no part of the Websites and no Content, may be copied, reproduced, republished, uploaded or used for any purposes including personal use.

3. Acknowledgements

By accepting this TOU you agree to and make the following representations:

i. You will use the Product and/or the Websites for lawful purposes only, and represent, that Your Content is strictly related to the pursuit of your commercial activity and does not contain words, images, graphics or any other material that might be offensive, insulting, violent, racist, harassing or otherwise objectionable.
ii. You will comply with our Emailing Policy and the CAN-SPAM Act of 2003, and therefore you will not attempt to send unsolicited emails. You will provide, access or otherwise use only email lists from which all listed parties have given you consent to receive correspondence from you (the “Consent Rules”).
iii. You will adopt and maintain our Privacy Policy and therefore represent that you will not post or disclose any personally identifying information in Your Content and or your mailing list.
iv. You represent that you are 18 years of age or older and if you are using the Websites and/or the Product in your capacity as an employee, you have received from your employer proper authorization to do so.
v. You will provide true, accurate and current information about yourself and or the company you represent while registering for the Product.

4. Restrictions and Responsibilities

i. Service Agreement: Subscribers and authorized users of the Websites acknowledge and understand that LCM Design provides a service to its Subscribers and does not authorize under any circumstances the sales, transfer or reproduction of all or any part of its Content, nor can said Content be used by any third parties and/or Subscribers, without LCM Design’s prior written consent. The Product provided to you is the sole property of LCM Design, excluding Your Content if applicable. You should not display, copy, reproduce and/or distribute any part of the Product.

ii. Your Content: You will not provide any content, including images, of authors, artists, photographers or others, without their prior express written authorization or having paid the royalties and or fees associated with the use of said owner’s content. You agree that any list, communication and/or content you provide will not infringe, misappropriate or violate the rights of any third party.

iii. Indemnification: You hereby agree to defend, indemnify and hold harmless LCM Design and its partners, suppliers or providers, owners, and employees against any damages, losses, liabilities, settlement and expenses (including without limitation costs and attorney’s fees) in connection with any claim or from any claim, damages and action resulting from (a) any alleged breach of this TOU, (b) content you distribute using our Product, (c) the use of the Product, and/or (d) Your Content.

5. Termination

i. Your right to terminate: You may terminate this Legal Agreement at any time by calling our staff at (843) 655 4476 or by sending an email at contactus@boat-mail.net. Notwithstanding anything contained herein to the contrary, if your balance is not free and clear of any amount due, including any sub-contracting work that might have been ordered on your behalf, your account will be closed once all such balances due are paid in full.

ii. Our right to terminate: You agree that the Websites, in its sole discretion, has the right (but not the obligation) to delete or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Product (or any part thereof), immediately and without notice, and remove and discard any Content within the Product and/or Websites, for any reason, including, without limitation, if the Websites believes that you have acted inconsistently with the terms and conditions of this TOU. Further, you agree that LCM Design shall not be liable to you or any third-party for any termination of your access to the Product. Further, you agree not to attempt to use the Product after said termination. Any and all sections that by their nature should survive termination of this TOU, shall survive the termination of this TOU. Upon termination of your subscription to the Product you will not be entitled to any refunds for any fees, charges or expenses of any nature, and there will be no pro-rating of any fees paid.

6. Pricing

LCM Design pricing structure intends to be as simple as possible while being adapted to the wide range of services expressed by our clients.

i. Set up fee: LCM Design will gladly accommodate your initial set up and will customize with your logo and your colors, from any of the template series you will choose, at no charge to you, but that is limited to one (1) set up per calendar year. If you decide to use several template series and/or to change your then current template series, within the same calendar year, a $150 fee will be assessed per such occurrence.


ii. Base Monthly Service Fee: Your $250 monthly service fee will let you send or print one semi-custom message per month (i.e: an e-card, an e-news, a postcard, a brochure….). Any additional messages send within the same month will be charged an additional $150 per occurrence. Included in your monthly subscription are design services in relation with adjustment of text layout and visual rendering, picture adjustment and rework to fit technical requirements of the media, and up to three (3) revisions per message. Each additional revision will incur an additional $50 charge.

iii. Web base media: In addition to graphic and design services provided with your base monthly service fee, LCM Design will manage on your behalf the broadcasting of all web base media using the services of a third party with whom LCM Design has contracted. The nature of our contract will allow you to monitor daily the results and the effectiveness of your web base marketing campaign at no additional cost to you if the e-mailing list you will use for your monthly broadcast is less than or equal to 500 email addresses. An additional fee of $10 will be collected for each additional 500 email addresses starting at 501 addresses (i.e: an email database of 2500 addresses will be invoiced an additional amount of $40).

