Terms of Service

Please read these Mailberry Terms of Service carefully. This website (the “Site”) is operated by Mailberry Inc. (which, together with its subsidiaries and affiliated entities, are referred to as “Mailberry”); the terms “we” “us” and “our” refer to Mailberry.

Mailberry provides an online platform which allows users to create, send and manage email marketing campaigns, among other things (the “Services”). These Terms of Service (the “Terms”), including those additional terms and conditions and policies referenced herein establish the terms and conditions under which you are allowed to use the Site and the Services.

IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SITE OR SERVICES. WE MAY UPDATE OR MODIFY THESE TERMS FROM TIME TO TIME AND WILL POST THEM. BY ACCESSING OR USING THE SITE OR THE SERVICES THEREAFTER, YOU AGREE TO BE BOUND BY SUCH UPDATED TERMS AND IF YOU DO NOT AGREE, YOU SHOULD NOT CONTINUE TO USE THE SERVICES.

1. General Terms and Conditions

1.1 Account

To use the Services, you must sign up for an account. When you sign up for an account a legal agreement between you and Mailberry (the “Agreement”) is formed, and the Subscription Term will begin. The Subscription Term will continue for as long as you have a Mailberry account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first. We reserve the right to refuse service, close accounts, and change eligibility at any time. We may, in our sole discretion, limit or cancel accounts. These restrictions may include accounts that use the same billing and/or shipping address.

1.2 Qualifications
You represent and warrant that you meet the following qualifications: (1) if you are an individual person, you are at least the age of majority in your state or province of residence, or (2) if you sign up for an account on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf.

1.3 Registration
You agree to provide true, accurate, current and complete information about yourself and your organization, as applicable, as requested in the account registration form and elsewhere, and you agree to update such information if it changes.

1.4 Account Access and Authorized Users
You may access and use the Service and access your Mailberry account (the “Account”) in accordance with these Terms. We may, in our discretion, permit you to authorize additional users to access and use your Account for your benefit. You, and any such additional users, are referred to as “Authorized Users”. You will be responsible for each Authorized User’s use of your Account, and each Authorized User’s compliance with this Agreement.

1.5 Login Credentials
You will require that all Authorized Users keep their login credentials strictly confidential and not share such information with any unauthorized person. Mailberry will not have any liability under this Agreement for actions taken using your login credentials, including any unauthorized use or access caused by misuse or misappropriation of such user IDs and passwords. You will be responsible for restricting access by any Authorized User who is no longer authorized to access the Services.

1.6 Communication With You
We reserve the right to send messages to you to (a) inform you of changes or additions to the Site, the Products, this Agreement or the Fee Schedule (defined below), (b) to inform you of violations of this Agreement or actions relating to your privilege to access and use the Site or the Products, (c) to inform you of any other matter related to the Site, the Products or this Agreement or (d) for marketing and other purposes. Nothing in this provision shall require or obligate us to send any notice if no notice is required elsewhere in this Agreement. You may unsubscribe from our marketing communications at any time, although you will continue to receive transactional messages from us. By entering into this agreement, you acknowledge that we may contact you via telephone (either by a live person, automatic dialer, pre recorded message or a combination of the foregoing) to discuss the products and you consent to such contact. Further, you consent to receive such phone calls at the telephone number you entered on the site.

2. Use of the Services; Prohibited Uses

Prohibited Uses- You may use the Website only for lawful purposes and in accordance with these Terms of Use.

You agree not to use the Website:

  • In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
  • For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
  • To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Mailberry set out in these Terms of Use.
  • To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
  • To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
  • To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Website, or which, as determined by us, may harm the Company or users of the Website, or expose them to liability.

Additionally, you agree not to:

  • Use the Website in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
  • Use any robot, spider, or other automatic device, process, or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
  • Use any manual process to monitor or copy any of the material on the Website, or for any other purpose not expressly authorized in these Terms of Use, without our prior written consent.
  • Use any device, software, or routine that interferes with the proper working of the Website.
  • Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer, or database connected to the Website.
  • Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
  • Otherwise attempt to interfere with the proper working of the Website.

