Please carefully read these Terms and Conditions.
By using our Services or signing up for a Mailify account, you’re agreeing to these Terms and Conditions. This is a legal agreement. By checking the "Terms and Conditions" box, or registering for Mailify Services, you agree that you have read,
understand, and accept the Terms and Conditions and you agree to be bound by these Terms and Conditions and all terms, policies and guidelines herein incorporated by reference (this "Agreement"). If you do not agree to this Agreement, you should
not use the Services in any way
Mailify Software and Services
Last updated 01/30/2019
1. Scope and Eligibility of End User
These Terms and Conditions set out the legally binding terms of your use of the software and services provided by Sarbacane Software, Inc. a New York Corporation doing business as "Mailify" through the Mailify Software and all of its affiliates
(hereinafter referred to as "Mailify" or "Services") to you and/or your company (hereinafter referred to as "End User," "You" or "Your"), and may be modified or amended from time to time by Mailify, such modifications or amendments being
immediately effective upon posting of the modified agreement at https://www.mailify.com
You may receive a copy of this Agreement by e-mailing us at firstname.lastname@example.org and identifying the subject line of the e-mail as "Terms and Conditions."
By using or registering for the Services provided by Mailify, You hereby agree that You have read and understand these Terms and Conditions of Services and all of their contents (hereinafter referred to as this "Agreement"), and that You will be
subject to all of the terms and conditions set forth herein. You also hereby agree to review this Agreement periodically to be aware of any such modifications, additions, deletions or other changes, and Your continued access, registration and/or
use of the Mailify Services shall be deemed Your acceptance of such modified Agreement.
To properly access the Services and download the Mailify software, the End User shall previously have a working Internet connection and have previously created an account through the software.
The End User shall remain solely responsible for the information provided during the account registration process.
You understand that your eligibility for use of the Services is contingent upon meeting the following conditions:
- (a) You are at least 18 years of age;
- (b) You use the Services according to this Agreement and all applicable laws and regulations;
- (c) You provide complete and accurate registration information and maintain accurate registration information;
- (d) You agree and understand that Mailify may, at any time, and without prior notice, revoke and/or cancel your access if you fail to meet these criteria or violate any portion of these terms;
When using our Services, you will also be subject to any additional posted guidelines or rules applicable to specific services and/or optional features which may be posted from time to time (the "Guidelines"). All such Guidelines are hereby
incorporated by reference into this Agreement.
2. Description of Mailify
Mailify Services consist of a software which makes it possible to prepare, send and track emailing or Short Message Service (SMS) campaigns and optional features the End User may choose from. The software solution is made available on the Mailify
website : https://www.mailify.com where it may be downloaded or be used with a Web browser at : mailify.app. (it depends on the subscription subscribed).
Each person wishing to subscribe to any offer provided by Mailify should access the application and create a free account.
The End User is made aware that when he creates an account for the first time, the evaluation period is offered and valid for a one-month period once they are made available.
The End User may upgrade their account at any time by subscribing to Mailify's offers.
The Services and optional features availability can vary depending on the Software version the End User utilizes
Mailify offers various subscriptions, as outlined in detail on the Site.
The subscription contract comes into effect on the date the order is validated by Mailify, for an initial period chosen at the time of the order by the End User. At the end of the initial period, the subscription is automatically renewed for
successive periods of the same duration as the initial period chosen, unless terminated by the End User under the conditions below.
Disabling automatic renewal. The End User may, at any time, deactivate the automatic renewal of their subscription. For this deactivation to be effective and taken into account for the current subscription period, the End User must send their request by contact form, at the
latest one working day before the end of the current subscription period.
Consequences. When the End User requests the deactivation of automatic renewal within the specified time limits, the subscription continues until the end of the current period and is not renewed. Consequently, at the end of their subscription, the User loses
the benefit of the Services and any remaining credits, as well as access to the Software. Unless otherwise requested in writing by the End User, their campaign data may be kept by Mailify for a maximum period of six months. The User must in any
case export all their data as a precaution before the end of their subscription.
