To use the Services, You must: (i) if a natural person, be at least 18 years old; (ii) be legally able to enter into contracts on Your behalf; (iii) agree to and comply with terms of this Agreement; and (iv) complete an order by either: (A) completing an automated order process found on the Site; or (B) executing a manual order provided by Exchange Mail (each, an “Order”). The effective date of this Agreement will be the earlier of the date You complete an Order, or access or use the Services (the “Effective Date”).
PLEASE CAREFULLY READ THIS AGREEMENT. BY SUBMITTING AN ORDER, OR ACCESSING OR USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT AND MEET ALL OF THE ELIGIBILITY REQUIREMENTS IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET ALL OF THE ELIGIBILITY REQUIREMENTS IN THIS AGREEMENT, Exchange Mail DOES NOT GRANT YOU PERMISSION TO, AND YOU MUST NOT, ACCESS OR USE THE SITE OR THE SERVICES.
- Definitions. The terms used in this Agreement will have the definitions provided in this Agreement. If not defined herein, the terms will have their plain English meaning as commonly understood in the United States of America.
- Orders. An Order is required for any free use of the Services (such as a free subscription or a trial subscription, each a “Free Subscription”) and for any paid use of the Services (a “Paid Subscription”). In connection with any Order, You must provide Exchange Mail with true, accurate, complete, up-to-date contact information, and remit payment as specified in the applicable Order. All Orders completed by You will be governed by the terms of this Agreement. If the terms of this Agreement or any of the Policies conflict with Your Order, the specific terms of Your Order will govern but only with respect to the use of the Services specified in the applicable Order.
- Access. After You have completed an Order, Exchange Mail may grant you a unique account (an “Account”). In connection with the Account, You may be provided with one or more unique user identifiers and passwords (each, an “Account ID”). Each Account ID is personal in nature and may only be used by You, or if You are an organization only by Your designated employees or contractors or clients who are contractually required to comply with the terms of this Agreement (such individual, as applicable, the “User” of the Account). You are solely responsible for all use of the Services by each User (and anyone who accesses the Services through Your Account, other than Exchange Mail employees and contractors) and for compliance by each such User or other person with the terms of this Agreement. You will ensure the security and confidentiality of each Account ID and will notify Exchange Mail immediately if any Account ID is lost, stolen or otherwise compromised. You acknowledge that You are fully responsible for all costs, fees (including, without limitation, attorneys and professional fees), liabilities and damages incurred through use of each Account ID. You also acknowledge that any Services ordered or transactions completed through any Account or under any Account ID will be deemed to have been authorized and lawfully completed by You. In no event will Exchange Mail be liable for the foregoing obligations or the failure by You to fulfill such obligations. You, at Your own expense, will be solely responsible for procuring, installing and maintaining any hardware, software, or other equipment as may be necessary for You and each User to connect to, access, and use the Services or the Site.
- Term. This Agreement is effective beginning on the Effective Date and will continue for the period specified in the Order (the “Initial Term”). In the case of a Free Subscription, this Agreement and all of Your rights to use the Services will expire at the end of the Term unless: (i) You complete another Order; or (ii) Exchange Mail previously terminated Your Account, which it may do at any time. In the case of a Paid Subscription, the Term, including all associated payment obligations, will automatically renew for successive periods equal in length to the Initial Term (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party sends the other written notice of its intent not to renew the Term not later than thirty (30) days prior to the end of the current Term. In the case of a Paid Subscription with an Initial Term of more than one (1) year, each Renewal Term length will be one (1) year.