2.1 Your Use of the Services; Service Limits

The Services are intended to be utilized for your own personal or business use. You will not (and will not permit any third party to): (a) sell, rent, lease, license, distribute, provide access to, sublicense, or otherwise make available the Services to a third party (except as expressly set forth in Agreement) or in a service bureau or outsourcing offering.

You agree that we may establish general practices and limits concerning use of the Services, including the maximum number of messages or campaigns that may be distributed by you and/or the maximum size of any messages or campaigns that may be transmitted by means of the Services. We reserve the right to modify, revise, suspend or discontinue any part of the Service, in whole or in part, either temporarily or permanently and with or without notice, and you acknowledge that we are not obligated to support or update the Service in any manner. If we discontinue any function of the Service in its entirety that you are using, we will provide you with advance notice and an opportunity to cancel your Account.

2.2 Prohibition on Spam; Permission Practices

You agree that you will not use the Services to send unsolicited email messages (sometimes called “spam”). You are responsible for ensuring that your use of the Services do not generate a number of spam or other complaints in excess of industry norms. We may terminate or suspend your Account or suspend if we determine that your level of spam or other complaints is higher than industry norms, as determined by us in our sole discretion. As a matter of privacy, we will not share with you information about those recipients who complain about your use of the Services or file a spam report against you.

a) Recipients

You agree to import, access or otherwise use only contact lists in connection with the Services for which all listed parties have consented to receive correspondence from you. It is not sufficient consent to receive email correspondence from you if a person or organization participates in a survey or registers for an event, clicks “Like” on your Facebook® page, or “follows” you on Twitter. You agree not to send messages through the Services to distribution lists, newsgroups, publicly available press or media addresses or purchased email addresses. We reserve the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email and/or other unauthorized email messages or campaigns from entering, utilizing or remaining within our network.

b) Sender

In your use of the Services, you shall represent yourself or your organization accurately and will not impersonate any other person, whether actual or fictitious. You agree that you are the sole or designated “sender” (as such term is defined in the United States CAN-SPAM Act of 2003 and any rules or regulations adopted under such act (the “CAN-SPAM Act”)) of any message sent by you using the Services. Similarly, for messages sent to Canadian email accounts, you are the sole person sending or causing or permitting the message to be sent by you using the Services (within the meaning of Canada’s Anti-Spam Legislation, S.C. 2010, c. 23 (“Canada’s Anti-Spam Legislation”). You agree that for any email message sent by you using the Services, (i) the “from” line of any email message sent by you using the Services will accurately and in a non-deceptive manner identify your organization, your product or your service, (ii) the “subject” line of any email message sent by you using the Services will not contain any deceptive or misleading content regarding the overall subject matter of the email message, and (iii) you will include your valid physical address, which, if you are located in the United States, may be a valid post office box meeting the registration requirements established by the United States Postal Service.

c) Unsubscribe

Every email message sent using the Services must contain an “unsubscribe” link that allows contacts to remove themselves from your mailing list. You agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within 10 days of submission and update the email addresses to which messages are sent through your Mailberry Account. You cannot 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 unsubscribe request. As required under the CAN-SPAM Act and other applicable laws, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your Account and this Agreement.

d) No Messages if Recipient has Opted Out

You agree that you shall not utilize the Services to send any message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose) (a “commercial electronic mail message” as defined in the CAN-SPAM Act or Canada’s Anti-Spam Legislation) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting.

2.3 Prohibited Uses and Content

a) In addition to other prohibitions as set forth in the Terms of Service, you are prohibited from using the site or its content:

(a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; (k) to offer content, Services or services related to loans, credit and/or debt management, adult entertainment, pharmaceutical Services, multi-level marketing, affiliate marketing, money and lead generating opportunities, gambling, lottery, sweepstakes, real estate, cryptocurrencies, or medical or nutritional supplements; or (l) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.

b) Copyright Infringement

We take claims of copyright infringement seriously. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any materials accessible on or from the Website infringe your copyright, you may request removal of those materials (or access to them) from the Website by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), the written notice (the “DMCA Notice”) must include substantially the following:

  • Your physical or electronic signature.
  • Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Website, a representative list of such works.
  • Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
  • Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
  • A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the written notice is accurate.
  • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

Our designated copyright agent to receive DMCA Notices is:

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.