No partial or full reimbursement will be granted, even in cases of non-use.
The End User can always change subscription under the conditions outlined in their online account.
The End User will not use more than one subscription on the same account. Subscribing to a new offer automatically terminates and replaces the prior subscription underway, in the event of which no reimbursement will granted.
E-mail/SMS packages. The End User may subscribe to additional email credit packs and/or SMS credit packs, subject to a current subscription and subject to the payment of it. Credits remain valid until used, as long as the End User has a subscription.
Value of an email credit and an SMS credit – countdown.
A (1) usable email credit allows you to send an (1) email of less than 195 Kb to a recipient. Beyond this size, an additional credit for each 195 Kb extra is required.
A (1) usable SMS credit allows you to send one (1) SMS in Metropolitan France with a maximum size of 160 characters. If the number of characters of an SMS is between 161 and 300, then two (2) SMS credits are required. If the number of characters
of an SMS is between 301 and 450 characters maximum, then three (3) SMS credits are required.
According to the article above, the number of credits required to send (1) an SMS with fewer than 161 characters varies depending on the destination. It is the End User's responsibility to regularly check the corresponding list of destinations
provided on https://www.mailify.com/sms-marketing. Mailify can modify the list of destinations at any time by adding or removing destinations. Mailify may also change the price listing of the
destinations without notice, the latter depending on the pricing of third-party operators.
The End User is informed that credits used are deducted upon sending messages and not upon receipt. Credits will also be deducted for test messages.
Principle. The ordering, renewal and use of options by the End User requires they have a subscription.
For End Users with a monthly subscription, any option ordered or activated by the End User is concluded for an initial period of one year from the confirmation of order or activation, by Mailify and is automatically renewed, subject to a current
subscription, for successive periods of one year, unless terminated by the End User under the same conditions as those of their subscription.
For End Users with an annual subscription, any option ordered or activated by the End User is concluded as from the confirmation of order or activation, by Mailify for the remaining term of the current subscription, and is automatically renewed on
the date of renewal of the current subscription for successive one-year periods, unless terminated by the End User under the same conditions as those of their subscription.
Any option included in the subscription packages must be activated by the End User. No partial refund of the subscription will be made if the End User does not use the option.
Subscription to a Customized Domain Name. A personal domain name makes it possible to personalize the mailing address of the emails as well as the links contained in the body of the message. Thus, the End User may configure their own domain by following the integration instructions
provided by Sarbacane Software, or subscribe directly to the option allowing the End User to rent a customized domain name, subject to availability and acceptance of the accredited registrar and the Registry/Registration Authority and the
At the request of the End User, Sarbacane will then send the registration request to the accredited registrar.
The End User is informed that the processing times and acceptance of the request (at the latest within 24 working hours) by the registrar are beyond the control of Sarbacane and that it can not, as such, be responsible a delay. Sarbacane
undertakes to reimburse the End User for any transaction that cannot be completed if the transaction may be cancelled and reimbursed by the Registry. (Example : If the domain name is no longer available for registration upon receipt of payment).
For convenience purposes, the domain name is registered in the name of Sarbacane Software (our parent company) who on behalf of the End User and does not use or intervene in the choice of registered domain names. The End User has an exclusive
right to use the registered domain name, in order to personalize the shipping address for their emailing and the links contained in the body of messages. However, at any time, the End User may have full management of the domain name registered on
their behalf, by requesting its transfer to the following address : sales[at]mailify.com. Sarbacane will communicate to the End User all the necessary information. The effective transfer will automatically terminate the option. No refund of sums
already paid under the option will be made. Also, no discount will be applied to the subscription price
Dedicated IP address. The dedicated IP addresses are exclusively of a nature to be used in the context of sending e-mailing campaigns with the Software.
Additional End Users. To share data and/or credits between several End Users, it is necessary to subscribe to the option in sufficient number and based on the Users’ needs.
4. Beta Test
When Mailify makes softwares, applications, features or any other component available in Beta version, the following stipulations apply :
Mailify may, in all discretion, propose to any voluntary End User to test Beta versions free of charge, in order to identify any possible malfunction.