- Modifications to this Agreement. Exchange Mail may modify this Agreement and any of the Policies at any time by: (a) posting the revised version on the Site; (b) asking You to re-verify Your login credentials; (c) electronically sending You a link to the modified Agreement or Policies; or (d) through other reasonable means. Your continued use of the Services after Exchange Mail has notified you in one of the above manners will be deemed to constitute Your acceptance of any such modification, provided that: (A) with respect to Free Subscriptions, such modifications will apply retroactively to the inception of Your access to or use of the Site or Services unless expressly prohibited by applicable law; and (B) with respect to Paid Subscriptions, such modifications will (i) not modify any financial terms in the then current Order for the initial Term thereof and will apply only to future Terms or Orders; (ii) apply only prospectively and will not affect any prior rights You may have; and (iii) not be construed to modify any other terms or conditions in any material manner during the then current Order for the initial Term thereof (any such material modifications will apply only to subsequent Terms or new Orders). In addition to the above, all modifications to this Agreement or any of the Policies will be effective immediately upon posting for all Orders subsequent thereto, unless otherwise provided.
- Downtime and Maintenance. You acknowledge that Exchange Mail is entitled, without any liability, to suspend access to any or all of the Services at any time: (i) to perform scheduled or unscheduled maintenance, modifications or upgrades; (ii) due to hardware failures, power outages, failures of third-party providers, or because of interruptions of any other kind; (iii) to mitigate the effects of or prevent any attack or threat to the Site, Services, or any other network or systems on which the Services rely; or (iv) as necessary in Exchange Mail’s sole discretion because the Services or Your Use thereof are or may violate a law or regulation, or as might be required for other legal or regulatory reasons (collectively, “Approved Service Suspensions”). Exchange Mail has no obligation to provide You notice of the cause of any particular Approved Service Suspension. However Exchange Mail will attempt to notify You in advance of any scheduled Approved Service Suspension, but other than as may be expressly stated in the applicable Order, Exchange Mail will have no liability for any damages, losses (including loss of data or profits), or any other consequences incurred as a result of an Approved Service Suspension or the failure to provide notice thereof.
- Fees and Payment Terms. You agree to pay Exchange Mail all fees in accordance with the applicable Order (“Fees”). If the Order does not specify any invoicing terms, such Fees will be invoiced annually in advance. Unless some other date is specified on the Order, You agree to pay Exchange Mail the amount set forth on any invoice, submitted in accordance with the Order, within thirty (30) days after receipt thereof. If You have specified payment by credit card or direct withdrawal from a bank account, then You authorize Exchange Mail or its applicable processing agent to charge the credit card, or debit the bank account, on file for all Fees due. Exchange Mail may change its rates prospectively for any Renewal Term by posting the new rates on the Site, or by providing you advance notice through other reasonable means. Exchange Mail may charge You interest on any overdue Fees at a rate of 1.5% per month or, if such rate of interest is unlawful, the maximum rate of interest permitted by law. You will reimburse Exchange Mail for all reasonable costs and expenses (including reasonable attorneys’ fees) incurred in collecting any overdue amounts, as permitted by law. All Fees are non-cancelable and non-refundable, including upon any termination or suspension of this Agreement.
- Taxes. You will be responsible for all applicable taxes, however designated, incurred in connection with this Agreement, including but not limited to federal, state, or local sales or use taxes, value-added taxes (VAT), excises, and other taxes or duties which may now or hereafter be levied on the Services provided hereunder or on payments made under this Agreement (the “Taxes”). If at any time Exchange Mail or a taxing authority determines that Exchange Mail is required to pay any Taxes not previously collected from You, You will promptly submit such Taxes (including applicable penalties and interest, if any) to Exchange Mail (or if applicable to the taxing authority) within thirty (30) days of receipt of notice. You hereby indemnify and agree to defend and hold Exchange Mail harmless from any claim by a taxing authority for any Taxes, penalties or interest.
