BEE Plugin – Terms of Service

This BEE Plugin License Agreement (the “Agreement”) is entered between MailUp Inc., a Delaware corporation with offices located at 1111 Broadway, Suite 300, Oakland, CA 94607, USA (“MailUp”), acting for and on behalf of itself and each of its Affiliates, and the client identified with the information provided by completing the Registration Form as below defined (“Client”).

MailUp and Client individually also the “Party”, and collectively, the “Parties”.

WHEREAS

  1. MailUp is a company specialized in the digital marketing and digital communications sector;
  2. MailUp has developed a software called BEE Plugin (including modifications, enhancements, improvements, updates, additions, derivative works, object code compiled therefrom, documentation and related material), a JavaScript web plugin, easily embeddable in other software packages or mobile applications, and used for the purpose of allowing users of those software packages or mobile applications to create email messages and other documents using a drag-&-drop user interface (the “Software”);
  3. Client is the owner, developer or licensee of certain web-based proprietary and commercially available software applications. Client wishes to use the Software and make it available to its customers as part of, or in connection with, its software applications and MailUp has agreed to such use on the terms and conditions of this Agreement;
  4. Client carefully examined the Software and found it appropriate for its needs and purpose;
  5. The Software is an instrument reserved to professional users and Client undertakes to use it exclusively in connection with its business and for purposes related to it.

NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS

1. Recitals, definitions, and external links

The recitals, the definitions and the external links to the Agreement constitute an integral and substantive part hereof.

2. Definitions

The following terms in this Agreement shall have the meaning attributed to them under this section 2 when capitalized:

