BEE Pro – Terms of service
This agreement (hereinafter, the “Agreement”) is entered between MailUp, Inc. (hereinafter, “MailUp”), a Delaware corporation with offices located at 560 Mission St, Suite 1314 – San Francisco, CA 94105, acting for and on behalf of itself and each of its Affiliates, and the Client identified with the information provided by completing the relevant personal information form (hereinafter, the “Client”).
MailUp and the Client individually, the “Party”, and collectively, the “Parties”.
- MailUp is a company specialized in the digital marketing and digital communications sector;
- MailUp has developed a software called BEE Pro, which is an online email editor that makes it easy to create, save and edit an email message that can be used to send a company newsletter, announce a new product or promote a sale. Once the message has been created, it can be previewed, tested, downloaded or sent it with MailUp’s email marketing platform (the “MailUp Platform”), which is described and can be accessed on the MailUp web site located at www.mailup.com. The BEE Pro software, including modifications, enhancements, improvements, updates, additions, derivative works, source code, object code compiled therefrom, documentation and related material, is referred to herein as the “Software”.
- The Software is an instrument reserved to professional users and the Client undertakes to use it exclusively in connection with its professional business and for purposes related to it.
In consideration of the foregoing recitals, the Parties agree and stipulate the following Agreement for the Non-Exclusive use of the Software.
The recitals, the definitions and the external links to the Agreement, constitute an integral and substantive part hereof.
- 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 documentation provided by MailUp in electronic format to the Client.
- Effective Date
- means the date notified by MailUp to the Client with an email sent to the email address provided by the Client in the Register Form and that the Client declares to periodically check.
- a periodic fee that the Client undertakes to pay in advance according to the specific Plan.
- 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.
- Logo and Brand
- means the MailUp® logo, the BEE Pro logo, and the BEE Pro icons and derivatives thereof.
- MailUp Platform
- an on-line digital platform available at www.mailup.com
- means the different Software subscription plan chosen by the Client and available at http://beefree.io
- Registration Form
- means the registration form available at https://pro.beefree.io/signup/
- means the BEE Pro software, including modifications, enhancements, improvements, updates, additions, derivative works, source code, object code compiled therefrom, documentation and related material.
- means a fixed duration equal to 1 (one) month during which this Agreement will be in effect.
- means an initial free trial period of 15 (fifteen) days during which the Client may verify the functionalities of the Software and during which the Client may withdraw at any time, without any commitment or cost.
- means http://beefree.io, including any third-level-domain and sub-domains.
Subject to the Client’s acceptance of and compliance with this Agreement and, where required, with the payment requirements for the Software, MailUp hereby grants the Client a limited, non-exclusive, non-transferable, non-sublicenseable, revocable right and license for the use of the Software. MailUp grants such license during the Term of this Agreement and in accordance with the terms and conditions of this Agreement.
The Client is aware and expressly accepts that the Software is an instrument reserved to professional users, and therefore this Agreement is not subject to the legal framework applicable to agreements with consumers. In any case, the Client can benefit from an initial free trial period of 15 (fifteen) days during which it may verify the functioning of the Software and during which it may withdraw at any time, without any commitment or cost (the“Trial”).
3. Use Policy
The Client agrees when using the Software will not:
- Directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, 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; use Software for timesharing or service bureau purposes or otherwise for the benefit of a third party unless specifically authorized by MailUp.
- Remove or alter any trademark, logo, 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;
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others;
- Distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information;
- 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 or trademark laws (or by rights of privacy or publicity) unless the Client owns or controls the rights thereto or have 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;
- Send files that contains viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer of property of another;
- 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.
Although MailUp has not the obligation to monitor the Client’s use of the Software, in the event that MailUp becomes aware about the use of the Software in contrast with the above cases by the Client, MailUp reserves the right to immediately and definitively block access to and use of the Software and/or to terminate this Agreement due to breach in accordance with article 7 of this Agreement.
If the Client is required to set up an account in order to use the Software, the Client must maintain the confidentiality of its account and password, and the Client agrees to notify MailUp promptly of any known unauthorized access or of any reasonably suspected breach of its account’s security. The Client may be held liable for losses incurred by MailUp and/or another party due to a third party using the Client’s account or password.
