BEE PRO TERMS OF SERVICE
This agreement (the “Agreement”) is entered into between MailUp, Inc. a Delaware corporation with offices located at 450 Townsend Street, San Francisco, CA 94107 (“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 (the “Client”).
MailUp and the Client individually also the “Party”, and collectively, the “Parties”.
I. MailUp is a company specialized in the digital marketing and digital communications sector;
II. Client wishes to procure from MailUp the software services described herein, and MailUp wishes to provide such services to Client, each on the terms and conditions set forth in this Agreement.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS
1. Recital, exhibit and external links
The recitals, the exhibit and the external links to the Agreement constitute an integral and substantive part hereof.
When used in this Agreement, the following terms in capital letters shall have the meaning stated in this section.
means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Hosted Services.
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.
means these terms and conditions.
means each of the professional users authorized to use the Services pursuant to Section 3.1 and the other terms and conditions of this Agreement, and solely in connection with Authorized User professional business and for purposes related thereto.
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 from Client or an Authorized User by or through the Services.
means the Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third-party services.
means documentation provided by MailUp in electronic format to the Client.
means the date this Agreement comes into effect, as notified by MailUp to the Client with an email sent to the email address provided by the Client in the Registration Form and that the Client declares to periodically check.
a periodic fee that the Client undertakes to pay according to the specific Subscription Plan chosen by the Client, including Subscription Fees and Hosting Fees.
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 Authorized User from accessing or using the Services or MailUp Systems as intended by this Agreement. Harmful Code does not include any MailUp Disabling Device.
images that are included in the content created with the Service and that are hosted and delivered by the Service at the time the content is viewed.
Portion of the Fees calculated based on the amount of data that is transferred when Hosted Images are delivered at the time the content is viewed. Hosting Fees are calculated based on the Image Hosting Fees pricing table available on the BEE Pro Web site at https://beefree.io/pro/. There are no Hosting Fees associated with Local Images.
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.
images that are included in the content created with the Service and that are not hosted by the Service, but rather included in a compressed file when the content is downloaded by the User, and then hosted by the User.
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.
means the MailUp verbal and design trademark, the BEE Pro verbal and design trademark and derivatives thereof. MailUp is a registered trademark.
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 Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of MailUp or its designee.
means the Service 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 Services, including any third party materials licensed to MailUp, or otherwise comprise or relate to the Services 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 Services, but do not include Client Data.
means the information technology infrastructure used by or on behalf of MailUp in performing the Services, 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.
means any use of the Services by an Authorized User for the benefit of Client solely in or for Client’s internal business operations / solely for the purpose of digital marketing or digital communications.
means the specific Software subscription plan chosen by the Client among the different subscription plans available at https://beefree.io.
means the registration form available at https://pro.beefree.io/signup/.
Is defined in Section 8.2.
is defined in Section 22.
has the meaning set forth in Section 3.1.
means the BEE Pro software application, including new versions, modifications, enhancements, improvements, updates, revisions, additions, derivative works, documentation and related material, that MailUp provides remote access to and use of as part of the Services.
the per-Authorized User amount for the selected Subscription Plan, as listed on the pricing page on the BEE Pro Web site at http://beefree.io/pro/, times the number of Authorized Users active during the Billing Period immediately prior to Renewal.
is defined in Section 8.1.
the sum of Subscription Fees and Hosting Fees, computed and charged to the Client’s payment account at the time of Renewal.
means an initial free trial period of fifteen (15) days during which the Client may verify the functionalities of the Service Software and during which the Client may withdraw at any time, without any commitment or cost.
means https://beefree.io, including any third-level-domain and sub-domains.
Subject to and conditioned on Client’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, during the Term, MailUp shall use commercially reasonable efforts to provide to Client and its Authorized Users the services identified in the Subscription Form and this Agreement (collectively, the “Services“) in accordance with the specifications set forth therein (“Specifications”) and the terms and conditions hereof, including to host, manage, operate and maintain the Service Software for remote electronic access and use by Client and its Authorized Users (“Hosted Services“) in substantial conformity with the Specifications 24 hours per day, seven days per week every day of the year, except for:
- Scheduled Downtime in accordance with Section 10.2;
- Service downtime or degradation due to a Force Majeure Event;
- any other circumstances beyond MailUp’s reasonable control, including Client’s or any Authorized User’s use of Third Party Materials, misuse of the Hosted Services, use of the Services other than in compliance with the express terms of this Agreement and the Specifications, or unavailability of cloud or network services; and
- any suspension or termination of Client’s or any Authorized Users’ access to or use of the Hosted Services as permitted by this Agreement.