- Ownership. You acknowledge and agree that except for the limited use rights expressly provided in this Agreement, as between You and Exchange Mail, Exchange Mail owns and retain all rights, title, and interest, including, without limitation, all Intellectual Property Rights (as defined below) in and to the Service, the Site, and all software and other technology utilized to provide such services and all derivatives thereof (whether or not derived from suggestions, input or comments from You). No such rights are conveyed to You through this Agreement. You agree not to challenge the validity of or Exchange Mail’s ownership of Intellectual Property Rights in and to the Service or any part thereof or any of Exchange Mail’s associated rights. You agree to provide Exchange Mail with reasonable assistance with enforcing its rights at its own expense. Any enforcement of Exchange Mail’s rights, however, will remain within Exchange Mail’s sole discretion, including, whether and how to proceed with any enforcement activity. Any failure to proceed with any enforcement activity will not be deemed a waiver of Exchange Mail’s rights to do so later.“Intellectual Property” means and includes all algorithms, application programming interfaces, apparatuses, software, circuit designs and assemblies, databases and data collections, diagrams, formulae, inventions (whether or not patentable), know-how, logos, marks (including brand names, product names, logos, and slogans), methods, network configurations and architectures, net lists, photomasks, processes, proprietary information, protocols, schematics, specifications, software code (in any form including source code and executable or object code), subroutines, test results, test vectors, user interfaces, techniques, URLs, web sites, works of authorship, and other forms of technology (whether or not embodied in any tangible form and including all tangible embodiments of the foregoing such as instruction manuals, laboratory notebooks, prototypes, samples, studies, and summaries).“Intellectual Property Rights” means all rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask works; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents and industrial property rights; (v) other proprietary rights in Intellectual Property of every kind and nature; and (vi) all registrations, renewals, extensions, continuations, divisions, or reissues of, and applications for, any of the rights referred to in clauses (i) through (v) above.
- Exchange Mail Content. Unless otherwise noted within the Services, all software, documentation, scripts, images, videos, data, templates, information, and other content found on the Site or within the Services (“Exchange Mail Content”) is owned by Exchange Mail. Any and all Intellectual Property Rights contained within Exchange Mail Content, or that are derivatives thereof, are retained by Exchange Mail.
- Feedback. You may: (i) provide Exchange Mail with periodic information about Your use of the Services and with respect to any problems, including, the nature and frequency of problems, encountered with use of the Services and any resolutions arrived at for those problems; and (ii) communicate to Exchange Mail any suggested modifications, changes, or enhancements of the Services (collectively, “Feedback”). You represent that nothing in that Feedback constitutes Your proprietary or Confidential Information (as defined below) and You disclaim all rights in the Feedback and agree that Exchange Mail may freely use, without any obligation to You, any of the Feedback.
- Restrictions. Your use of the Services will not extend beyond the scope of this Agreement. Specifically, You will not (and will not directly or indirectly assist any third party or person to): (i) copy, reproduce, transmit, distribute, publish, display, modify, alter, sell, resell, lend, loan, lease, assign, license, sublicense, or transfer any or all of Your rights or licenses under this Agreement; (ii) access or use the Services except as explicitly provided in this Agreement; (iii) use the Services in violation of any law, including without limitation, the U.S. CAN-SPAM Act or any other similar law or regulation; (iv) use automated scripts to collect information from or otherwise interact with the Service; (v) use the Services to harass or intimidate any person or entity; (vi) reverse engineer, decompile, reverse compile, disassemble, reconstruct, translate, or create any derivative work of the Service or any part thereof; (vii) attempt to circumvent any technological protection measures which are in place to restrict access to any portion of the Services; (viii) erase or remove any proprietary or intellectual property notice contained in the Service; (ix) use or permit use of the Services for or by any person or entity other than Your employees and agents, who are each bound to treat the Services as Exchange Mail Confidential Information and to otherwise comply with the terms of this Agreement; or (x) have more than one (1) Account.
- Warranties by You. You hereby represent, warrant, and covenant that: (i) You have the legal right and authority to enter into this Agreement and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (ii) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement; (iii) Your Content, and any other data, information or content You provide to Us in connection with this Agreement and Your access to the Site and use of the Services, is correct and current, and does not constitute defamation, violate a third party’s privacy, publicity or other personal rights, and will not violate applicable law or a third party’s contractual rights; (iv) this Agreement will constitute Your legal, valid, and binding obligation, enforceable against You in accordance with its terms; and (iv) no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or third party is required to be obtained by You in connection with the execution, delivery and performance by it of this Agreement or the taking of any other action contemplated hereby, which has not been obtained.
