This License agreement (hereinafter, the “Agreement”) is entered
MailUp Inc. , a Delaware corporation with offices located at 450 Townsend Street, San Francisco, CA 94107, acting for and on behalf of itself and each of its Affiliates (hereinafter, “MailUp”),
The Client, identified with the information provided by completing the relevant personal information form (hereinafter, the “ Client”).
MailUp and the Client individually, the “Party”, and collectively, the “Parties”.
In consideration of the foregoing recitals, the Parties agree and stipulate the following Agreement for the Non-Exclusive Use of the Software.
The recitals, the definitions and the schedules (external links) to the Agreement, constitute an integral and substantive part hereof.
|Agreement||means these terms and conditions;|
|Additional Cost(s) Per User||means an additional cost per month, depending on the paid Plan chosen, that the Client shall pay for any Additional User(s);|
|Additional User(s)||means a user that, in addition to the standard number of Users purchased with a Plan, may access and use the Software with an “Additional Cost Per User” for the Client;|
|Client Application(s)||means Client’s mobile or website application(s), in which the Client wants to embed the Software;|
|Client Marks||means Client’s trademarks, trade names, service marks, trade dress, logos and derivative works;|
|Documentation||means documentation provided by MailUp in electronic format to the Client;|
|Effective Date||means the date notified by MailUp to the Client with an email sent to the email address provided by the Client in the Register Form and that the Client declares to periodically check;|
|Intellectual Property||means all current and future worldwide copyright, patents, utility models industrial designs, trademarks, domain names, database right and other intellectual property rights, whether or not capable of registration, whether or not registered, and applications of any of the foregoing and all intellectual property rights whether now known or created in the future;|
|MailUp Marks||means the MailUp® logo, the BEE Plugin logo, and the BEE Plugin icons and derivatives thereof;|
|Plan||means the different Software subscription plan (free or for charge) chosen by the Client and available at https://developers.beefree.io/signup;|
|Registration Form||means the registration form available at https://developers.beefree.io/signup;|
|Software||means the BEE Plugin software, including modifications, enhancements, improvements, updates, additions, derivative works, object code compiled therefrom, documentation and related material;|
|Term||means a fixed duration equal to 1 (one) month during which this Agreement will be in effect.|
|User(s)||means a standard number of user uniquely identified by a UID parameter that may have access and use the Software without an “Additional Cost Per User” ( For more information please see the BEE Plugin technical documentation available at http://help.beefree.io/hc/en-us/articles/208185235-How-does-the-UID-parameter-work- )|
|Website||means http://beefree.io, including any third-level-domain and sub-domains.|
Subject to the Client’s acceptance of and compliance with this Agreement and, where required, with the payment requirements for the Software, MailUp hereby grants the Client a limited (except as specifically set out in this Agreement), worldwide, non-exclusive right and license to:
For clarity, the foregoing license rights granted by MailUp to Client under this Agreement specifically include the license and right:
The foregoing grant provides Client the right to freely sub-license and make available access and use rights to the Software to (i) Client’s customers under a license, sublicense or services agreement with the Client under the Client’s own branding, providing such Client’s customers and their respective authorized users the right to access, execute, display, perform and otherwise use the Software for their respective internal business purposes; and (ii) Third Party Services Providers (as defined below in this Section) solely for the purpose of permitting such Third Party Services Providers the right to access, execute, display, perform and otherwise use the Software as part of the services provided by such Third Party Services Providers to Client and to reproduce the Software for archival, back-up, and disaster recovery purposes for the benefit of Client. As used in this Agreement the term “ Third Party Services Providers” shall mean those third party information technology vendors (including third party hosting provider(s)) of Client who are subject to contractual obligations of confidentiality and protection of proprietary rights.
Except for the usage rights Client may grant to Users, Additional Users and Third Party Service Providers and except for the assignment or transfer by Client to any of its Affiliates, the license rights granted in this Agreement are not assignable to third parties.
The Client is solely responsible for the operation of the Client Applications and for any terms and conditions applicable to use of and access to Client Applications by its users. The Client will not make any representation or warranty on behalf of MailUp concerning the use, availability or features of the Software.
Except for a free Plan, a limited number of Users, depending on the paid Plan chosen by the Client, can use the Software. For any Additional User the Client shall pay an Additional Cost Per User as better define in article 6.
The Client is aware and expressly accepts that the Software is an instrument reserved to professional users, and therefore this Agreement is not subject to the legal framework applicable to agreements with consumers.