4. Effective Date, Term and Cancellation of the Agreement
This Agreement will be effective commencing on the Effective Date and continuing indefinitely thereafter unless and until terminated according to the provisions of this Section 4. The Agreement will automatically renew for additional terms of 1 (one) month each (the “Term”), in the absence of cancellation which the Client may exercise until the expiry date of the Agreement by using the “Cancel my subscription” tool. In the event of cancellation submitted beyond the above-mentioned essential deadline, such cancellation will not be effective and the Client will have to pay the entire fee for the subsequent period, even if it does not use the service, in consideration of the availability of the Software. It is agreed that if the Client intends to cancel its subscription prior to the conclusion of the pre-selected period, it will be required to pay the Fee for the entire Term.
5. Fee and Payments
In order to make available the Software and for its use, the Client undertakes to pay a periodic fee in advance according to the specific Plan (the “Fee”). The payment shall be made by credit card and in U.S. dollars. A recurring payment method will be activated which will entail, on the date of renewal, an automatic pre-authorized charge of the amount of the Fee for the use of the Software for a period of the same duration, subject to cancellation which may be effected by the Client in accordance with the procedures and timeframes provided under article 4.
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 material breach. If the material breach is not cured within such seven (7) calendar day period, MailUp shall have the right to block the use of the Software. If the material breach is not cured within ninety (90) calendar days from receipt of such notice, MailUp shall have the right to block access and use of the Software, and to terminate this Agreement without prejudice to MailUp’s right to the collection and/or definitive withholding of the Fees for the entire Term. The Parties agree that in the event of delay in the payment of the above-mentioned fee, shall accrue an interest at a rate of 1 ½% per month, or the highest rate allowed by applicable law, whichever is lower.
Unless otherwise agreed in writing, MailUp may increase the Fee upon 30 days’ notice in writing to the Client, such increase to take affect from the commencement date of the renewal Term following the expiry of the notice. If the Client is unhappy with the increase, the Client may cancel its subscription in accordance with the provision of article 4.
6. Service and Support
MailUp guarantees that the Software will be available 99% of the time, 24 hours a day, 365 days a year. This Software availability guarantee does not cover services that are not directly delivered by MailUp and whose availability is outside of MailUp’s control: these include the availability of an Internet connection at the Client’s location, software or hardware problems that are affecting the Client’s computers, and others. The 99% uptime calculation does not include maintenance windows that are scheduled to occur at certain times, and are communicated to all Clients before they occur.
MailUp will provide support to the Client through: a) online manuals and other documentation available athttp://help.beefree.io; b) online community available at http://help.beefree.io/hc/communities/public/topics; c) via e-mail by opening a support ticket at email@example.com. When a support ticket is opened, MailUp staff will use its best efforts to respond to it in a timely manner.
- For breach of essential obligation.
- This Agreement may be terminated by MailUp by simple written notice which may be sent by email in the event of breach of the essential obligations provided under articles 2 (License); 3 (Use Policy), 4 (Fee And Payments); 8 (Warranties); 12 (Assignment) and if the Client is put into liquidation or admitted to insolvency proceedings. The cessation of the Agreement, in the situations referred to above, will take place automatically by law upon receipt of the communication through which MailUp declares its intention to avail itself of the express termination clause. MailUp in any case shall retain the right to demand payment of the Fee for the entire Term and/or to withhold it in its entirety, even if such services have not been completely used.
- For mutual Agreement.
- This Agreement may be terminated by the written consent of both Parties.
- 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.
- 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.
EXCEPT FOR THE FOREGOING, THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND CLIENT’S USE OF THE SOFTWARE IS AT ITS OWN RISK. MAILUP DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. MAILUP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.
- Client’s liability.
- The Client undertakes to indemnify and hold harmless MailUp from and against all damages, losses, liabilities, costs, charges and expenses, including any legal fees and expenses, that may be incurred or suffered by MailUp or for which the latter received a payment request, that would not have been incurred or suffered or requested if (i) the Client had fulfill the obligations undertaken upon entering into this Agreement and (ii) the representations and warranties provided by the Client by entering into this Agreement had been truthful, accurate, complete and not misleading.
- MailUp’s liability.
- MailUp shall not be liable for any damage, liability or loss resulting from a cause over which such entities do not have direct control, including but not limited to the failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorized access or theft.
- Maximum Liability.
- EXCEPT IN CASES OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, MAILUP’S LIABILITY FOR BREACH UNDER THIS AGREEMENT MAY NOT, UNDER ANY CIRCUMSTANCES, EXCEED AN AMOUNT EQUAL TO 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.
11. 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 or force majeure events or random chance such as, by way of example and without any limitation, uprisings, acts of terrorism and war, strikes, riots, tornadoes, hurricanes, floods, mudslides and landslides.