- Warranties by Exchange Mail. Except in the case of a Free Subscription (for which no warranties of any kind are made), Exchange Mail represents and warrants that it will use commercially reasonable efforts to provide You the Services in accordance with Your Order and this Agreement. However, Exchange Mail’s sole obligation, and Your sole and exclusive remedy with respect to any failure by Exchange Mail to perform in accordance with the warranty in the preceding sentence, is for Exchange Mail, in its sole discretion, to take commercially reasonable efforts to re-perform the affected Services or refund the Fees paid or payable for Services provided during the period of the failure.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 17: (i) Exchange Mail DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY IMPLIED BY APPLICABLE LAW; (ii) THE SITE, THE SERVICE (AND ANY AND ALL CONTENT OF ANY KIND PROVIDED BY EXCHANGE MAIL IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT) IS PROVIDED “AS IS,” “AS AVAILABLE” AND WITHOUT WARRANTY; AND (iii) EXCHANGE MAIL DOES NOT WARRANT OR GUARANTEE INBOX PLACEMENT RATE (SOMETIMES REFERRED TO AS MESSAGE “DELIVERY”) BECAUSE OF THE GREAT NUMBER OF CONDITIONS, PRACTICES, REPUTATIONAL ISSUES OUTSIDE EXCHANGE MAIL’S CONTROL, AND/OR THE POSSIBILITY THAT MESSAGE RECIPIENTS MAY, AT ANY TIME, BE USING HARDWARE OR SOFTWARE THAT IS NO LONGER SUPPORTED PURSUANT TO THE MANUFACTURER’S END-OF-LIFE POLICY. ANY USE OF THE SERVICES BY YOU IS ENTIRELY AT YOUR OWN RISK. IF YOU MAKE ANY CHANGES OR MODIFICATIONS TO THE SERVICE (OR ANY CONTENT OF ANY KIND PROVIDED BY EXCHANGE MAIL IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT), THE WARRANTIES IN SECTION 17 WILL BE NULL AND VOID. IF ANY PART OF THIS SECTION IS DETERMINED TO BE UNENFORCEABLE, THEN ALL EXPRESS AND IMPLIED WARRANTIES WILL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE EFFECTIVE DATE, AND NO WARRANTIES OR CONDITIONS WILL APPLY AFTER THAT PERIOD.
- Indemnification. You agree to defend, indemnify, and hold harmless Exchange Mail and its affiliates, stockholders, successors, officers, directors, employees, and agents, from and against any and all actions, proceedings, claims, judgments, liabilities, losses, and damages and related fees and expenses (including reasonable attorneys’ fees) arising out of or relating to: (i) Your Content; (ii) Your breach of this Agreement; (iii) the violation of rules, generally recognized industry best practices, regulations or laws with respect to any content or rights, including, but not limited to, obscenity, defamation, publicity, information security, and privacy; or (iv) Your negligence or willful misconduct. Exchange Mail will promptly provide You with notice of any such claim and will have the right to participate in the defense of any such claim.
- Limitation of Liability. EXCHANGE MAIL’S CUMULATIVE LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO EXCHANGE MAIL BY YOU ON ACCOUNT OF SERVICES USED DURING THE THREE MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE UPON WHICH ANY SUCH LIABILITY ARISES (AND IF NO SUCH FEES HAVE BEEN PAID, THEN 0). IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES. THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, VOID OR UNENFORCEABLE. MOREOVER, THE PARTIES AGREE THAT THE LIMITATIONS IN THIS SECTION ARE A BARGAINED-FOR EXCHANGE AND A MATERIAL CONDITION AND PREMISE OF THIS AGREEMENT.