If the Client is required to set up an account in order to use the Software, the Client must maintain the confidentiality of its account and password, and the Client agrees to notify MailUp promptly of any unauthorized access or of any suspected breach of its account’s security. The Client may be held liable for losses incurred by MailUp and/or another party due to a third party using the Client’s account or password.
The License rights to the Software granted in this Agreement are for the Client’s and its customers’ internal business purposes and the Client shall not license, distribute or otherwise grant rights in the Software to its Users and Additional Users except as imbedded, linked, bundled with, or otherwise incorporated into the Client Application. The Client shall not market, sublicense or resell the Software as a stand-alone product or services offering.
The Client shall not knowingly or intentionally grant to any User or Additional User greater license rights to the Software than the rights granted to the Client under this Agreement and shall cause each customer to enter into a written license agreement prior to Users and Authorized Users of such customer being given access to the Software, which contains license restrictions with respect to the Software at least as restrictive as the restrictions applicable to the Client Application.
The Client agrees when using the Software will not:
The Client declares and undertakes to inform its Users about such non-authorized uses.
In the event that MailUp becomes aware about the use of the Software in contrast with the above cases by the Client or its Users, MailUp reserves the right to immediately and definitively block access to and use of the Software and/or to declare the automatic termination of the Agreement by law due to breach in accordance with article 7 of this Agreement.
This Agreement will be effective commencing on the Effective Date and continuing indefinitely thereafter unless and until terminated according to the provisions of this Section 5. The Agreement will automatically renew for additional terms of 1 (one) month each (the “Term”), in the absence of cancellation which the Client may exercise until the expiry date of the Agreement by using the special function “delete app” made available in the application details. In the event of cancellation submitted beyond the above-mentioned essential deadline, such cancellation will not be effective and the Client will have to pay the entire fee for the subsequent period, even if it does not use the service, in consideration of the availability of the Software. It is agreed that if the Client intends to send the cancellation prior to the conclusion of the pre-selected period, it will be required to pay the usage fee for the entire Term and, if any, all additional costs.
Except for a free Plan, the Client, in order to make available the Software and for its use, undertakes to pay a periodic fee in advance according to the specific Plan. The payment shall be made by credit card. A recurring payment method will be activated which will entail, on the date of renewal, an automatic pre-authorized charge of the amount of the fee for the use of the Software for a period of the same duration, subject to cancellation which may be effected by the Client in accordance with the procedures and timeframes provided under article 5.
If upon the automatic renewal of the Agreement the pre-authorized charge were unsuccessful for any reason (merely by way of example and without any limitation: expired credit card or nonexistence of the necessary funds), this will give rise to the absolute right to block the use of the Software and the simultaneous notification of the payment failure to the Client’s email address provided by the Client in the Register Form and that the Client declares to periodically check. Upon the expiry of an additional 14 (fourteen) calendar days without payment by the Client, MailUp may terminate the Agreement in accordance with article 8 of the Agreement, without prejudice to MailUp’s right to the collection and/or definitive withholding of the fees and of additional costs for the entire contractual term. The Parties agree that in the event of delay in the payment of the above-mentioned fee, shall accrue an interest at a rate of 1 ½% per month, or the highest rate allowed by applicable law, whichever is lower.
Except for a free Plan, a limited number of Users, depending on the paid Plan chosen by the Client, can use the Software. The Client declares that it is aware that for any Additional User the Client shall pay an Additional Cost Per User available at the following address https://developers.beefree.io/signup. The Client declares that it is aware of the fact that the exact number of Additional Users will be apparent only at the end of the Term. Therefore, the Client accepts and authorizes that at the end of the Term and/or on the date of renewal each Additional Cost Per User will be automatically charged on its credit card.
Service Level Agreement. For free Plans, MailUp will fulfill service level agreements on a commercially reasonable efforts basis.
For paid Plans, MailUp guarantees that the Software will be available 99,5% of the time, 24 hours a day, 365 days a year. This Software availability guarantee does not cover services that are not directly delivered by MailUp and whose availability is outside of MailUp’s control: these include the availability of an Internet connection at the Client’s location, software or hardware problems that are affecting the Client’s computers, and others. The 99,5% uptime calculation does not include maintenance windows that are scheduled to occur at certain times, and are communicated to all Clients before they occur.