iv. Printed Collateral: Graphic and design is included in your monthly service fee however, printing expenses, shipping expenses, postage and all other expenses and fees originating from the printing company and or any third party that may be participating in the realization of the printed collaterals are not included. LCM Design will provide a detailed quote for each printing related request and require a 50% down-payment upon your acceptance. You are totally free to use the services of your own printing company or provider, if you decide to do so; however if you decide to use the service of the company contracted by LCM Design and benefit from our negotiated pricing, LCM Design will apply a 10% markup fee to each third party quote to cover its management and administrative expenses, but said 10% markup will not include postage related expenses (i.e: You want to print 2500 postcards plus mailing. The printing expenses are $1,500.00 and the mailing expense is 45 cents per postcard. Your total invoice will be $2,775.00 ($1,500 + $150 (10% of $1,500) + $1,125)).

v. Pricing modification: LCM Design reserves the right to change, modify or update its pricing policy at any time without prior notice.

7. Disclaimer and limitation of Liability

i. You acknowledge that the Websites DO NOT REPRESENT A CONTRACTUAL DOCUMENT, LCM Design reserves the right, at its sole discretion, to change, modify, add or remove any or all part of the Websites and/or this TOU without prior notice.

ii. You acknowledge that LCM Design does not represent that the Websites and any of its Content is free of errors, mistakes, omissions and or defects. By using the Websites you assume total responsibilities and understand that your sole remedy against LCM Design in connection with the use of the Websites is to stop using the Websites.

iii. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL LCM DESIGN BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, EVEN IF LCM DESIGN WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT, NOTWISTANDING THE FOREGOING, LCM DESIGN IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, YOU AGREE THAT LCM DESIGN’S LIABILITY SHALL BE LIMITED TO THE GREATER OF THE VALUE OF THE PRODUCT, TRANSACTION OR SERVICE PROVIDED TO YOU WITHIN THE LAST THREE MONTHS OR $750.00.

8. Arbitration

Any controversy or claim arising out of or relating to this TOU or the Product offered via the Websites, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be Myrtle Beach, South Carolina, and the number of Arbitrators shall be one (1). Any such award made as a result of said arbitration shall be final and binding and un-appealable to any court of law.

9. Third-Party Sites, Content & Services

The Websites, Content and Product may contain features and functionalities that may link you or provide you with access to third party content which is completely independent of the Websites, including other websites, servers, networks, directories, systems, databases and information, applications, services, software, programs, or products, and the internet as a whole. Your interactions with any organizations and/or individuals found on or through the Services, including payment and delivery of goods and/or Services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such individuals and/or organizations. You should conduct whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these referenced third parties. You agree that the Websites shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between Subscribers, users and any third party, you understand and agree that the Websites is under no obligation to become involved. In the event that you have a dispute with one or more other Subscribers, users and/or third party, you hereby release the Websites, its officers, employees, agents and successors in interest from any claims, demands and/or damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or our Product.

 

10. Claims of Infringement

If you believe that Your Content and/or intellectual property has been copied in such a way that constitutes a copyright or trademark infringement, or your intellectual property rights have been otherwise violated, please notify the Websites at infringement@lcmdesign.net
or mail said notification to:

LCM DESIGN, LLC
1704 N. Highgove Ct.
Myrtle Beach, SC 29575

Your notice should at least provide the following information:

1) In detail identify the Content, material and/or work on the Websites that you claim is infringing;
2) A statement by you that you have a good faith belief that the disputed use is not authorized by the trademark and/or copyright owner, its agent, or the law;
3) A statement by you declaring under penalty of perjury that (a) the information you are providing in your notice is accurate, and (b) that you are the owner and/or agent, authorized to act, of the trademark and/or copyright interest involved;
4) Your address, telephone number, email address and any other contact information available; and
5) Your signature.

If the material is in-fact infringing then the Website will remove the infringing material(s), subject to the procedures outlined in the Digital Millennium Copyright Act (DMCA).