- Suspension. Exchange Mail will have the right to immediately suspend Your Account, in whole or in part without prior notice, for any reason and/or time that is reasonable under the circumstances, including, without limitation, Your failure to timely pay Fees or a suspected data security breach. During such suspension period: (i) You and all of Your User’s access to Your Account and the Services will be suspended; (ii) Your obligations pursuant to this Agreement will continue to accrue and all payments will be made in accordance with Your Order and this Agreement; (iii) if You are in breach of this Agreement, all Fees will continue to accrue; and (iv) unless Exchange Mail deems Your Account and/or any of Your Content to be potentially harmful in any way or potentially in violation of any applicable law, Exchange Mail will maintain your Account and not take action to intentionally delete or remove any or Your Content stored on or within the Service.
- Termination. Unless earlier terminated in accordance with this Section, this Agreement will continue in full force and effect through the end of the Term. Exchange Mail will have the right to terminate this Agreement: (i) for any or no reason upon notice to you during any Free Subscription; or (ii) upon any breach by You of the terms of this Agreement, including without limitation, the failure to timely pay Fees, that remains uncured for ten (10) days after notice of such breach. However, if You violate the Messaging Policy, Exchange Mail may terminate this Agreement immediately upon notice to You, without any obligation to allow You an opportunity to cure. Upon termination or expiration of this Agreement for any reason: (i) all rights, licenses, and subscriptions granted to You under this Agreement will immediately terminate; (ii) You and all of your Users will immediately cease all use of and access to Your Account and the Services; (iii) all Fees then owed by You will become immediately due and payable; (iv) You will immediately either return to Exchange Mail or, in Exchange Mail’s discretion, destroy all of the following that is in Your possession: (A) Exchange Mail Content; (B) Exchange Mail Confidential Information; (C) Account IDs; and (v) Exchange Mail may delete any of Your Content stored and/or in process in the Site, the Services or otherwise by Exchange Mail within ten (10) business days after the effective date of expiration or termination, or as required by applicable law. This Section notwithstanding, upon termination or expiration of this Agreement, Exchange Mail may retain Your Content to comply with applicable law or as necessary to prosecute or defend any legal claim (in which case Exchange Mail may retain Your Content for a reasonable time pending resolution of such obligation or issue).The following sections of this Agreement will survive any expiration or termination of this Agreement: 2 (Acceptance of Agreement and Policies); 8 (Fees and Payment Terms); 9 (Taxes); 10 (Ownership); 11 (Exchange Mail Content); 12 (Your Content); 14 (Confidentiality); 15 (Restrictions); 18 (Disclaimer); 19 (Indemnification); 20 (Limitation of Liability); and 21 through 37.
- Linked Sites. The Services and the Site through which the Services are provided may contain links to third party websites not under Exchange Mail’s control. As such, Exchange Mail is not responsible or liable for the content on or the policies regarding use and privacy of any such website. If You access any such website, You do so at your own risk.
- Export Control. You agree not to export, re-export, or import the Services to any country in contravention of any applicable law.
- U.S. Federal Government Use. When the Service is licensed for use in the performance of a U.S. Government prime contract or subcontract, the Services and any software incorporated therein is designated as a “commercial item” (as defined in 48 C.F.R. 2.101), consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. The Services and technical data is licensed only under the commercial terms herein and is subject to the provisions of Subpart 12.2 of the Federal Acquisition Regulations and other applicable acquisition regulations and are provided to the U.S. Government only as a commercial item.
- Notice. Except as expressly provided in this Section, any notice required for or permitted by this Agreement will be in writing and will be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally, (ii) by overnight courier upon written verification of receipt, (iii) by telecopy or facsimile transmission when confirmed by telecopier or facsimile transmission report, or (iv) by certified or registered mail, return receipt requested, upon verification of receipt.Notices made by Exchange Mail that affect customers generally will be posted on the Site or sent via email.Notices made by Exchange Mail to You or Your Account specifically (including notices of breach and/or suspension) will be provided to You via the email address provided to Exchange Mail during Your Order completion process or to any updated email address You provided to Exchange Mail in accordance with standard account information update procedures that Exchange Mail may provide from time to time. It is Your responsibility to keep Your email address associated with Your Account current. You will be deemed to have received any email sent to any such email address, upon Exchange Mail sending of the email, whether or not You actually receive the email.Notices made by You to Exchange Mail should be sent to email@example.com, with a copy sent first class mail to:Exchange Mail.