Access Credentials means any user name and password created by Client at the time of registering an account at https://beefree.io/bee-plugin/pricing/ and used to access the online system that allows Client to create and configure a Client Application.
Action has the meaning set forth in Section 12.2.
Additional User(s) means the total number of unique users of the Software logged during the Term for each Client Application minus the Pre-Paid Users included in the Subscription Plan selected for that Client Application.
Additional MSAPI Calls means total MSAPI Calls executed during the Term for each Client Application minus the Pre-Paid MSAPI Calls included in the Subscription Plan selected for that Client Application.
Additional MSAPI Call Fees means total MSAPI Calls executed during the Term, minus Pre-Paid MSAPI Calls, times the per-call fee specified for the Subscription Plan selected for the Client Application.
Affiliates means any person, corporation, or other legal entity that, directly or indirectly, controls, is controlled by, or is under common control with MailUp. For this purpose, “control” shall mean (i) possession, direct or indirect, of the power to direct or cause direction of the management and policies of a party, whether through voting securities, by contract or other means; and/or (ii) ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding equity or voting shares of a party.
Agreement means this BEE Plugin License Agreement.
Application Keys means a set of unique identifiers (Client ID and Client Secret Key) provided to Client for each instance of Client Application and used to authorize each use of the Software for that instance of Client Application.
Available, Availability means that the Editor is operable. The Editor will be considered Available notwithstanding malfunctions of the Software that do not affect operability of the Editor.
Availability Guaranty has the meaning set forth in Section 10.1
Business Days means any calendar day (other than a Saturday or a Sunday) except for those listed as legal holidays on the US Office of Personnel Management Web site at https://www.opm.gov/policy-data-oversight/snow-dismissal-procedures/federal-holidays/.
Client has the meaning set forth in the headings to this Agreement.
Client Application means an instance of the Software created by Client at https://developers.beefree.io. Client may create multiple Client Applications to use multiple instances of the Software embedded in various Client Software Packages.
Client Data means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly by Client or a User by or through the Software.
Client Software Package(s) means Client’s software application(s), in which Client wants to embed the Software.
Client Trademarks means Client’s trademarks, trade names, service marks, trade dress, logos and derivative works.
Confidential Information has the meaning set forth in the Section 21.
Data Protection Addendum or DPA has the meaning set forth in the Section 18.
Documentation means documentation provided by MailUp to Client in electronic format.
Editor Means that User-facing portion of the Software that has the function of editing content (i.e. enabling User to view and modify content created with the Software) along with the back-end portion of the Software that has the function of providing the content back to Client Software Package.
Effective Date means the date this Agreement comes into effect, as notified by MailUp to Client with an email sent to the email address provided by Client in the Registration Form and that Client declares to periodically check for accuracy.
Escrow Agent has the meaning set forth in the Section 6.1.
Escrow Agreement has the meaning set forth in the Section 6.1.
Escrow Fee has the meaning set forth in the Section 6.2.
Fees means Subscription Fees for the following Term plus, if applicable, Additional User Fees and Additional MSAPI Call Fees for the current Term.
Harmful Code means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Client or any User from accessing or using the Software or MailUp Systems as intended by this Agreement. Harmful Code does not include any MailUp Disabling Device.
Indemnitee has the meaning set forth in the Section 12.3.
Indemnitor has the meaning set forth in the Section 12.3.
Insolvent has the meaning set forth in Section 6.1.
Initial Term has the meaning set forth in Section 8.1.
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.
Losses means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
MailUp has the meaning set forth in the headings to this Agreement.
MailUp Disabling Device means any software, hardware or other technology, device or means (including any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by MailUp or its designee to disable Client’s or any User’s access to or use of the Software automatically with the passage of time or under the positive control of MailUp or its designee.
MailUp Indemnitee has the meaning set forth in Section 12.
MailUp Materials means the Software, Specifications, Documentation and MailUp Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by MailUp or any Subcontractor in connection with the Software, including any third party materials licensed to MailUp, or otherwise comprise or relate to the Software or MailUp Systems. For the avoidance of doubt, MailUp Materials include Resultant Data and any information, data or other content derived from MailUp’s monitoring of Client’s access to or use of the Software, but do not include Client Data.
MailUp Systems means the information technology infrastructure used by or on behalf of MailUp in providing the Software, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by MailUp or through the use of third-party services.
MailUp Trademarks means the MailUp verbal and design trademark, the BEE Plugin verbal and design trademark and derivatives thereof. MailUp is a registered trademark.
Message Services API (MSAPI) means an Application Programming Interface (API) that allows Client to submit a document generated with the Software and request that certain operations are executed on it, such as producing an updated HTML version of it. The API accepts the requests and provides the responses documented on the Software’s online technical documentation that is available at https://docs.beefree.io.
Message Services API Call (MSAPI Call) means each successful request submitted by Client Application to MSAPI.
Part(ies) has the meaning set forth in the headings to this Agreement.
Pre-Paid MSAPI Calls means the number of MSAPI Calls executed during the Term of Client Subscription that are included in Client’s Subscription Plan as listed on the BEE Plugin pricing page located at https://beefree.io/bee-plugin/pricing/ or otherwise provided to Client.
Pre-Paid Users means a fixed number of users, uniquely identified by the UID parameter as defined in the Software documentation, who have access to use the Software without incurring “Additional User Fees”. Software documentation with regard to the UID parameter is available at https://support.beefree.io/hc/en-us/articles/360004546351-How-does-the-UID-parameter-work-.
Privacy and Security Policy has the meaning set forth in Section 5.1.
Registration Form means the registration form available at https://beefree.io/bee-plugin/pricing/.
Renewal has the meaning set forth in Section 8.2.
Resultant Data has the meaning set forth in Section 23.
Scheduled Downtime has the meaning set forth in Section 10.2.
Service Credit has the meaning set forth in Section 10.5.
Software has the meaning set forth in recitals (II).
Source Materials has the meaning set forth in Section 6.1.
Specifications has the meaning set forth in Section 3.1.
Subcontractors has the meaning set forth in Section 3.5.
Subscription Fees means a periodic fee that Client undertakes to pay at the beginning of the Term for use of the Software under the provisions of the selected Subscription Plan.
Subscription Plan means a subscription to the Software that provides a certain number of features as listed at https://beefree.io/bee-plugin/pricing/ and a certain number of Pre-paid Users and Pre-Paid MSAPI Calls, as listed on the same page. A Subscription Plan must be selected for each Client Application created by Client.
Support Services has the meaning set forth in Section 10.6.
Term has the meaning set forth in Section 8.2.
Third Party Service Providers has the meaning set forth in Section 3.2 (ii).
Title 11 has the meaning set forth in Section 6.3.
Unavailable, Unavailability means that the Editor is not Available, is inoperable, or is operable but severely limited, as measured in continuous 1-minute increments.
Uptime means the time in a month of service when the Editor is Available.
User(s) means Pre-paid Users together with Additional Users.
Website means https://beefree.io, including any third-level domains and sub-domains.

3. License

3.1. License. Subject to Client’s acceptance of and compliance with this Agreement, and in accordance with the specifications set forth herein (“Specifications”) MailUp hereby grants Client a limited, worldwide, non-exclusive, non-assignable and non-transferrable (except as specifically set out in this Agreement) right and license to:

  1. embed the Software within Client Software Packages or otherwise link or interoperate the Software with the Client Software Packages for the purpose of allowing Users and individuals authorized by such Users to access, use and operate the Software in connection with access and use of the Client Applications;
  2. demonstrate the Software to potential Users.

