Website Terms of Use

Effective date: February 3, 2024

Welcome to https://www.Povital.com/ (the “Site”), owned and operated by Povital Corp. (“Povital,” “we,” or “us”). By using this Site, you agree to these terms and conditions of use (the “Terms”); if you do not agree, you may not use the Site. Povital may modify the Site and/or these Terms from time to time without notice to you, except that if Povital makes material changes to these Terms, we will post the revised Terms and the revised effective on this Site and/or provide notice by some other means. By using the Site following any modifications to the Terms, you agree to be bound by the modified Terms. The Terms do not govern use of any of Povital’s services, which are subject to a separate services agreement to be signed between any user of the services and Povital. These Terms include the provisions in this document as well as those in the Privacy Policy, and any other relevant policies. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with these Additional Terms.

Please read these Terms carefully.They cover important information about Services provided to you.These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

• 1. Use of the Site. You must be at least 16 years old to use our Site. We do not knowingly collect or solicit personally identifiable information from individuals under 16. If you are under 16, please do not attempt to use the Site or send any personal information about yourself to us. If we learn we have collected personal information from an individual under 16, we will de lete that information as quickly as possible. You will comply with all applicable laws, rules and regulations in connection with your use of the Site. You will not violate or attempt to violate the security of the Site or Povital’s systems or network security, including, without limitation by (i) accessing data not intended for users of the Site or gaining unauthorized access to an account, server or any other computer system; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures; (iii) attempting to interfere with the function of the Site, host or network. You may not “crawl,” “scrape,” or “spider” any portion of the Site (through use of manual or automated means).
• 2. Information Not Confidential. If you choose to contact any Povital personnel using the contact information you find on the Site, you understand any information and/or materials you provide to such personnel will not be treated as confidential or proprietary. Povital undertakes no obligation to review information submitted by you, or to return such information to you.
• 3. Povital Proprietary Rights. The Site, including all of its contents (including, text, images, audio, and the HTML used to generate the pages) (“Content”), are the property of Povital or that of our suppliers or licensors and are protected trademark, copyright, and/or other intellectual property laws. You may not download, copy, print, display, perform, reproduce, publish, modify, prepare derivative works from, license, transmit, or distribute any Content from this Site in whole or in part, for any public or commercial purpose without prior written consent from Povital. Povital grants you a limited, personal, non-exclusive, non-transferable license to access the Site, and to use the Content, solely for personal, internal and non-commercial purposes. Povital (on behalf of itself and its suppliers and licensors) reserves all rights not expressly granted herein. If you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, “Feedback”), Povital will own all such Feedback and you hereby assign to Povital all your rights to such feedback.

Without limiting the foregoing, as between you and Povital, Povital is the owner and/or authorized user of any trademark, registered trademark, logo, and/or service mark appearing on the Site (the “Marks”). Nothing on the Site should be construed to grant any license or right to use any Povital Mark. You may not use or exploit any Marks without prior written consent from Povital.

• 4. Links from and to the Site. The Site may contain links to third party websites (“Third Party Sites”). Third Party Sites are not reviewed, controlled or examined by Povital in any way and Povital is not responsible for any content contained therein. These links do not imply Povital’s endorsement of or association with any Third-Party Site. Povital is not liable, directly or indirectly, to anyone for any loss or damage arising from or in connection with use of the ThirdParty Sites.
• 5. Disclaimer of Warranties. THE SITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT AND FUNCTIONALITY THEREOF, IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF AVAILABILITY, ACCURACY, COMPLETENESS, USEFULNESS, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND POVITAL (ON BEHALF OF ITSELF AND ITS SUPPLIERS AND LICENSORS) HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED. NO ADVICE, RESULTS, INFORMATION OR MATERIALS, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
• 6. Limitation of Liability. TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL POVITAL, ITS AFFILIATES (INCLUDING AFFILIATED FUNDS) OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS (THE “POVITAL PARTIES”), BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE CONTENT, EVEN IF ANY POVITAL PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT WILL THE TOTAL LIABILITY OF ANY POVITAL PARTY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM OR RELATED TO THE TERMS, THE CONTENT, AND/OR YOUR USE OF THE SITE, EXCEED, IN THE AGGREGATE, $100.00.
• 7. Choice of Law and Arbitration.
• 1. Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of New York, without regard to the conflicts of laws provisions thereof.
• 2. Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with Povital and limits the manner in which you can seek relief from Povital. Both you and Povital acknowledge and agree that for the purposes of any dispute arising out of or relating to the subjec t matter of these Terms, Povital’s officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.
• (a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Monroe County, New York. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
• (b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. Povital will pay all arbitration fees for claims less than seventy-five thousand ($1,000) dollars. Povital will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
• (c) Small Claims Court; Infringement. Either you or Povital may assert claims, if they qualify, in small claims court in Monroe County, New York or any United States county where you live or work. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
• (d) Waiver of Jury Trial. YOU AND POVITAL WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and Povital is instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and Povital over whether to vacate or enforce an arbitration award, YOU AND POVITAL WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
• (e) Waiver of Class or Consolidated Actions. EXCEPT TO THE EXTENT ARISING OUT OF THE UNITED STATES OF AMERICA CONSUMER PRIVACY ACT, ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor Povital is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
• (g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or Povital to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and Pov ital agree that any judicial proceeding (other than small claims actions) will be brought in the state or federal courts located in, respectively, Monroe County, New York, or the federal district in which that county falls.
• (h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with Povital.
• 8. General Information. The failure of Povital to exercise or enforce any right or provision of these Terms does not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You may not assign these Terms or transfer any of your rights or obligations hereunder without Povital’s express written consent. These Terms inure to the benefit of Povital’s successors, assigns and licensees. These Terms are the entire agreement between you and Povital with respect to the subject matter herein.