Exchange Mail, Inc.
1521 Concord Pike (US202)
Wilmington, DE 19803
- Assignment. Each and all of the provisions hereof will be binding on and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and permitted assigns. You may not assign this Agreement, in whole or in part, without Exchange Mail’s prior written consent. Exchange Mail may terminate this agreement immediately in its sole discretion if You have attempted to assign this Agreement contrary to this Section. A merger involving You or change in control event involving You, including, by operation of law, will qualify as an assignment for the purposes of this Section. Exchange Mail may at any time assign, transfer, charge, sub-contract or deal in any other manner with any or all of its rights or obligations under this Agreement.
- Governing Law; Disputes. This Agreement is governed by the laws of the State of Delaware, excluding conflict of laws provisions and excluding (i) the 1980 United Nations Convention on Contracts for the International Sale of Goods, and (ii) the Uniform Commercial Code of the State of Delaware or any other state that could otherwise apply to this Agreement. The parties agree that any right to a jury trial is hereby waived and that any disputes arising out of this Agreement will be resolved by binding arbitration in Wilmington, Deleware in accordance with the rules of the American Arbitration Association.
- Force Majeure. In the event either party is unable to carry out its material obligations under this Agreement, except for the payment of money, by reason of Force Majeure (as defined below), those obligations will be suspended during the continuance of the Force Majeure, provided that the party relying on this Section takes all reasonable action to remedy the effect of the Force Majeure as quickly as practicable. “Force Majeure” includes, without limitation: labor strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, telecommunications outages, acts of God, war, terrorism, governmental action, or any other cause that is beyond the reasonable control of such party.
- Waiver. No waiver of any term or condition of this Agreement will be construed as a waiver of any other term or condition. Waiver of any default under this Agreement will not be construed as a waiver of any other default. No waiver of any provision in this Agreement or any right or remedy hereunder will be effective, unless in writing and signed by the party against whom such waiver is sought to be enforced. There will be no waiver even if there is a delay in exercising or a partial exercising of any right or remedy under this Agreement.
- Injunctive Relief. You acknowledge that any unauthorized use of the Services, breach of the confidentiality or intellectual property provisions of this Agreement may cause irreparable harm to Exchange Mail, the extent of which would be difficult to ascertain. Accordingly, You agree that, in addition to any other remedies to which Exchange Mail may be legally entitled to, Exchange Mail will have the right to seek injunctive relief in the event of such a breach.
- Publicity. You agree that Exchange Mail may use Your name and logo in customer lists (both in print and on the Site) and in connection with other reasonable marketing activities related to the Services.
- Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph, or in any way affect such agreements.
- Prohibition on Competitive Use. Exchange Mail provides the Site, Services, and Exchange Mail Content to You, subject to this Agreement, only for non-competitive use. For the avoidance of doubt, You will not use, access or otherwise view or interact with the Site, Services, Exchange Mail Content, or any of the information or content therein to directly or indirectly establish, maintain, or otherwise provide a competing service or software solution to the Service.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect.
- Relationship. The performance by Exchange Mail of its duties and obligations under this Agreement will be that of an independent contractor, and nothing in this Agreement will create or imply an agency relationship between Exchange Mail and You, nor will the Agreement be deemed to constitute a joint venture or partnership between Exchange Mail and You.
- Entire Agreement. This Agreement constitutes the entire agreement between You and Exchange Mail with respect to the subject matter found within this Agreement. This Agreement supersedes, and the terms of this Agreement govern, any other prior or collateral agreements with respect to the subject matter hereof. You acknowledge that in entering into this Agreement You have not relied on, and will have no right or remedy in respect of, any statement, representation, assurance or warranty other than as expressly set forth in this Agreement. No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement will be valid or binding except in accordance with the terms of this Agreement.