For clarity, the foregoing license rights granted by MailUp to Client under this Agreement specifically include the license and right::

  1. to embed, bundle, link or otherwise incorporate the Software into Client’s Software Packages;
  2. to sublicense, grant usage rights and distribute the Software to Client’s customers in connection with the distribution of the Client Applications;
  3. to use and distribute the Software documentation and related materials as reasonably required to affect the foregoing license rights;
  4. to the extent reasonably required to effect the embedding, bundling, linking and/or incorporation of the Software described in this Agreement, to reverse engineer, decompile, recompile the Software;
  5. to make the Software available for access and use by Client’s customers under Client’s or its Affiliates’ branding;
  6. to access, execute, display, perform, operate and otherwise use the integration or interface developed by MailUp to create interoperability between the Software and the Client Software Packages (including any application programming interface developed and maintained by MailUp to enable such interoperability) and to authorize Client customers to access, execute, display, perform, operate and otherwise use the Software utilizing such integration or interface within the Client Applications.

3.2 Sublicense. The foregoing limited license provides Client the right to sub-license and make available access and use rights to the Software to:

  1. Client’s customers under a license, sublicense or services agreement with Client under 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
  2. 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 limited usage rights Client may grant to 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 transferable and not assignable to third parties.

3.3. Restrictions. The License rights to the Software granted in this Agreement are for Client’s and its customers’ internal business purposes and Client shall not license, distribute or otherwise grant rights in the Software to its Users except as embedded, linked, bundled with, or otherwise incorporated into the Client Applications. Client shall not market, sublicense or resell the Software as a stand-alone product or services offering. Client shall not knowingly or intentionally grant to any User greater license rights to the Software than the rights granted to Client under this Agreement and shall cause each customer to enter into a written license agreement prior to users of such customer being given access to the Software, which contains license restrictions with respect to the Software at least as restrictive as those provided in this Agreement and the restrictions applicable to the Client Software Packages. Client will not make any representation or warranty on behalf of MailUp concerning the use, availability or features of the Software or the Editor.

3.4. Consumer legal framework. 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.

3.5. Subcontractors. MailUp may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor“).

4. Use Policy

Client shall not, and shall not permit any other person to, access or use the Software or MailUp Materials except as expressly permitted by this Agreement. For purposes of clarity and without limiting the generality of the foregoing, Client shall not, except as this Agreement expressly permits:

  1. Directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to access the source code of the Software or MailUp Materials, or underlying structure, ideas, or algorithms of the Software or any software, documentation, or data related to the Software; modify, translate, or create derivative works based on the Software, except and only to the extent that such activity is expressly permitted by this Agreement; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Software; rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software to any person, including on or in connection with the use of Software for timesharing or service bureau purposes, software as a service, cloud or other technology or service; or otherwise for the benefit of a third party unless specifically authorized by MailUp;
  2. Remove or alter the MailUp’s trademarks, or any trademark, copyright or other proprietary notices, legends, symbols or labels in the Software;
  3. Display or integrate any advertisements on the Software;
  4. Use the Software in connection with sending unsolicited email messages, also known as spamming;
  5. Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others;
  6. Distribute or disseminate any information or materials that are inappropriate, profane, defamatory, obscene, indecent, unlawful or injurious, or contain, transmit or activate any Harmful Code;
  7. Use the Software to upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright, trademark or privacy laws unless Client owns or controls the rights thereto or has received all necessary consent to do the same;
  8. Use any material of information, including images or photographs, which are made available through the Software in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any third party;
  9. Input, upload, transmit or otherwise provide to or through the Software or MailUp Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
  10. Damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Software, MailUp Systems or MailUp’s provision of services to any third party, in whole or in part;
  11. Falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of the Software or other material contained in a file that is uploaded;
  12. Violate any applicable laws or regulations; or
  13. Otherwise access or use the Software or MailUp Materials beyond the scope of the authorization granted under Section 3.

Client shall inform its Users about such non-authorized uses. In the event that MailUp becomes aware of the use of the Software in breach of the above provisions by Client or its Users, MailUp reserves the right to immediately and definitively block access to and use of the Software and/or to terminate this Agreement for breach in accordance with Section 8.3 of this Agreement.

5. Security

5.1. MailUp Systems and Security Obligations. MailUp will employ security measures in accordance with applicable industry practice (“Privacy and Security Policy“).

5.2. Client username and password. Client shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to maintain the confidentiality of its account and password, with respect to both Access Credentials and Application Keys, and Client agrees to notify MailUp promptly of any known unauthorized access or of any reasonably suspected breach of its account’s security. Client shall be liable for losses incurred by MailUp and/or another party due to a third party using Client’s account or password.