As such, the End User agrees : (i) to only use elements in Beta versions for testing and improvement purposes ; (ii) not to let anyone other than themselves use it; (iii) not to disclose any information relating to Beta versions. This information
is confidential and constitutes, as such, trade secrets. Furthermore the User agrees (iv) to inform Mailify in good faith of its reactions and suggestions as a result of use of the Beta versions. All comments, feedbacks, ideas and more generally
any response from the End User as part of the Beta versions will be the exclusive property of Sarbacane Software, our parent company. The End User agrees (v) not to publish or make accessible by any means its comments to the public except with the
prior consent of Mailify, and the User agrees (vi) to maintain any full backup of its system and data prior to the use of Beta versions.
The access procedures and the characteristics of the Beta versions are freely defined by Mailify, and can be modified by them at any time. Mailify may temporarily limit, suspend or discontinue access and maintenance to Beta versions at any time
and inform the End User so by any means.
The End User accepts that Beta versions may include known or unknown bugs and that the data synchronized by the End User may be erased, reset at any time and that, depending on the case, Beta versions may damage the User's equipment. The End User
alone will bear the consequences and risks of any nature whatsoever related to the use of Beta versions.
5. Assistance – coaching
Assistance. If necessary, assistance is available during Sarbacane's working hours through different means and based on the subscription subscribed (see Site), to advise and support the User if any technical difficulties arise in connection with the
Before making any request, the End User must read the documentation and FAQs made available on the Site ; apply the procedures described; and check whether their difficulties do not depend on non-compliant use of the Services or their own
equipment, infrastructure, network, Internet connection.
Each request is registered with a tracking number. As part of the management of requests, the End User agrees that the assistance may connect to the End User's account and perform any operation necessary to try to resolve the difficulties
encountered according to the information and system data available to Mailify. The assistance undertakes to inform the End User of the progress of their request.
Thus, by contacting the assistance, the End User undertakes (i) to communicate any necessary information requested by the assistance for the understanding and resolution of the difficulties encountered and to remain available in case of need; (ii)
to remain courteous and to use the assistance in a non-abusive manner; (iii) to respect all the advice and recommendations communicated as part of the assistance.
Unless specific conditions apply, Mailify does not give any guarantee of intervention time and incident resolution as part of the assistance.
Coaching. Mailify also provides assistance for the configuration of the Mailify account and the use of the Software, advice & best practices on campaigns, assistance on sending campaigns, recommendations on the email marketing strategy, depending on the
This support does not include the supply of Deliverables (By "Deliverable(s)" below, we mean the completion of element(s) that Mailify performs on behalf of the End User. It is mainly of an electronic nature (e-mail and SMS templates, statistical
reports, etc.).), the latter being the subject of extra services subject to specific invoicing.
Access, credits are delivered on the day that the full payment of is received by Sarbacane (except for domain names), unless the Parties have agreed otherwise in a written agreement during the order.
We may nevertheless delay confirmation of payment and related orders in some instances when fraudulent activity needs to be checked.
7. Pricing and Payment
Our prices are available online at https://shop.mailify.com
Applicable prices are the ones in effect on the day of invoicing. Our products are payable upon ordering, directly online on the site by indicating a credit card number (SSL secured mode) or any other payment method available on the date of the
order or renew. In case the authorization of payment by credit card is declined by accredited organizations or in case of non-payment, Mailify reserves the right to suspend or cancel the order.
By providing their banking information, the End User authorizes Mailify to debit their card or bank account for the amount relating to the Services and options. On each renewal date, the amount of the Services will be deducted automatically from
the credit card details or from the bank account, to which the User expressly agrees. In the event of a payment incident, the End User acknowledges and expressly agrees that Mailify will issue a new debit the next day if the attempt still fails
and so until the fifth day. In the absence or error of payment by credit card or debit, the End User undertakes to pay the amounts due, by any means, upon receipt of invoice.
Invoices will be available for downloading through the customer’s account, to which the End User agrees.