Support. For free Plans, MailUp will not provide any support to the Client. Anyway, such Client may use the online manuals and other documentation available at http://help.beefree.io. Furthermore, such Client may find technical information on the online community available at http://help.beefree.io/hc/communities/public/topics.
For paid Plan, MailUp will provide support to the Client through: a) online manuals and other documentation available athttp://help.beefree.io; b) online community available at http://help.beefree.io/hc/communities/public/topics; c) via e-mail by opening a support ticket at email@example.com. When a support ticket is opened, MailUp staff will use its best efforts to respond to it in a timely manner: a reply to the support ticket is typically provided within 12 (twelve) business hours.
Termination for breach. MailUp may terminate this Agreement for breach by simple written notice which may be sent by email, in the event of breach of the essential obligations provided under articles 4 (Use Policy), 5 (Fee And Payments); 9 (Warranties); 13 (Assignment) 14 (Ownership of the Software) and if the Client is put into liquidation or admitted to insolvency proceedings. The cessation of the Agreement, in the situations referred to above, will take place automatically upon the Client’s receipt of the communication through which MailUp declares its intention to avail itself of this clause.
Effect of Termination or Cancellation. Subject to the terms of this Agreement, upon the cancellation or termination of this Agreement for any reason:
Warranties by the Client. The Client represents and warrants that: (i) it has the right to enter into this Agreement and to fully perform its obligations hereunder; (ii) the Client’s services, products, materials, data, and information used by Client in connection with this Agreement and the Software, as well as Client’s and its permitted customers’ and users’ use of the Software does not as of the Effective Date, and will not during the Term of this Agreement, operate in any manner that would violate any applicable law or regulation. In the event of any breach, or reasonably anticipated breach, of any of Client’s warranties herein, in addition to any other remedies available at law or in equity, MailUp will have the right to immediately, in MailUp’s sole discretion, suspend the access and use of the Software if deemed reasonably necessary by MailUp to prevent any harm to MailUp or its business.
Compliance with Law. Each party shall comply with all laws and regulations applicable to such party in exercising its rights and discharging its obligations under this Agreement and making available the Software (in the case of MailUp) or the Client Applications (in the case of Client) in accordance with the terms and conditions of this Agreement..
Warranties by MailUp. MailUp represents and warrants that: (i) it has the right to enter into this Agreement and to fully perform its obligations hereunder; (ii) it owns or has sufficient rights to the Software and all components thereof in order to grant the license rights to Client as contemplated by this Agreement.
EXCEPT FOR THE FOREGOING, THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND CLIENT’S USE OF THE SOFTWARE IS AT ITS OWN RISK. MAILUP DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MAILUP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
Client’s liability. The Client undertakes to indemnify and hold harmless MailUp from and against all damages, losses, liabilities, costs, charges and expenses, including any legal fees and expenses, that may be incurred or suffered by MailUp or for which the latter received a payment request, that would not have been incurred or suffered or requested if (i) the Client had fulfill the obligations undertaken upon entering into this Agreement and (ii) the representations and warranties provided by the Client by entering into this Agreement had been truthful, accurate, complete and not misleading.
MailUp’s liability. MailUp shall not be liable for any damage, liability or loss resulting from a cause over which such entities do not have direct control, including but not limited to the failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorized access or theft.
Maximum Liability. EXCEPT IN CASES OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, MAILUP’S LIABILITY FOR BREACH UNDER THIS AGREEMENT MAY NOT, UNDER ANY CIRCUMSTANCES, EXCEED AN AMOUNT EQUAL TO 20% OF THE FEE PAID BY THE CLIENT TO MAILUP DURING THE TERM IN WHICH THE DAMAGES FIRST OCCURRED.
MailUp may unilaterally amend this Agreement and the aspect or the feature of the Software, including, but not limited to, content, hours of availability, equipment needed for access or use, fees and charges for use. MailUp will inform the Client about such amendments and/or supplements with a notice to the Client’s email address, that will be sent at least 1 (one) month before the next renewal.
In the event that the Client does not intend to accept the amendments and/or supplements referred to above, the Client shall cancel its subscription in accordance with the provision of article 5.
All amendments will be effective from the next renewal and the subsequent use of the Software is to be deemed an acceptance by the Client of the same amendments and/or supplements.
MailUp may not be deemed in any way liable for the failure to perform this Agreement caused by factors falling outside its reasonable control or force majeure events or random chance such as, by way of example and without any limitation, uprisings, acts of terrorism and war, strikes, riots, tornadoes, hurricanes, floods, mudslides and landslides.