6. Source Code Escrow

6.1. Escrow Agreement. If selected by Client, within thirty (30) days MailUp shall establish an escrow account with EscrowTech International, Inc. (the “Escrow Agent”) providing for the deposit of Source Materials into escrow for the benefit of Client as beneficiary thereunder. For this purpose, MailUp, Client and the Escrow Agent will enter into a mutually acceptable escrow agreement and beneficiary enrollment documents to establish such escrow account and name Client as a beneficiary thereunder (collectively, the “Escrow Agreement”). Throughout the Term thereafter, MailUp shall cause the then-current version of the Software to be deposited with the Escrow Agent under the Escrow Agreement on May 1 and November 1 of each calendar year and on such other date as MailUp delivers any custom enhancements or issues any subsequent release of the Software. MailUp shall be responsible to pay directly to the Escrow Agent, the Escrow Agent’s fees associated with such deposits of the Source Materials as are made by MailUp under the Escrow Agreement for Client’s direct benefit. MailUp shall also be responsible for any fees or expenses under the Escrow Agreement to maintain Client’s status as a beneficiary under the Escrow Agreement. Release triggers under the Escrow Agreement shall at all times include the following events: (i) MailUp ceases to pay its debts as they come due (becomes “Insolvent”) or ceases to carry on business; (ii) bankruptcy or similar proceeding of MailUp; and (iii) Unavailability of the Editor for a period of eight  (8) consecutive calendar days that is not attributable to a Force Majeure Event, and MailUp fails to cure such default within two (2) days after receiving written notice of the failure from Client. In no event will a dispute between with the parties with respect to Service Level or the parties’ obligations under this Agreement constitute a triggering event. The Software reaching end of life will not constitute a triggering event as long as there is an available migration or upgrade path available to Client.
If one of the foregoing release triggers occurs and Client elects to exercise its right to access the Source Materials as permitted under the Escrow Agreement, use of the Escrow Materials by Client shall be subject to license grant set forth herein, in accordance with the restrictions defined by Section 3.3. As used in this Agreement the term “Source Materials” shall mean the human-readable code from which a computer can compile or assemble the object code or machine executable version of the Software (including any enhanced or customized versions thereof), together with any documentation in the possession of MailUp which would assist a third party in operating and maintaining the Software.

6.2. Escrow Fee. For the purpose of signing the Escrow Agreement, Client shall pay to MailUp an annual recurring fee available at https://beefree.io/bee-plugin/pricing/ (the “Escrow Fee”). MailUp shall invoice Client for any Escrow Fees separately from the invoicing of the Subscription Fees. Such invoice shall be paid by Client within thirty (30) calendar days from the invoice date.

6.2. Title 11. If, at any time during the Term, MailUp is Insolvent or seeks protection from creditors, the Parties agree that the Software and each portion and component thereof as well as the license rights to them are the subject matter of this Agreement and each of them are agreed to be “intellectual property” as that term is defined and construed under Title 11 U.S.C. Section 101 in effect as of the Effective Date (“Title 11”). This Agreement is further intended to be an executory contract under Title 11 and: (a) Client as a licensee of MailUp’s intellectual property shall be a licensee and shall be afforded all of the protections of a licensee under Section 365(n) of Title 11; and (b) MailUp shall be deemed to be a debtor/licensor under Section 365(n) of Title 11.

7. Client Obligations

7.1. Client Applications and Cooperation. Client shall at all times during the Term: (a) set up, maintain and operate in good repair and in accordance with the Specifications all Client Applications; (b) provide MailUp personnel with such access to Client Applications as is necessary for MailUp for troubleshooting and to provide the Software in accordance with the availability requirement and Specifications; and (c) provide all cooperation and assistance as MailUp may reasonably request to enable MailUp to exercise its rights and perform its obligations under and in connection with this Agreement.

7.2. Effect of Client Failure or Delay. MailUp is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement.

7.3. Corrective Action and Notice. If Client becomes aware of any actual or threatened activity prohibited by Section 4, Client shall, and shall cause its Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Software and MailUp Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify MailUp of any such actual or threatened activity.

8. Effective Date, Term and Termination

8.1. Initial Term. This Agreement will be effective commencing on the Effective Date and will remain in effect for the duration selected by Client (the “Initial Term”) unless and until terminated according to the provisions of this Section 8.

8.2. Renewal. This Agreement will automatically renew (“Renewal”) for additional successive terms having a duration equal to the Initial Term (such successive terms, together with the Initial Term, constitute the “Term”), unless earlier terminated pursuant to this Agreement’s express provisions or Client gives notice of non-renewal by using the “Cancel my subscription” tool (exact wording may change over time), which will be effective at the expiration of the current Term. In consideration of the availability of the Software, Client will be required to pay the Fees for the entire current Term, even if it does not use the Software.