8. Legal, Intellectual Property and Regulatory Compliance
You hereby represent and warrant that Your use of Mailify and the Services will comply with all applicable laws and regulations, including but not limited to laws and regulations specific to data protection, electronic communication, and privacy
laws that apply to the countries where You’re sending any form of email through Mailify. You also hereby agree to indemnify and hold Mailify harmless from any losses, including attorney fees, which directly or indirectly result from your breach of
any part of these warranties and/or this Agreement.
8.1 End User submitted content and related Obligations
You, as End User, remain solely responsible for any content, data, text, software, music, sound, video, photographs, graphics, messages, files or other material that is transmitted, posted or otherwise distributed by You through the Services
(hereinafter referred to as " End User Content"), including, but not limited to, the contents of your electronic mail communications, the contents of your social media pages, photographs posted by You on the Mailify Site or through our Services.
As such, You shall have sole liability for all End User Content posted by You, whether publicly or privately posted and/or transmitted. Mailify shall not be responsible and shall not hold any liability regarding the monitoring of your End User
Content provided through the Services, and Mailify does not warrant nor represent the accuracy, quality and/or integrity of the End User Content.
By utilizing the Services, You also acknowledge that You may be exposed to content or other materials submitted by third parties or other End Users that may be offensive, indecent or otherwise objectionable, and that Mailify shall hereby be held
harmless from any liability resulting or arising out of same. Likewise, Mailify shall not be held liable for any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content transmitted through the
By accessing, using and/or registering for the Services, You agree to: a) provide true, accurate, complete and current End User information as requested by Mailify at any time; b) promptly and regularly update your End User information to
maintain its accuracy and completeness; c) provide for your own access to the Internet and pay any fees or costs relative to such access that is required to access the Services; d) provide all necessary equipment and/or materials necessary for You
to make such connection to the Internet in order to access, use and/or register for the Services.
By providing any End User information that is untrue, inaccurate, incomplete and/or not current, Mailify reserves the right to suspend or terminate your account and refuse any and all current or future use of the Services, in whole or in part, by
you. On occasion, we may ask you to sign an affidavit verifying the fact that your list is truly permission based and when requested, You agree to provide current, complete and truthful information about yourself and/or your organization. You
agree to update any such information when it changes.
Mailify completely forbids any content which directly or indirectly: Promotes, displays, sells or provides pornography, pornographic or sexual goods and services or anything related to, illegal goods, drugs, accessories or contraband related to
drugs, pirated software, or instructions or education on how to create grenades, bombs, illegal arms or other weapons;
Markets, displays or offers any material that exploits children or minors (anyone 18 years old and under) ;
Offers, promotes, sells or provides either services or content related to commercial email spam, which includes but is not limited to: illegal, Web-based or even direct pharmaceutical sales; this also includes sex or sex-related products, work at home businesses, credit repair, debt relief services, financial management services, trade or stock tips, refinancing and mortgage-related services, party and/or nightclub promotion, psychic services or psychedelic goods, gambling, bet-making or odds-based services, which may include but is not limited to casinos or casino games, racetrack or dog-racing bets, poker, online betting businesses, and both pro and college sporting event betting services;
Provides, markets or offers any offensive material that expresses prejudice, racism, bigotry, hatred, profanity, or any material that uses lewd, excessively violent, lascivious, dirty, or other questionable and objectionable content; Provides, posts, markets or offers personal information about children or minors (anyone 18 and under) without the permission of their parents or legal guardians; Promotes, posts or offers any type of product or service that is illegal in the geographic area of where the content is created, sent from or received.
Distributes or unleashes nefarious computer or technology related items that include but are not limited to viruses, harmful code, trojans, key-logging software or other types of spyware. Distributes, promotes, posts or offers services or content that solicit participation in pyramid or ponzi schemes, multi-level or channel (MLM) businesses or services that include but are not limited to work at home jobs, "get rich quick" schemes, services or content that offers ways to "build wealth" or become "financially independent".