3.2 Service and System Control.
Except as otherwise expressly provided in this Agreement, as between the Parties: (a) MailUp has and will retain sole control over the operation, provision, maintenance and management of the Services and MailUp Materials, including the: (i) MailUp Systems; (ii) location(s) where any of the Services are performed; (iii) selection, deployment, modification and replacement of the Service Software; and (iv) performance of Service maintenance, upgrades, corrections and repairs; and (b) Client has and will retain sole responsibility for all access to and use of the Services and MailUp Materials by any Person, including any: (i) information, instructions or materials provided by any of them to the Services or MailUp; (ii) results obtained from any use of the Services or MailUp Materials; and (iii) conclusions, decisions or actions based on such use.
MailUp reserves the right, in its sole discretion, to make any changes to the Services and MailUp Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of MailUp’s services to its Clients, (ii) the competitive strength of or market for MailUp’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
MailUp may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor“).
3.5 Suspension or Termination of Services.
MailUp may, directly or indirectly, and by use of any MailUp Disabling Device or any other lawful means, suspend, terminate or otherwise deny Client’s, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or MailUp Materials, without incurring any resulting obligation or liability, if: (a) MailUp receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires MailUp to do so; or (b) MailUp believes, in its sole discretion, that: (i) Client or any Authorized User has failed to comply with, any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Client or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 3.5 does not limit any of MailUp’s other rights or remedies, whether at law, in equity or under this Agreement.
Subject to and conditioned on Client’s payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, MailUp hereby authorizes Client to access and use, during the Term, the Services and such MailUp Materials as MailUp may supply or make available to Client solely for the Permitted Use by and through Authorized Users in accordance with the Specifications and the conditions and limitations set forth in this Agreement. This authorization is non-exclusive and non-transferable.
4.2 Reservation of Rights.
Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, or MailUp Materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services and the MailUp Materials are and will remain with MailUp and its licensors.
5. Client Obligations.
5.1 Client Systems 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 Systems on or through which the Services are accessed or used; (b) provide MailUp personnel with such access to Client Systems as is necessary for MailUp for troubleshooting and to perform the Services 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.
5.2 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.
5.3 Corrective Action and Notice.
If Client becomes aware of any actual or threatened activity prohibited by Section 6, Client shall, and shall cause its Authorized 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 Services 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.
6. Use Policy
The Client shall not, and shall not permit any other person to, access or use the Services 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:
- Directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to access the source code of the MailUp Services or 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;
- Bypass or breach any security device or protection used by the Services or MailUp Materials or access or use the Services or MailUp Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
- Remove or alter the MailUp’s trademarks, or any trademark, copyright or other proprietary notices, legends, symbols or labels in the Software;
- Display or integrate any advertisements on the Software;
- Use the Software in connection with sending unsolicited email messages, also known as spamming. Use of the Services for sending bulk or transactional email is prohibited. The email sending feature included in the Services is intended strictly and only for the purpose of sending a test message. Test sending is limited in the number of messages that can be sent at the same time and within a period of time (such limits may change). Any attempt to use the Services for the purpose of sending solicited or unsolicited bulk or transactional email will result in immediate termination of this Agreement;
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others;
- Distribute or disseminate any information or materials that are inappropriate, profane, defamatory, obscene, indecent unlawful or injurious unlawful or injurious, or contain, transmit or activate any Harmful Code;
- 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 the Client owns or controls the rights thereto or has received all necessary consent to do the same;
- 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;
- input, upload, transmit or otherwise provide to or through the Services or MailUp Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
- damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, MailUp Systems or MailUp’s provision of services to any third party, in whole or in part;
- 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;
- Violate any applicable laws or regulations; or
- otherwise access or use the Services or MailUp Materials beyond the scope of the authorization granted under Section 4.1.