8.3. Termination. In addition to any other express termination right set forth elsewhere in this Agreement,

  1. MailUp may terminate this Agreement by giving written notice to Client prior to, and effective as of, the expiration of the current Term;
  2. MailUp may terminate this Agreement, effective on written notice to Client, if Client: (i) fails to pay any amount when due hereunder, and such failure continues more than seven (7) days after MailUp’s delivery of written notice thereof; or (ii) breaches any of its obligations under 7 (Client Obligations), Section 4 (Use Policy), or Section 21 (Confidential Information);
  3. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
  4. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

8.4. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

  1. all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate;
  2. MailUp shall immediately cease all use of any Client Data or Client’s Confidential Information and (i) at Client’s written request destroy all documents and tangible materials containing, reflecting, incorporating or based on Client Data or Client’s Confidential Information; and (ii) upon Client’s written request, permanently erase all Client Data and Client’s Confidential Information from all systems MailUp directly or indirectly controls, provided that, for clarity, MailUp’s obligations under this Section 8.4(b) do not apply to any Resultant Data;
  3. Client shall immediately cease all use of the Software or MailUp Materials and (i) at MailUp’s written request destroy all documents and tangible materials containing, reflecting, incorporating or based on MailUp’s Confidential Information; and (ii) permanently erase MailUp’s Confidential Information from all systems Client directly or indirectly controls;
  4. notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the receiving party may retain the disclosing party’s Confidential Information solely to the extent and for so long as required by applicable law; (ii) MailUp may also retain Client Data in its backups, archives and disaster recovery systems until such Client Data is deleted in the ordinary course; and (ii) all information and materials described in this Section 8.4(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
  5. MailUp may disable all Client and Users access to the Software and MailUp Materials;
  6. if MailUp terminates this Agreement pursuant to Section 3.3, 8.3(b) or Section 8.3(c), all fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Client shall pay such fees, together with all previously-accrued but not yet paid fees, on receipt of MailUp’s invoice therefor.

9. Fees and Payments

9.1. Fees. Client shall pay the Fees in accordance with this Section 9.

9.2. Subscription Fees. Client shall pay the Subscription Fees for the Initial Term and for any Renewal in the timeframe and in accordance with the methods indicated in the initial online order and any subsequent orders. The payment shall be made in U.S. dollars, by credit card or other payment method acceptable to MailUp. MailUp is hereby authorized to implement a recurring credit card payment of the Subscription Fees by processing an automatic pre-authorized charge of the amount of the Subscription Fees for the use of the Software for the Term, subject to termination which may be carried out by Client in accordance with the procedures and timeframes provided under Section 9..

9.3. Additional User Fees and Additional MSAPI Call Fees. At the end of each Term, Subscription Fees will be adjusted to reflect any increase in the number of Users and MSAPI Calls. Client declares that:

  1. it is aware that for any Additional User and for any Additional MSAPI Call Client shall pay the Additional User Fee and/or Additional MSAPI Call Fee listed at https://beefree.io/bee-plugin/pricing/; Client may at any time access the current number of Users and MSAPI Calls via the Developer Panel.
  2. it is aware that the exact number of Additional Users and/or Additional MSAPI Call may be provided only at the end of the current Term. Therefore, Client authorizes MailUp to automatically charge Client for Additional User Fees and Additional MSAPI Call Fees and debit Client’s credit card (or other payment method) in the following Term.

9.4. Failure to Pay. If upon automatic Renewal of this Agreement the pre-authorized charge were unsuccessful for any reason (merely by way of example and without any limitation: expired credit card or inexistence of the necessary funds), MailUp shall inform Client via electronic mail written notice sent to the email address provided by Client in the Registration Form. Client shall have fourteen (14) calendar days from receipt of such notice to cure the breach. If the breach is not cured within such fourteen (14) calendar day period, MailUp shall have the right to suspend performance of the Software without further notice without incurring any obligation or liability to Client or any other person by reason of such suspension, block access and use of the Software, and to terminate this Agreement pursuant to Section 8.3(b) without prejudice to MailUp’s further rights. The Parties agree that in the event of delay in the payment of the fees, MailUp may charge interest at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. Client shall reimburse MailUp for all reasonable costs incurred by MailUp in collecting any late payments or interest, including attorneys’ fees, court costs and collection agency fees.

9.5. Outstanding Fees. If Client incurs Additional User Fees and/or Additional MSAPI Call Fees higher than $1,000.00 (one thousand/00 USD) at any time during the Term, MailUp reserves the right to process a new payment for the total of the outstanding fees.

9.6. Taxes. All fees and other amounts payable by Client under this Agreement are exclusive of taxes and assessments. Client is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on MailUp’s income.