The Client may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of MailUp. Any attempted assignment or delegation without such consent will be void. MailUp may assign this Agreement in whole or part. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
13. Ownership of the Software
MailUp is the sole and exclusive owner of all rights and interests related to the Software and any Intellectual Property related to the same, including developments that may derive from the same. MailUp owns the Website, the Software and the information contained therein. The unauthorized copying and dissemination of the same in breach of the Intellectual Property rights are prohibited.
14. 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 which a Party is required or authorised by this Agreement to serve on another Party shall be sufficiently served if sent to the other party at the addresses specified below:
- If to MailUp:
- 560 Mission ST, suite 1300, San Francisco, CA 94105;
- If to Client:
- to the email address provided by Client in the Registration Form.
The Parties hereby agree that: (a) words in electronic form shall be deemed to be “writing” for the purposes of all applicable legislation where “writing” is required; and (b) electronic evidence shall be admissible in any court or other quasi-judicial proceedings between the Parties.
16. Confidential Information
Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Confidential Information includes, without limitation, trade secrets, ideas, processes, formulae, computer software (including source code), algorithms, data, data structures, scripts, applications, programming interfaces, protocols, know-how, copyrightable material, improvements, inventions (whether or not patentable), techniques, strategies, business plans, product development plans, timetables, forecasts, customer and supplier lists, product and/or service designs, specifications and schematics, product and/or service costs, product and/or service prices, product and/or service names, financial information, employee information, marketing plans, business opportunities, research activities and results, market research activities and results, and development activities and results. Each party shall not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and shall take reasonable precautions to protect the confidentiality of such information.
Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
The following provisions will survive any expiration or termination of the Agreement: articles 5 (Fee and Payments); 8 (Warranties); 9 (Liability); 13 (Ownership of the Software); 14 (Tax Costs); 16 (Confidential Information); 22 (Governing Law, Venue and Jurisdiction).
18. Ownership of the data related to the Client’s use of the Software
As agreed between the Parties, MailUp is authorized to process and store for statistical, legal and quality analysis all data deriving from Client’s use of the Software. MailUp has the right to use and diffuse, only in aggregate form, the results of these analyses deriving from Client’s use of the Software. MailUp, as owner of these aggregated data, will take care to assure the full anonymization of the analysed data to avoid any processing and diffusion or communication of personal data of the Client. On its part the Client expressly authorizes MailUp to use the above mentioned data in order to contribute to the effective improvement of the functioning of the Software or to allow the production of statistical information that may be published by MailUp in aggregate form. MailUp reserves the right at all times to disclose any information as it deems necessary to satisfy any applicable law, regulation, legal process or governmental request.
19. Storing and cancellation of the Client’s data
MailUp undertakes not to 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; not to use the same in any manner whatsoever except for statistical purposes and to improve the Software; not to keep a copy of the same, except the copy that is essential for the functioning of the Software and in accordance with the applicable legal framework.
Upon the expiry of 12 (twelve) months from the date of mailing, MailUp will cancel all the recipient addresses and content stored on behalf of the Client.
20. Validity of amendments and/or supplements
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 and concerning the subject matter of this Agreement.
The fact that either of the Parties does not enforce in a timely manner its rights arising under one or more clauses hereof may not be deemed a general and tacit waiver of the rights and duties provided under the clause, nor may it preclude such Party from later demanding the exact and rigorous performance of each and every contractual clause.
If one or more of the clauses of this Agreement is declared null and void or unenforceable by the competent court of law, the remaining clauses of this Agreement shall continue to be valid and effective between the Parties, unless such clause constituted a determinant reason for the conclusion of this Agreement.
The headings contained in this Agreement or in any exhibit or schedule hereto, or linked document, as applicable, are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
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.
22. Governing Law, Venue and Jurisdiction
This Agreement shall be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State. Each party hereto irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of California, San Francisco County, or (b) the United States District Court for the Northern District of California, for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby or thereby. Each of Client and MailUp agrees to commence any such action, suit or proceeding either in the United States District Court for the Northern District of California or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Superior Court of the State of California, San Francisco County. Each of Client and MailUp further agrees that service of any process, summons, notice or documents by U.S. registered mail to such party’s respective address set forth above shall be effective service of process for any action, suit or proceeding in California with respect to any maters to which it has submitted to jurisdiction in this Section. Each of Client and MailUp irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby and thereby in (i) the Supreme Court of the State of California, San Francisco County, or (ii) the United States District Court for the Northern District of California, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.