 

11. Prohibited Conduct

You agree not to post, email, or otherwise make available the following type of Content:

i) that which is unlawful, abusive, harmful, harassing, threatening, libelous, defamatory, invasive of another's privacy, or is harmful to minors in any way;

ii) that which is pornographic or depicts a human being engaged in any type of sexual conduct;

iii) that which harasses, degrades, intimidates or discriminates on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability or any other protected categories;

iv) that which violates any State and/or Federal statute(s), in any notice or ad for the sale or rental of any property, by a discriminatory preference based on race, color, national origin, religion, sex, familial status or handicap (or violates any state or local law prohibiting discrimination on the basis of these or other protected characteristics);

v) that which impersonates any person or entity, including, but not limited to, a Websites’ employee, or falsely states or otherwise misrepresents your affiliation with a person or entity;

vi) that which includes personal or identifying information about another person without that person's explicitly written consent;

vii) that which is false, deceptive, misleading, deceitful, mis-informative, or constitutes "bait and switch" type of transaction;

viii) that which infringes any patent, trademark, trade secret, copyright or other intellectual property rights of any party, or Content that you do not have a right to make available under any law or under contractual or fiduciary relationships;

ix) that which constitutes or contains "affiliate marketing," "link referral code," "junk mail," "spam," "chain letters," "pyramid schemes," or unsolicited commercial advertisement;

x) that which constitutes or contains any form of advertising or solicitation if: posted in areas of the Websites which are not designated for such purposes; or emailed to the Websites’ users who have not indicated in writing that it is ok to contact them about other services, products and/or commercial interests.

xi) that which includes links to third-party commercial services or other websites, except as allowed by the "Product" or this “TOU”;

xii) that which advertises any illegal services or the sale of any items the sale of which is prohibited or restricted by any applicable law, including without limitation items the sale of which is prohibited or regulated by South Carolina law;

xiii) that which contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of the Websites, any computer software or hardware or networks;

xiv) that which disrupts the normal flow of the Product with an excessive amount of Content, or that which otherwise negatively affects other users' ability to use the Product; or

xv) that which employs any misleading tactics, such as email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of any Content which is transmitted through the Product.

In addition, you hereby agree not to perform any of the following:

xvi) contact anyone who has asked not to be contacted and/or "stalk" or otherwise harass anyone;

xvii) collect personal data about other Subscribers and/or users without their knowledge.

xviii) use automated means, including spiders, robots, crawlers, data mining tools, or the like to download data from the Product - unless expressly permitted by the Websites;

xix) post or otherwise repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our Websites;

xx) attempt to gain unauthorized access to the Websites’ computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Product or the Websites; or

xxi) use any form of automated device or computer program that enables the submission of automated postings on the Websites without each posting being manually entered by the author thereof, including without limitation, the use of any such automated posting device to submit postings in bulk, or for automatic submission of postings at regularly scheduled intervals.

12. Spam Policy

You understand and agree that sending unsolicited email advertisements to any of the Websites’ Subscribers and/or users or through the Websites’ computer systems is expressly prohibited by this TOU. Any unauthorized use of the Websites’ computer systems is a violation of this TOU and certain federal and state laws, including without limitation the Computer Fraud and Abuse Act (18 U.S.C. § 1030 et seq.). Additionally, such violations may subject the sender and his or her agents to civil and/or criminal penalties.

 

13. Intellectual Property Rights

The Product and Content are protected to the maximum extent permitted by copyright laws and international treaties. Content displayed on or through the Product and/or Websites are protected by copyright as a collective work and/or compilation, pursuant to copyrights laws, and international conventions. Any reproduction, modification, creation of derivative works from or redistribution of the site or the collective work, and/or copying or reproducing the sites or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of LCM Design. You further agree not to reproduce, duplicate or copy Content from the Product and/or Websites without the express written consent of LCM Design, and agree to abide by any and all copyright notices displayed on the Websites. You may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Product and/or Websites. Without limiting the foregoing, you agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Product or the Websites. Although LCM Design does not claim ownership of content that its users post, by posting Content to any public area of the Websites, you automatically grant, and you represent and warrant that you have the right to grant, to LCM Design an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, and distribute said Content and to prepare derivative works of, or incorporate into other works, said Content, and to grant and authorize sublicenses (through multiple tiers) of the foregoing. Furthermore, by posting Content to any public area of the Product and/or Websites, you automatically grant LCM Design all rights necessary to prohibit any subsequent aggregation, display, copying, duplication, reproduction, or exploitation of the Content on the Product and/or Websites by any party for any purpose.

 

14. Miscellaneous

This TOU represent the only agreement between the parties hereto relating to the subject matter hereof, superseding any prior agreements between you and the Websites, and any representation, affirmation of fact and course of prior dealings, promise or condition in connection herewith or usage of trade not incorporated herein shall not be binding on either party. This TOU and the relationship between you and the Websites shall be governed by the laws of the State of South Carolina without regard to its conflict of law provisions. The failure of the Websites to exercise or enforce any right or provision of this TOU shall not constitute a waiver of such right or provision. If any provision of this TOU is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this TOU shall remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Websites, Product or the TOU must be filed within one (1) year after such claim or cause of action arose or it shall be forever barred.

This TOU was last revised on May 15, 2008.