9.7. No Deductions or Setoffs. All amounts payable to MailUp under this Agreement shall be paid by Client to MailUp in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.

9.8. Fees Increases. MailUp may increase the Fees by providing written notice to Client at least thirty (30) days’ before the commencement date of any Term. The new rates will be applied from the date of renewal of the Agreement and will be kept unchanged at least for the next Term. In the event that Client does not intend to accept such changes, Client must cancel the subscription in accordance with Section 8.2 of this Agreement. In the event of cancellation submitted beyond the aforesaid deadline, the new rates shall be considered accepted by Client and will be legally applied.

10. Availability Guaranty, Service Levels and Support

10.1. Service Level; Availability Guaranty. For free Subscription Plans, MailUp will fulfill service level agreements and provide Availability on a commercially reasonable efforts basis. For paid Subscription Plans, MailUp guarantees that the Editor will be Available 99.5% of the time each calendar month, 24 hours a day, 7 days a week (the “Availability Guaranty”).

10.2. Exclusions. This Editor Availability Guaranty does not cover Unavailability resulting from (i) Scheduled Downtime (as defined below); (ii) factors outside of MailUp’s reasonable control, including, without limitation (a) any Force Majeure Event, (b) issues derived from services that are not directly delivered by MailUp and whose availability is outside of MailUp’s control, including without limitation the availability of an Internet connection at Client’s location,(c) software or hardware problems that are affecting Client’s computers, (d) results of any actions or inactions of User or any third party (other than MailUp’s Subcontractors); and (e) results from any User’s applications, equipment, software or other technology and/or third party equipment, software or other technology not under MailUp’s direct control; (iii) alpha, beta or not otherwise generally available versions of the Software, or (iv) loss of access to the Software that is of little or no significance in the Client’s day-to-day operation of the Editor (collectively, the “Exclusions“).

10.3 Monitoring of Availability. Availability of the Editor is measured by employing both in-house and independent monitoring systems. Independent monitoring systems are selected by MailUp among the highest rated systems available in the marketplace, may change over time, and currently include, but are not limited to, Pingdom AB. Measurements of Software and Editor’s general availability are available at http://status.beefree.io/.

10.4 Scheduled Downtime. MailUp will use commercially reasonable efforts to give Client at least fourteen (14) days prior notice of all scheduled outages of the Software (“Scheduled Downtime“).

10.5. Service Credit. As Client’s sole remedy and MailUp sole liability for failure to achieve the Availability Guaranty, MailUp will issue a credit against future Subscription Fees and any amounts otherwise due by Client (“Service Credit“) if the uptime of the Editor falls below 99.5% in any calendar month, calculated as follows:

Monthly Fees” are calculated as one-twelfth of the Service Fee that would be payable by the Client over a one-year period. No refunds or cash value will be given, provided, however, that availability measured below 95% for more than two months in a row constitutes material breach of this Agreement and the Client may give MailUp notice of immediate termination of this Agreement and MailUp shall refund the applicable Monthly Fee corresponding to the remaining Term. Service Credits may not be transferred or applied to any other MailUp account.

To apply for a Service Credit, Client must submit a request to support@beefree.io within ten (10) days from the time Client becomes eligible to receive the applicable Service Credit. The request must include: (a) “SLA Claim” as the subject of the ticket; (b) the dates and times of Unavailability for which a credit is being claimed; (c) any documentation of the applicable Unavailability. Each Service Credit will be applied to future amounts payable by Client in connection with the applicable MailUp product.

All Unavailability is subject to independent verification in MailUp’s reasonable discretion. Service Credits are the sole remedy for Unavailability of the Editor or the Software or MailUp failure to meet the monthly Availability Guaranty. Client shall not be entitled to any Service Credit in case of failure or delay in submitting a request for Service Credit.

10.6. Support. For free Subscription Plans, MailUp will not provide any direct support to Client, but online manuals and other documentation is available at https://support.beefree.io/ and https://docs.beefree.io/. For paid Subscription Plans, MailUp undertakes to provide technical assistance related to the proper functioning of the Software using one of the following procedures selected and purchased by Client:

  1. Standard Support. MailUp will use commercially reasonable efforts to provide standard support services to Client through: a) online manuals and other documentation available at https://support.beefree.io/ and https://docs.beefree.io/; b) online community available at https://support.beefree.io/hc/communities/public/topics; c) via e-mail by opening a support ticket at support@beefree.io. When a support ticket is opened, MailUp staff will use commercially reasonable efforts to respond to it in a timely manner: a reply to the support ticket is typically provided within 12 (twelve) business hours.
  2. Premium Support. MailUp will provide Client with Premium Support services in accordance with the terms and conditions available at https://beefree.io/bee-plugin/premium-support. For the purpose of receiving Premium Support, Client shall pay to MailUp the recurring fee listed on https://beefree.io/bee-plugin/pricing/ in accordance with Section 9 (“Premium Support Fee“).