YOU AGREE TO CREATE, STORE, AND SEND ALL DIGITAL MESSAGES USING THE SITE OR THE SERVICES IN STRICT COMPLIANCE WITH THIS MESSAGING POLICY. YOUR CONTINUED USE OF OR ACCESS TO THE SERVICES CONSTITUTES ACCEPTANCE OF THIS MESSAGING POLICY. IF YOU ARE NONCOMPLIANT WITH THIS MESSAGING POLICY, EXCHANGE MAIL HAS THE SOLE DISCRETION TO TAKE ANY ACTION IT DEEMS APPROPRIATE REGARDING YOUR ACCESS TO THE SITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION, IMMEDIATE SUSPENSION OR TERMINATION OF YOUR ACCESS TO THE SITE OR THE SERVICES WITHOUT NOTICE.
- Use only permission-based marketing Digital Message lists (i.e., lists in which each recipient has explicitly granted permission to receive Digital Messages from you by affirmatively opting-in to receive those Digital Messages).
- Always include a working “unsubscribe” mechanism in each marketing Digital Message that allows the recipient to opt out from your mailing list (receipt/transactional messages that are exempt from “unsubscribe” requirements of applicable law are exempt from this requirement).
- Comply with all requests from recipients to be removed from your mailing list within 10 days of receipt of the request or the appropriate deadline under applicable law.
- Include in each Digital Message your valid physical mailing address or a link to that information.
- Do not send to addresses obtained from purchased or rented Digital Message lists.
- Do not use third party message addresses, domain names, or mail servers without proper permission.
- Do not routinely send Digital Messages to non-specific addresses (e.g., firstname.lastname@example.org or email@example.com).
- Do not send Digital Messages that result in an unacceptable number of spam or similar complaints (even if the Digital Messages themselves are not actually spam).
- Do not disguise the origin, or subject matter of, any Digital Message or falsify or manipulate the originating message address, subject line, header, or transmission path information for any Digital Message.
- Do not send offers for the purpose of obtaining personal information or generating leads for third parties.
- Do not send “chain letters,” “pyramid schemes,” or other types of messages that encourage the recipient to forward the content to strangers.
- Do not send to lists of addresses that are programmatically generated or scraped from the Web.
- Do not employ sending practices, or have overall message delivery rates, which negatively impact the Services or other users of the Services.
- Do not use the Services to send messages that may be considered junk mail. Some examples of this type of messages include messaging related to: affiliate marketing, penny stocks, gambling, multi-level marketing, direct to consumer pharmaceutical sales, payday loans, etc.
- Store, distribute or transmit any malware or other material that you know, or have reasonable grounds to believe, is or may be tortious, libelous, offensive, infringing, harassing, harmful, disruptive or abusive; or
- Commit (or promote, aid or abet) any behavior, which you know, or have reasonable grounds to believe, is or may be tortious, libelous, offensive, infringing, harassing, harmful, disruptive or abusive. Examples may include Digital Messages that are themselves are or promote racism, homophobia, or other hate speech
Personally Identifiable Information. We collect personal information (“personally identifiable information“ or “PII”) about users of the Site and/or Services. In general, that means we collect PII about you when you provide it to us for the reason you provided it to us. The other instances in which we may collect and use PII are described below.
- register as a user of the Site and/or the Services;
- use the Services to send email or other digital messages;
- use the Site to communicate with or otherwise interact with other users, our staff, or other persons who are permitted to interact with and use the Site (such as support personnel or services);
- participate in any contests, sweepstakes, surveys, user panels, focus groups or other interactive services on or related to the Site;
- visit or participate in forums or other discussions that we host or provide; or
- submit your contact information to us for the purpose of being contacted regarding our Services and for us to provide customer support.