7.1 MailUp Systems and Security Obligations.
MailUp will employ security measures in accordance with applicable industry practice (“Privacy and Security Policy“).
7.2 Client username and password.
The 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, and the Client agrees to notify MailUp promptly of any known unauthorized access or of any reasonably suspected breach of its account’s security. The Client shall be liable for losses incurred by MailUp and/or another party due to a third party using the Client’s account or password.
8. Effective Date, Term, Termination
8.1 Initial Term.
This Agreement will be effective commencing on the Effective Date and will remain in effect for the duration of one Billing Period as selected by the Client (the “Initial Term”) unless and until terminated according to the provisions of this Section 8.
This Agreement will automatically renew (“Renewal”) for additional successive terms having a duration equal to the Billing Period (such successive terms, together with the Initial Term, the “Term”), unless earlier terminated pursuant to this Agreement’s express provisions or the Client gives notice of non-renewal by using the “Cancel my subscription” tool, which will be effective at the expiration of the current Billing Period. In consideration of the availability of the Services, the Client will be required to pay the Fees for the entire current Billing Period, even if it does not use the service.
In addition to any other express termination right set forth elsewhere in this Agreement,
- MailUp may terminate this Agreement by giving written notice to the Client prior to, and effective as of, the expiration of the current Billing Period;
- 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 5 (Client Obligations), Section 6 (Use Policy), or Section 20 (Confidential Information);
- 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
- 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:
- all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate;
- 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 the 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;
- Client shall immediately cease all use of any Services 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;
- 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;
- MailUp may disable all Client and Authorized User access to the Hosted Services and MailUp Materials;
- if MailUp terminates this Agreement pursuant to Section 3.5, 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. Fee and Payments
The Client shall pay the Total Fees calculated as determined based on the Subscription Plan chosen by the Client in accordance with this Section 9.
Client shall pay the Fees for the Initial Term no later than the Effective Date. Client shall pay the Fees for any Renewal on or prior the Renewal date of each Billing Period in advance. The payment shall be made by credit card in U.S. dollars. MailUp is hereby authorized to implement a recurring credit card payment of the Fees by processing an automatic pre-authorized charge of the amount of the Fees for the use of the Software for the Billing Period, subject to termination which may be effected by the Client in accordance with the procedures and timeframes provided under Section 8. The Fees will be adjusted to reflect any increase in the number of Authorized Users and any Hosting Fees in the following Billing Period. No Fees will be credited at the end of a Billing Period if the number of Authorized Users decreases.
9.3 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 seven (7) calendar days from receipt of such notice to cure the breach. If the breach is not cured within such seven (7) calendar day period, MailUp shall have the right to suspend performance of the Services 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.
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.
9.5 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.
9.6 Fees Increases.
MailUp may increase the Fees by providing written notice to Client at least thirty (30) days’ before the commencement date of any Billing Period.
10. Service Levels and Support
10.1 Service Levels.
Subject to the terms and conditions of this Agreement, MailUp will use commercially reasonable efforts to make the Hosted Services Available at least ninety-nine percent (99.0%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period“), excluding unavailability as a result of any of the Exceptions described below in this Section 10 (the “Availability Requirement“). “Available” means the Hosted Services are available for access and use by Client and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Hosted Services will be considered un-Available in connection with any failure to meet the Availability Requirement or impaired ability of Client or its Authorized Users to access or use the Hosted Services that is due, in whole or in part, to any: (a) act or omission by Client or any Authorized User, or using Client’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) Client Failure; (c) Client’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by MailUp pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension or termination of the Services pursuant to Section 3.6.
10.2 Scheduled Downtime.
MailUp will use commercially reasonable efforts to give Client at least five (5) days prior notice of all scheduled outages of the Hosted Services (“Scheduled Downtime“).
10.3 Service Support.
MailUp will use its best efforts to provide standard support services to the Client (“Support Services”) in accordance with the MailUp best practices in effect from time to time through: a) online manuals and other documentation available at http://help.beefree.io; MailUp may amend such manuals and other documentation from time to time in its sole discretion; b) online community available at http://help.beefree.io/hc/communities/public/topics.