11. Representations and Warranties

11.1. Warranties by the Client. The Client represents and warrants that:

  1. It has the full power to enter into and fully perform this Agreement.
  2. Client Software Packages, services, products, materials, contents of the messages, data, and information used by Client in connection with this Agreement and 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.

11.2. Warranties by MailUp. MailUp represents and warrants that:

  1. it is has the full power and authority to enter into and fully perform this Agreement.
  2. it owns or controls all right, title, and interest in and to all Intellectual Property rights therein, necessary to carry out its obligations hereunder and to grant and assign any rights and licenses granted to Client herein.
  3. the Software will perform in a commercially reasonable manner.
  4. the Software will not during the Term of this Agreement, operate in any manner that would violate any applicable law or regulation.

11.3. 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. WITHOUT LIMITING THE FOREGOING, MAILUP MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR MAILUP MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

12. Indemnification

12.1. Client’s Indemnification. Client shall indemnify, defend and hold harmless MailUp and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “MailUp Indemnitee“) from and against any Losses incurred or suffered by such MailUp Indemnitee (1) that would not have been incurred or suffered or requested if (i) Client had fulfilled the obligations undertaken upon entering into this Agreement and (ii) the representations and warranties provided by Client by entering into this Agreement had been truthful, accurate, complete and not misleading; or (2) in connection with any Action by a third party that arise out of or relate to any:

  1. Client Data, including any processing of Client Data by or on behalf of MailUp in accordance with this Agreement;
  2. any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Client or any User, including MailUp’s compliance with any specifications or directions provided by or on behalf of Client or any User to the extent prepared without any contribution by MailUp;
  3. allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or
  4. negligence or more culpable act or omission (including recklessness or willful misconduct) by Client, any User, or any third party on behalf of Client or any User, in connection with this Agreement.

12.2. MailUp’s Indemnification. MailUp shall indemnify, defend and hold harmless Client from and against any and all Losses incurred by such Client arising out of or relating to any claim, suit, action or proceeding (each, an “Action“) by a third party (other than an Affiliate of Client) that Client’s or an User’s use of the Software (excluding Client Software Packages, Client Data and third party materials) in compliance with this Agreement (including the Specifications) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:

  1. access to or use of the Software or MailUp Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in the Specifications or otherwise in writing by MailUp;
  2. modification of the Software or MailUp Materials other than: (i) by or on behalf of MailUp; or (ii) with MailUp’s written approval in accordance with MailUp’s written specification;
  3. failure to timely implement any modifications, upgrades, replacements or enhancements made available to Client by or on behalf of MailUp; or
  4. act, omission or other matter described in Section 12.1(a), Section 12.1(b), Section 12.1(c) or Section 12.1(d), whether or not the same results in any Action against or Losses by any MailUp Indemnitee.

12.3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2, as the case may be. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor shall immediately take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12 except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

12.4. Mitigation. If any of the Software or MailUp Materials are, or in MailUp ‘s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Client’s or any User’s use of the Software or MailUp Materials is enjoined or threatened to be enjoined, MailUp may, at its option and sole cost and expense:

  1. obtain the right for Client to continue to use the Software and MailUp Materials materially as contemplated by this Agreement;
  2. modify or replace the Software and MailUp Materials, in whole or in part, to seek to make the Software and MailUp Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Software and MailUp Materials, as applicable, under this Agreement; or
  3. by written notice to Client, terminate this Agreement and require Client to immediately cease any use of the Software and MailUp Materials

THIS SECTION 12 SETS FORTH CLIENT’S SOLE REMEDIES AND MAILUP’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE AND MAILUP MATERIALS) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.

13. Limitations of Liability

13.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL MAILUP OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SOFTWARE, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13.2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF MAILUP AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED AN AMOUNT EQUAL TO THE FEE PAID BY CLIENT TO MAILUP DURING THE TERM IN WHICH THE DAMAGES FIRST OCCURRED.

14. Improvements

Client recognizes that MailUp is always innovating and finding ways to improve the Software with new features and services. Therefore, Client agrees that the Software may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Software. MailUp will use its reasonable commercial effort to inform Client of any upcoming Software changes and to introduce features that substantially alter the functioning of the Software in a disabled state with the ability for Client to activate them at their leisure.