The Client may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of MailUp. Any attempted assignment or delegation without such consent will be void. MailUp may assign this Agreement in whole or part. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
MailUp is the sole and exclusive owner of all rights and interests related to the Software and any Intellectual Property related to the same, including developments that may derive from the same. MailUp owns the website, the Software and the information contained therein. The unauthorized copying, creation of derivate works and dissemination of the same in breach of the Intellectual Property rights are prohibited.
The Client is the sole and exclusive owner of all rights and interests related to the Client Applications and any Intellectual Property related to the same, including developments and derivative works that may derive from the same. The unauthorized copying, creation of derivate works and dissemination of the same are prohibited.
Trademarks and Trade Names .
Each party acknowledges and agrees that (i) MailUp owns all right, title and interest in and to the MailUp Marks, and all Intellectual Property rights therein and (ii) Client owns all right, title and interest in and to the Client Marks, and all Intellectual Property rights therein.
In case of a free Plan, the Client acknowledges and accepts the fact that MailUp may insert in the interface of the Software:
Any tax cost deriving from the performance of this Agreement, including taxes for advertising activities, shall be borne by the Client.
This Agreement, including all of its schedules which constitute an integral part hereof, abrogates and supersedes all previous agreements, understandings and negotiations, whether written or oral, between the Parties and concerning the subject matter of this Agreement.
The fact that either of the Parties does not enforce in a timely manner its rights arising under one or more clauses hereof may not be deemed a general and tacit waiver of the rights and duties provided under the clause, nor may it preclude such Party from later demanding the exact and rigorous performance of each and every contractual clause.
If one or more of the clauses of this Agreement is declared null and void or unenforceable by the competent court of law, the remaining clauses of this Agreement shall continue to be valid and effective between the Parties, unless such clause constituted a determinant reason for the conclusion of this Agreement.
The headings contained in this Agreement or in any exhibit or schedule hereto, or linked document, as applicable, are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
Unless otherwise provided in this Agreement, any notice or communication which a Party is required or authorised by this Agreement to serve on another Party shall be sufficiently served if sent to the other party at the addresses specified below:
If to MailUp: 450 Townsend Street, San Francisco, CA 94107; E-mail: firstname.lastname@example.org
If to Client: to the email address provided by Client in the Registration Form.
The Parties hereby agree that: (a) words in electronic form shall be deemed to be “writing” for the purposes of all applicable legislation where “writing” is required; and (b) electronic evidence shall be admissible in any court or other quasi-judicial proceedings between the Parties.
Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Confidential Information includes, without limitation, trade secrets, ideas, processes, formulae, computer software (including source code), algorithms, data, data structures, scripts, applications, programming interfaces, protocols, know-how, copyrightable material, improvements, inventions (whether or not patentable), techniques, strategies, business plans, product development plans, timetables, forecasts, customer and supplier lists, product and/or service designs, specifications and schematics, product and/or service costs, product and/or service prices, product and/or service names, financial information, employee information, marketing plans, business opportunities, research activities and results, market research activities and results, and development activities and results. Each party shall not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and shall take reasonable precautions to protect the confidentiality of such information.
Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
The remedy at law for any breach or threatened breach of this Article 19 (Confidentiality) shall be inadequate, and in addition to any other remedy available at law, in equity or under this Agreement, the non-breaching party shall be entitled to seek injunctive relief for such breach or threatened breach.
The following provisions will survive any expiration or termination of the Agreement: articles 6 (Fee and Payments); 9 (Warranties); 10 (Liability); 14 (Ownership of the Software and Client’s Applications); 16 (Tax Costs); 19 (Confidential Information); 21 (Governing Law, Venue and Jurisdiction).
This Agreement shall be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State. Each party hereto irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of California, San Francisco County, or (b) the United States District Court for the Northern District of California, for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby or thereby. Each of Client and MailUp agrees to commence any such action, suit or proceeding either in the United States District Court for the Northern District of California or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Superior Court of the State of California, San Francisco County. Each of Client and MailUp further agrees that service of any process, summons, notice or documents by U.S. registered mail to such party’s respective address set forth above shall be effective service of process for any action, suit or proceeding in California with respect to any maters to which it has submitted to jurisdiction in this Section. Each of Client and MailUp irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby and thereby in (i) the Supreme Court of the State of California, San Francisco County, or (ii) the United States District Court for the Northern District of California, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.