- your contact information (e.g., your name, physical address, mailing address, email address, digital message address, and phone and fax numbers);
- your billing information (e.g., credit card information, billing address, etc.);
- your demographic and survey information (e.g., job function, title, topics of interest, purchase interest level, survey responses, and information solicited through online registration forms);
- your history as our customer (e.g., your order(s), payment history, Site and Services usage, promotional history, inquiries, and responses); and
- all content posted in public areas (e.g. online forum posts, comments on blog posts, articles, or other content on community areas, etc.). NOTICE: In order to maintain standards for online conduct in public areas we provide and/or sponsor, we may remove or appropriately edit/redact an inappropriate posting when we find it.
- to respond to your inquiries and fulfill your requests, such as to send you newsletters, reports, or other communications;
- to send administrative information to you, for example, information regarding the Services and changes to our terms, conditions, and policies as well as notice regarding compliance actions we may take;
- to complete and fulfill your subscription purchase, for example, to process your payments, communicate with you regarding your subscription purchase and provide you with related customer service or technical support;
- to send you marketing communications that we believe may be of interest to you (including announcements about new services or products, featured editorial content, co-sponsored products, events, special sales and promotions, and more);
- to personalize your experience with the Services by presenting products and offers tailored to you;
- to allow you to participate in sweepstakes, contests and similar promotions and to administer these activities. Some of these activities have additional rules, which could contain additional information about how we use and disclose your PII, so we suggest that you read these rules carefully;
- to facilitate social sharing functionality;
- to allow you to send messages through the Services. By using this functionality, you are telling us that you are entitled to use and provide us with your recipients’ name and email address or other digital sending and receiving address; and
- for our business purposes, such as data analysis, audits, fraud monitoring and prevention, development of new products, enhancing, improving or modifying our Services, identifying usage trends, determining effectiveness of our promotional campaigns and operating and expending our business activities.
- to our affiliates;
- to our third-party contractors who maintain the Site and assist us with providing the Services. Such contractors who may have access to your PII include providers of services, such as website hosting, server hosting, data analysis, payment processing, subscription entitlement management, order fulfillment, information technology and related infrastructure provision, customer service, email delivery, credit card processing, auditing, content scanning and other similar services. They are permitted to access and use your PII solely and exclusively in performance of their duties to us or to comply with applicable laws, and they owe us either direct employment duties, or they have signed confidentiality agreements, such that they are obligated to keep your PII confidential; and
- Audits and Business Operation. We are subject to various audits by accountants, clients, and government regulators. In the course of such audits, such auditors may come into contact with PII. Where possible, we require such auditors to keep confidential and not disclose PII consistent with law. In certain governmental audits, we may not be able to require such confidentiality. In addition, we may disclose PII to our attorneys as may be required to obtain legal advice about our and your legal rights and obligations.
- Government and Litigation Requests. We reserve the right to use or disclose PII in connection with: (i) legal proceedings or preparations therefore; (ii) to respond to judicial or other government process such as court orders, subpoenas, requests for discovery and similar litigation relation requirements; (iii) to provide information to law enforcement agencies or for an investigation on a matter related to public safety; and (iv) in general to comply with applicable laws, government requests and court orders. We may elect to make these disclosures even if we have not received a subpoena, if we believe in good faith that we have a legal obligation to do so, or if we believe that our failure to do so may result in liability to us, or a violation of law. If we receive a subpoena or other legal demand for your PII, we may endeavor to notify you of the subpoena or demand by contacting you at the current email address that we have for you. However, we cannot promise that we will always be able to send you a notice, that we will attempt to contact you if the email we send fails to get to you, that we will be able to send you the notice before we turn over your information, or that we will resist the request. Unless prohibited by applicable law or other obligations we owe you, we retain the right to impose upon you a reasonable charge for certain requests for your information or data.
- Change of Control. If we were to undergo a merger, acquisition, corporate reorganization or recapitalization, divestiture, sale of substantially all of our assets, bankruptcy, or other change in control (in each case which may be in respect of the division that administers the Site or the Services, and not necessarily the entire company), PII may be used or disclosed in connection with those activities, which may include the entire transfer of our database of PII to such successor or assignee entity.