Distributes content that could be considered threatening, defamatory, libelous or harassing. Promotes or solicits material that encourages violence or subterfuge against organizations, governments, groups, individuals or public figures, or sends out or promotes anything that gives instruction or assistance in carrying out aforementioned violence or behavior. Distributes or uses any content not owned by the sender including photos, artwork or content without the express written consent of the owner, or distributes any material that identifies or displays images of people without their express written consent.
Distributes any "Affiliate" marketing campaign; "Affiliate marketing" shall mean any performance-based marketing in which a business rewards one or more affiliates for each visitor or customer brought by the affiliate's own marketing efforts and shall also mean any campaign which promotes a service or a product not directly sold by the End User and which compensates End User on a success fee basis or with a commission based remuneration.
8.2. Lists of Contacts: Opt-in and Opt-out
You warrant that you will only use contact lists if all recipients have agreed to receive your communications. You agree that you will not accept consent through participation in surveys, registrations, or through contact on social media sites, unless you specifically request confirmation to send such correspondences and the recipient has specifically consented. If and when you intend to use the Services for marketing purposes, you also hereby agree that every email sent in connection with Mailify Services shall contain a link allowing recipients to opt-out and unsubscribe from your mailing lists. To implement and ensure compliance with this Agreement, Mailify reserves the right to receive a copy of every email sent through the Services. Mailify also reserves the right to review and/or revise these links to its sole satisfaction, and you warrant that you will not attempt to remove, alter or disable such links.
You agree to process unsubscribe requests promptly within 5 business days of your receipt, and will update your email addresses and contact lists accordingly through your Mailify account. You warrant that for a recipient to unsubscribe, You will not attempt to charge a fee, require any additional personal identifying information other than an email address, nor add any additional steps beyond replying to an email or visiting a single web page. You agree that Your responsibility to process and comply with unsubscribe requests survives the cancellation or termination of this Agreement and/or Your Mailify account. You warrant that you will not use the Services to send emails to anyone who has opted out of or protested receiving such messages.
8.3. Intellectual Property
Mailify exclusively owns all intellectual property and other rights and owns authorizations, title and interest in and to the Mailify Services and all content and materials provided to You through the Services, including, but not limited to, the "Mailify" registered Trademark, text, software, music, sound, video, photographs, graphics and animation (hereinafter referred to as the "Content"). All such Content provided by Mailify through the Services is the sole and exclusive property of Mailify, and any unauthorized use of the Content may violate United States federal copyright laws, patent laws, moral rights laws, trade secret laws, confidential information laws, trademark laws, unfair competition laws or other similar rights.
If you think any content from our Services infringes on your intellectual property or copyright, you may ask us to remove those contents by contacting us at: email@example.com and giving us the following information: (1) exact identification of the infringing content, (2) your precise contact information and (3) an accurate statement under the penalty of perjury that you are authorized to act on behalf of the copyright holder.
To protect the rights of copyright holders, we reserve the right to terminate the accounts of infringers immediately and without notice.
8.4. Limited, nontransferable, nonexclusive and revocable License granted
Mailify hereby grants You a limited, nontransferable, nonexclusive, revocable license to access and use the Services and send, compose, read, print, save and forward messages containing the Content as described and limited in this Agreement. The period of validity of the aforementioned license is that of the End User’s subscription. You hereby agree to access and use the Services for their intended purposes, subject to Your compliance with this Agreement, and are hereby prohibited from utilizing the Services for any other purpose or to alter the Content and/or Services in any way, including, but not limited to, removing or deleting any proprietary rights notices.
This License does not include the right to collect or use information contained on the Site or through the Services for purposes prohibited by Mailify, to compete with Mailify, create derivative works based on any and all Content obtained through the Services, or download or copy any Content obtained through the Services. In addition, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, transfer any content, information, documents, graphics or other materials or Content obtained through your use of the Services, in whole or in part, for commercial or non-commercial purposes. License to use the Services is limited to personal use by the End User; therefore, resale or commercial use of the Services or any other means to seek financial gain from providing the Services to any third party, without the express prior written consent of Mailify, is strictly prohibited. If you use the services in a manner that exceeds the scope of this License or breaches this Agreement, Mailify may revoke the License granted to you.