Contact Us. If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:

Email: compliance@povital.com

Anti-Spam Guidance

A Compliance Guide for Business

Do you use email in your business? The CAN-SPAM Act, a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations.

Despite its name, the CAN-SPAM Act doesn’t apply just to bulk email. It covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” including email that promotes content on commercial websites. The law makes no exception for business-to-business email. That means all email – for example, a message to former customers announcing a new product line – must comply with the law.

Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $41,484, so noncompliance can be costly. But following the law isn’t complicated. Here’s a rundown of CAN-SPAM’s main requirements:

• Don’t use false or misleading header information: Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
• Don’t use deceptive subject lines: The subject line must accurately reflect the content of the message.
• Identify the message as an ad: The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
• Tell recipients where you’re located: Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
• Tell recipients how to opt out of receiving future email from you: Your message must include a clear explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.
• Honor opt-out requests promptly: Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.
• Monitor what others are doing on your behalf: The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.

Q. How do I know if the CAN-SPAM Act covers email my business is sending?

A. What matters is the “primary purpose” of the message. To determine the primary purpose, remember that an email can contain three different types of information:

• Commercial content – which advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose
• Transactional or relationship content – which facilitates an already agreed-upon transaction or updates a customer about an ongoing transaction
• Other content – which is neither commercial nor transactional or relationship

If the message contains only commercial content, its primary purpose is commercial and it must comply with the requirements of CAN-SPAM. If it contains only transactional or relationship content, its primary purpose is transactional or relationship. In that case, it may not contain false or misleading routing information, but is otherwise exempt from most provisions of the CAN-SPAM Act.

Q. How do I know if what I’m sending is a transactional or relationship message?

A. The primary purpose of an email is transactional or relationship if it consists only of content that:

• Facilitates or confirms a commercial transaction that the recipient already has agreed to
• Gives warranty, recall, safety, or security information about a product or service
• Gives information about a change in terms or features or account balance information regarding a membership, subscription, account, loan or other ongoing commercial relationship
• Provides information about an employment relationship or employee benefits
• Delivers goods or services as part of a transaction that the recipient already has agreed to

Q. What if the message combines commercial content and transactional or relationship content?

A. It’s common for email sent by businesses to mix commercial content and transactional or relationship content. When an email contains both kinds of content, the primary purpose of the message is the deciding factor. Here’s how to make that determination: If a recipient reasonably interpreting the subject line would likely conclude that the message contains an advertisement or promotion for a commercial product or service or if the message’s transactional or relationship content does not appear mainly at the beginning of the message, the primary purpose of the message is commercial. So, when a message contains both kinds of content – commercial and transactional or relationship – if the subject line would lead the recipient to think it’s a commercial message, it’s a commercial message for CAN-SPAM purposes. Similarly, if the bulk of the transactional or relationship part of the message doesn’t appear at the beginning, it’s a commercial message under the CAN-SPAM Act.

Q. What if the message combines elements of both a commercial message and a message with content defined as “other”?

A. In that case, the primary purpose of the message is commercial and the provisions of the CAN-SPAM Act apply if:

• A recipient reasonably interpreting the subject line would likely conclude that the message advertises or promotes a commercial product or service; and
• A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is to advertise or promote a product or service.

Factors relevant to that interpretation include the location of the commercial content (for example, is it at the beginning of the message) how much of the message is dedicated to commercial content; and how color, graphics, type size, style, etc., are used to highlight the commercial content.

Q. What if the email includes information from more than one company? Who is the “sender” responsible for CAN-SPAM compliance?