15. Force Majeure

MailUp and Client may not be deemed in any way liable for the failure to perform this Agreement caused by factors falling outside its reasonable control (a “Force Majeure Event”) including by way of example and without any limitation, acts of God, uprisings, acts of terrorism and war, strikes, labour stoppages or slowdowns or other industrial disturbances, riots, tornadoes, hurricanes, floods, mudslides and landslides fire, earthquake or explosion, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, passage of law or any action taken by a governmental or public authority, or national or regional shortage of adequate power or telecommunications or transportation.

16. Assignment

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 without Client’s consent upon fifteen (15) days prior written notice to Client. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.

17. Ownership of the Software

17.1. Software and MailUp Materials. All right, title and interest in and to the Software and MailUp Materials, including all Intellectual Property Rights therein, are and will remain with MailUp or MailUp licensor’s, as applicable. Client has no right, license or authorization with respect to any of the Software or MailUp Materials except as expressly set forth in Section 3.1 and 3.2, in each case subject to Section 4. All other rights in and to the Software and MailUp Materials are expressly reserved by MailUp and the respective third-party licensors. In furtherance of the foregoing, Client hereby unconditionally and irrevocably grants to MailUp an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

17.2. Client Data. As between Client and MailUp, Client is and will remain the sole and exclusive owner of all right, title and interest in and to all Client Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 17.3.

17.3. Consent to Use Client Data. Client hereby irrevocably grants all such rights and permissions in or relating to Client Data: (a) to MailUp, its Subcontractors and the MailUp personnel as are necessary or useful to perform the Software; and (b) to MailUp as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.

18. Data Processing Addendum

To the extent that MailUp processes any Personal Data (as defined in the DPA) that is subject to the GDPR (as defined in the DPA), on behalf of Client, in the provision of the Software, the terms of the data processing addendum available at https://beefree.io/wp-content/uploads/2018/11/20180619-BEE-Plugin-Data-Processing-Addendum-v.-1.0-Final.pdf (“Data Processing Addendum” or “DPA“), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA, when you are the data exporter, your agreeing to this Agreement shall be treated as signing of the DPA, including, without limitation, the Standard Contractual Clauses and their Appendices .

19. Tax Costs

Any tax cost deriving from the performance of this Agreement, including taxes for advertising activities, shall be borne by Client.

20. Notices

Unless otherwise provided in this Agreement, any notice or communication under this Agreement shall be in writing, and shall be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier; (c) when sent, if by e-mail, with confirmation of transmission and shall be sent to the other party at the addresses specified below:

If to MailUp:

MailUp, Inc.
1111 Broadway, Suite 300,
Oakland, CA 94607 (USA)
Email: support@beefree.io;

If to Client: to the 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.

21. Confidential Information

21.1. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, clients, 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, client 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.

21.2. 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) the receiving party can demonstrate by written or other documentary records is independently developed by the receiving party without reference to or use of any Confidential Information.

22. Survival

The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 4 (Use Policy), Section 8.4 (Effect of Expiration or Termination), Section 9 (Fee and Payments), Section 11 (Representations and Warranties), Section 12 (Indemnification),  Section 13 (Limitations of Liability), Section 17 (Ownership of the Software), Section 21 (Confidential Information), Section 23 (Ownership of Resultant Data), Section 26 (Miscellaneous), Section 27 (Governing Law, Venue and Jurisdiction) and this Section 22.

23. Ownership of Resultant Data

MailUp will derive aggregated data, information, and other content by or through the Software from processing Client Data, which is sufficiently different from such Client Data and cannot be identified from the inspection, analysis or further processing of such data, information, or content (the “Resultant Data”).  MailUp will assure the full anonymization of the Resultant Data to avoid any processing and diffusion or communication of personal data of Client.  Client authorizes MailUp to use the Resultant Data in order to contribute to the effective improvement of the functioning of the Software and the production of statistical information that may be published by MailUp in aggregate form. MailUp reserves the right at all times to disclose the Resultant Data as it deems necessary to satisfy any applicable law, regulation, legal process or governmental request.

24. Validity of amendments and/or supplements

MailUp may unilaterally amend this Agreement. All amendments will be effective from the moment in which the new version of this Agreement is accepted on line by Client.  Any subsequent use of the Software shall be deemed an acceptance by Client of the same amendments and/or supplements.

25. Banner and links

In case of a free Subscription Plan, Client acknowledges and accepts that MailUp may display in the interface of the Software:

26. Miscellaneous

26.1. Entire agreement. This Agreement, including the external links which constitute an integral part hereof, abrogates and supersedes all previous agreements, understandings and negotiations, whether written or oral, between the Parties concerning the subject matter of this Agreement.

26.2. Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

26.3. Severability. 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.

26.4. Headings. 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.

26.5. No relationship. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

27. 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 Superior 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.