8.5. Optional Content Monitoring – No Liability of Mailify
Despite not having any obligation to do so, Mailify reserves the right to monitor any content that You've provided by using our Services. Mailify also reserves the right to block or delete any email or message, if Mailify, in its sole discretion, has reasonable reasons to believe that it violates this Agreement or any applicable laws or regulations. It is nevertheless hereby understood that in no event whatsoever will our optional monitoring or related actions make Mailify liable or responsible for compliance with applicable obligations or laws, for which you alone, as End User shall be solely liable or responsible.
8.6. Strict Compliance with the CAN-SPAM Act
End User hereby acknowledges and agrees that any use of the Mailify Services shall be made in strict compliance with the provisions of the CAN-SPAM Act, as adopted and amended from time to time. The CAN-SPAM Act of 2003, signed into law on December 16, 2003, establishes the United States' national standards for the sending of commercial e-mail and requires the Federal Trade Commission (FTC) to enforce its provisions. All commercial emails or messages, are defined by the CAN-SPAM Act as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service," including email that promotes content on commercial websites. Such commercial messages must comply with all the CAN-SPAM Act requirements, including but not limited to the following main requirements:
- (1) You shall not use false or misleading header information;
- (2) Your "From", "To," "Reply-To," and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message;
- (3) You shall not use deceptive subject lines and your subject line must accurately reflect the content of the message;
- (4) You shall clearly and conspicuously display that your message is an advertisement (follow the CAN-SPAM Act guidance);
- (5) You shall tell your recipients where you’re located: Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations; Tell recipients how to opt out of receiving future email from you;
- (6) Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but You must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.
- (7) You shall honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from You, You can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.
9. Disclaimer – No Warranties and Limitation of Mailify Liability
9.1. No warranties.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MAILIFY, AND ITS AFFILIATES, PARTNERS, AND SUPPLIERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MAILIFY OR THROUGH THE MAILIFY SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
9.2. "As is" and "As available" and "With All Faults".
YOU EXPRESSLY AGREE THAT THE USE OF THE MAILIFY SERVICES IS AT YOUR SOLE RISK. THE MAILIFY SERVICES, END USER SUBMISSIONS AND ANY THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MAILIFY SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.
9.3. Platform Operation and Content.
MAILIFY, ITS SUPPLIERS, LICENSORS, AFFILIATES, AND PARTNERS DO NOT WARRANT THAT THE MAILIFY MATERIALS, END USER SUBMISSIONS, SERVICES, OR ANY OTHER INFORMATION OFFERED OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
9.4. Limitation of Liability and Damages - Indemnification
9.4.1. Limitation of Liability and Damages
UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL MAILIFY OR ITS AFFILIATES, CONTRACTORS, DIRECTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE MAILIFY SERVICES AND END USER SUBMISSIONS ON THE MAILIFY PLATFORM, OR ANY OTHER INTERACTIONS WITH MAILIFY, EVEN IF MAILIFY OR A MAILIFY AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, MAILIFY' LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
IN NO EVENT SHALL MAILIFY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE MAILIFY SERVICES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE GREATER OF THE AMOUNT OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID FOR THE MAILIFY SERVICES IN THE 12 MONTHS PRIOR TO THE ACTION OR CLAIM GIVING RISE TO THE LIABILITY.
THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN MAILIFY AND RECEIVED BY YOU THROUGH THE MAILIFY SERVICES.
9.4.2. Indemnification and hold harmless
You agree to indemnify and hold Mailify, its subsidiaries, affiliates, officers, agents, representatives, successors, principals and other partners and employees harmless from any loss, liability, claim or demand, including reasonable attorney's fees, made by any third party due to or arising out of your use of the Services set forth in this Agreement and/or arising from a breach of this Agreement and/or any breach of Your representations, obligations and warranties set forth above. Mailify reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, and You shall not, in any event, settle any matter without the written consent of Mailify.