A. If an email advertises or promotes the goods, services, or websites of more than one marketer, there’s a straightforward method for determining who’s responsible for the duties the CAN-SPAM Act imposes on “senders” of commercial email. Marketers whose goods, services, or websites are advertised or promoted in a message can designate one of the marketers as the “sender” for purposes of CAN-SPAM compliance as long as the designated sender: Meets the CAN-SPAM Act’s definition of “sender,” meaning that they initiate a commercial message advertising or promoting their own goods, services, or website; is specifically identified in the “from” line of the message; and complies with the “initiator” provisions of the Act – for example, making sure the email does not contain deceptive transmission information or a deceptive subject heading, and ensuring that the email includes a valid postal address, a working opt-out link, and proper identification of the message’s commercial or sexually explicit nature. If the designated sender doesn’t comply with the responsibilities the law gives to initiators, all marketers in the message may be held liable as senders.

Q. My company sends email with a link so that recipients can forward the message to others. Who is responsible for CAN-SPAM compliance for these “Forward to a Friend” messages?

A. Whether a seller or forwarder is a “sender” or “initiator” depends on the facts. So, deciding if the CAN-SPAM Act applies to a commercial “forward-to-a-friend” message often depends on whether the seller has offered to pay the forwarder or give the forwarder some other benefit. For example, if the seller offers money, coupons, discounts, awards, additional entries in a sweepstakes, or the like in exchange for forwarding a message, the seller may be responsible for compliance. Or if a seller pays or gives a benefit to someone in exchange for generating traffic to a website or for any form of referral, the seller is likely to have compliance obligations under the CAN-SPAM Act.

Q. What are the penalties for violating the CAN-SPAM Act?

A. Each separate email in violation of the law is subject to penalties of up to $41,484, and more than one person may be held responsible for violations. For example, both the company whose product is promoted in the message and the company that originated the message may be legally responsible. Email that makes misleading claims about products or services also may be subject to laws outlawing deceptive advertising, like Section 5 of the FTC Act. The CAN-SPAM Act has certain aggravated violations that may give rise to additional fines. The law provides for criminal penalties – including imprisonment – for:

• Accessing someone else’s computer to send spam without permission.
• Using false information to register for multiple email accounts or domain names.
• Relaying or retransmitting multiple spam messages through a computer to mislead others about the origin of the message.
• Harvesting email addresses or generating them through a dictionary attack (the practice of sending email to addresses made up of random letters and numbers in the hope of reaching valid ones), and taking advantage of open relays or open proxies without permission.

Q. Are there separate rules that apply to sexually explicit email?

A. Yes, and the FTC has issued a rule under the CAN-SPAM Act that governs these messages. Messages with sexually oriented material must include the warning “SEXUALLY-EXPLICIT:” at the beginning of the subject line. In addition, the rule requires the electronic equivalent of a “brown paper wrapper” in the body of the message. When a recipient opens the message, the only things that may be viewable on the recipient’s screen are:

• the words “SEXUALLY-EXPLICIT”; and
• the same information required in any other commercial email: a disclosure that the message is an ad, the sender’s physical postal address, and the procedure for how recipients can opt out of receiving messages from this sender in the future.

No graphics are allowed on the “brown paper wrapper.” This provision makes sure that rec ipients cannot view sexually explicit content without an affirmative act on their part – for example, scrolling down or clicking on a link. However, this requirement does not apply if the person receiving the message has already given affirmative consent to receive the sender’s sexually oriented messages.

Email validation

We take our anti-spam policy seriously. Prior to distribution, all email addresses are subject to verification. Our email validation software identifies and removes:

• Invalid emails from your list to prevent email bounces from ruining your deliverability
• Spam traps and known email complainers
• Duplicate email addresses.
• Inactive email addresses.

Your use of Povital’s website and services is subject to this policy. Please note that, in accorda nce with the Povital Acceptable Use Policy, we may change this policy at any time. It is your responsibility to keep up-to-date with and comply with this policy.

Unsubscribe Link

Email messages sent from Povital must contain an “unsubscribe” link that allows subscribers to remove themselves from your email messages. You acknowledge and agree that you will not hide, disable, or remove or attempt to hide, disable, or remove the opt-out link from the email invitation. You will actively manage and process unsubscribe requests received by you, and update your email lists and address books to reflect the unsubscribe requests.

Email Bounce Statistics & Client Restrictions

Povital uses industry-standard metrics to report on how your emails are performing. You can get insights into the number of emails that are valid, how many have been delivered, and how many have been opened. Opens are a great indicator that your emails are engaging your recipients. This shows that the email is interesting enough to a recipient for them to view. POVITAL strives hard to maintain a 97% delivery rate in most of their email distribution campaigns. However, the results might vary based on the quality of the email address list, type of content, and ISP spam traps of the receivers.

Automatic Global Unsubscribe

A global unsubscribe occurs when a subscriber chooses to unsubscribe from every email sent from Povital. Povital manages this list, so a subscriber’s status changes to Unsubscribed on the global list when they globally unsubscribe. None of our clients can email that subscriber, regardless from what message they clicked the unsubscribe link.