10.4 Data Backup.
The Services do not replace the need for Client to maintain regular data backups or redundant data archives. MAILUP HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CLIENT DATA.
11. Representations and Warranties
11.1 Warranties by the Client.
The Client represents and warrants that:
- It has the full power to enter into and fully perform this Agreement.
- Client’s 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:
- it is has the full power and authority to enter into and fully perform this Agreement.
- 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.
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.
12.1 Client’s Indemnification.
The 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) the Client had fulfilled 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; or (2) in connection with any Action by a third party that arise out of or relate to any:
- Client Data, including any processing of Client Data by or on behalf of MailUp in accordance with this Agreement;
- any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Client or any Authorized User, including MailUp’s compliance with any specifications or directions provided by or on behalf of Client or any Authorized User to the extent prepared without any contribution by MailUp;
- allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or
- negligence or more culpable act or omission (including recklessness or willful misconduct) by Client, any Authorized User, or any third party on behalf of Client or any Authorized 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 Authorized User’s use of the Services (excluding 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:
- access to or use of the Services 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;
- modification of the Services 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;
- failure to timely implement any modifications, upgrades, replacements or enhancements made available to Client by or on behalf of MailUp; or
- 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.
If any of the Services 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 Authorized User’s use of the Services or MailUp Materials is enjoined or threatened to be enjoined, MailUp may, at its option and sole cost and expense:
- obtain the right for Client to continue to use the Services and MailUp Materials materially as contemplated by this Agreement;
- modify or replace the Services and MailUp Materials, in whole or in part, to seek to make the Services 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 Services and MailUp Materials, as applicable, under this Agreement; or
- by written notice to Client, terminate this Agreement and require Client to immediately cease any use of the Services 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 SERVICES 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 SERVICES, (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 THE CLIENT TO MAILUP DURING THE TERM IN WHICH THE DAMAGES FIRST OCCURRED.
The Client recognizes that MailUp is always innovating and finding ways to improve the Software with new features and services. Therefore, the 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.
15. Force Majeure
MailUp 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, labor 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.
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 without Client’s consent upon fifteen (15) days prior written notice to the 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 Services and MailUp Materials.
All right, title and interest in and to the Services 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 Services or MailUp Materials except as expressly set forth in Section 4.1, in each case subject to Section 5. All other rights in and to the Services 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 Services; and (b) to MailUp as are necessary or useful to enforce this Agreement and exercise its rights and perform its hereunder.
18. Tax Costs
Any tax cost deriving from the performance of this Agreement, including taxes for advertising activities, shall be borne by the Client.
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:
450 Townsend Street,
San Francisco, CA 94107 (USA)
Email: firstname.lastname@example.org ;
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.
20. Confidential Information
20.1 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.
20.2 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.
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 6 (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 20 (Confidential Information), Section 22 (Ownership of Resultant Data), Section 26 (Miscellaneous), Section 27 (Governing Law, Venue and Jurisdiction) and this Section 21.
22. Ownership of Resultant Data
MailUp will derive aggregated data, information, and other content by or through the Services from processing Customer Data, which is sufficiently different from such Customer 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 the 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.
23. Storing and cancellation of the Client’s data
MailUp shall not (i) transfer or make available to third parties the contents of the messages and the addresses of the recipients of the messages sent by the Client through the Software, whether in whole or in part, temporarily or permanently; (ii) use the same in any manner whatsoever except for statistical purposes and to improve the Software; (iii) keep a copy of the same, except the copy that is essential for the functioning of the Software and as permitted by applicable law.
Upon the expiration of a twelve (12) month period from the date of mailing, MailUp may, but will not be required to, permanently erase all the recipient addresses and content stored on behalf of the Client.
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 the Client. Any subsequent use of the Software shall be deemed an acceptance by the Client of the same amendments and/or supplements.
The Client hereby acknowledges and accepts that MailUp can use its name and logo in presentations, marketing materials, client lists and financial reports.
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.
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.
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.
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.