10 - Termination– suspension
Mailify shall not be liable for any failure to perform or delay in the performance of its obligations under this Agreement due to causes beyond its control, including without limitation, interruptions of power or telecommunications services, failure of its vendors, acts of nature, governmental actions, fires, floods, natural disasters, or labor disputes.
You agree that Mailify, in its sole discretion and for any or no reason, may terminate any End User account You may have on the Mailify platform or Your use of the Mailify Services, and remove and discard all or any part of Your account or any End User submission, at any time, with or without notice. You agree that any termination of Your access to the Mailify Services or any account You may have or portion thereof may be effected without prior notice, and You agree that Mailify shall not be liable to You or any third-party for any such termination. Mailify does not permit infringing activities, including any violations of the United States Copyright Act, and Mailify reserves the right to terminate access to the Mailify Services, and remove all content submitted, by any persons who are found to be infringers. Any suspected fraudulent, abusive, or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Mailify may have at law or in equity.
If You are dissatisfied with the Mailify Services, please let us know by e-mailing at firstname.lastname@example.org. Your input is important and valuable to us. Your only other remedy with respect to any dissatisfaction with (a) the Mailify Services, (b) any term of this Agreement, (c) any policy or practice of Mailify in operating the Services, or (d) any content or information transmitted through our Services, is to terminate this Agreement and your account. You may terminate this Agreement at any time by closing your account, discontinuing your use of any and all parts of the Mailify Services, and providing Mailify notice of termination by e-mailing us email@example.com
11 – Services and Agreement Modifications
Mailify, in its sole discretion shall have the right to modify and/or discontinue the Services, whether temporarily or permanently, with or without notice to You, and Mailify shall not be liable to You or any third party for any such modification and/or discontinuance of the Services. Mailify further reserves the right to make revisions, modifications, additions, deletions or any such changes to this Agreement at its sole discretion, at any time, with or without notice to its End Users. In the event of a material change, you shall nevertheless have the option to terminate the Services subscription within 30 days of such material modification and change becoming effective. Your continued use of any part of the Services after 30 days following the posting of such changes or modifications will constitute Your acceptance of such changes or modifications.
12 - Severability
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
13 - Waiver
No failure of either party to pursue any remedy resulting from a breach of this Agreement by the other party shall be construed as a waiver of that breach, nor as a waiver of any subsequent or other breach unless such waiver is signed and in writing.
14 – Governing Law and Jurisdiction
The terms of this Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its conflict of laws principles. Any legal action, suit, or proceeding arising from or relating to this Agreement shall be brought and maintained in the appropriate court located in and with jurisdiction over New York County, New York and the parties hereby submit to the jurisdiction thereof.
15 – Confidentiality of messages and Privacy of End User Personal Information
If necessary, Mailify can sign a personal data processing agreement with the End User to ensure compliance with the GDPR - European Union reglementation. If you would like to sign it with Mailify, please send an e-mail at : firstname.lastname@example.org
Mailify agrees not to edit or disclose any contents of any messages sent by an End User to any third party recipient without End User's prior permission, unless (i) as required by law; (ii) in compliance with legal authorities or proceeding; (iii) to enforce this Agreement; and/or (iv) to protect the rights and/or property of Mailify, its licensors or any other third party. You nevertheless acknowledge and agree that technical processing of the messages may be required in order to send and receive such message, to conform to the technical requirements of connecting networks, to conform to the limitations of the Services and their equipment, to conform to other similar technical requirements.
Mailify may provide your personal information to companies that provide services to help us with better providing our Services and activities to End User, such as offering customer service. These companies are authorized to use Your personal information only as strictly necessary to provide these services to us. We follow generally accepted standards to protect the personal information submitted to us, both during transmission and once we receive it. We may share personal information with third parties (including regulatory or law enforcement authorities) if deemed necessary for legal or investigative matters. We may use Your contact information for delivery of announcements and specific marketing offers and messages in relation to our Services, from which a End User may opt-out at any time.
Mailify Services are provided in the United States of America and are governed by the privacy laws of that jurisdiction. These laws may be different than other locations worldwide for international End Users of Mailify and our Services.
For any inquiries in relation to this Agreement, please email us at: email@example.com