Please be aware that if you knowingly materially misrepresent that material or activity on the Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

If you believe that material you posted on the Website was removed or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a “Counter Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter Notice must include substantially the following:

  • Your physical or electronic signature.
  • An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
  • Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
  • A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
  • A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Website may be found) and that you will accept service from the person (or an agent of that person) who provided the Website with the complaint at issue.

The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter Notice.

Please be aware that if you knowingly materially misrepresent that material or activity on the Website was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.

It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.

2.4 Limitations

You understand that not all messages or campaigns sent through use of the Services will be received by or will be capable of being viewed by their intended recipients or will be viewable by your recipients in the same way they appear in our Service environment. You further understand that delivery of messages by means of Service may involve transmissions over various networks, and that the messages (including images and text contained therein) could be reformatted or otherwise revised to conform to the formatting or technical requirements of such networks. You also understand and agree that messages exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short.

2.5 Monitoring and Removal

Although we have no obligation to monitor the content provided by you or your use of the Services, we may do so and may block any messages or campaigns, remove any content, including websites, surveys, event registrations, and social campaigns, or prohibit any use of Services that we believe may be in violation of any provision of this Agreement. In no case will the foregoing make us responsible or liable for compliance with any such laws or obligations, for which you remain solely responsible and liable. We do not undertake to review material before it is posted on the Website, and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, we assume no liability for any action or inaction regarding transmissions, communications, or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.

We may likewise terminate or suspend your access to all or part of Mailberry for any or no reason, including without limitation, any violation of these terms of use.

Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website. YOU WAIVE AND HOLD HARMLESS MAILBERRY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.

2.6 Accessing the Website and Account Security

We reserve the right to withdraw or amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.

You are responsible for both:

  • Making all arrangements necessary for you to have access to the Website.
  • Ensuring that all persons who access the Website through your internet connection are aware of these Terms of Use and comply with them.

To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current, and complete. You agree that all information you provide to register with this Website or otherwise, including, but not limited to, through the use of any interactive features on the Website, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Website or portions of it using your user name, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use.

2.7 AI Generated Content

You agree that you will use our services as it relates to Generated Content, in a manner that is consistent with the OpenAI mission and OpenAI Charter, which is incorporated herein by reference, as determined by OpenAI in its sole discretion. We expect every user to use this tool in a reasonable and responsible manner and there are some limits and restrictions that OpenAI requires and every user is required to follow these guidelines mentioned below.

You further agree that you will make reasonable efforts to reduce the likelihood, severity, and scale of any societal harm caused by your use of the Services (including the use and sharing of Generated Content) by following the OpenAI API Usage Guidelines. Mailberry and OpenAI may request information from you regarding your efforts to reduce safety risks, and you agree to provide such information.  Such information may be used to assess compliance with these Terms as well as to inform improvements to the Services (including any components thereof).

You agree not to do any of the following:

  • Post, upload, publish, submit or transmit any User Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
  • Distribute, sell, lend, transfer or grant any rights in or to any or all of the Services, (except for Generated Content as permitted under this Agreement);
  • Create any software that functions substantially the same as the Services (including any component thereof) and offer it to third parties;
  • Modify, alter, tamper with, repair or otherwise create derivative works (except as permitted by Section 7(e)) of the Services, or attempt to do so;
  • Use the Services in connection with any spyware, malware, virus, worm, trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device;
  • Use the Services to discover any underlying components of Mailberry’s or its licensors’ models, algorithms, and systems, such as exfiltrating the weights of any of Mailberry’s or its licensors’ models by cloning via logits;
  • Remove, obscure, or alter any notice, including any notice of intellectual property right appearing on or contained within the Services (including any component thereof);
  • Interfere or attempt to interfere in any manner with the functionality or proper working of the Services (including any component thereof);
  • Use, display, mirror or frame the Services or any individual element within the Services, Mailberry’s name, any Mailberry trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Mailberry’s express written consent;
  • Access, tamper with, or use non-public areas of the Services, Mailberry’s computer systems, or the technical delivery systems of Mailberry’s providers;
  • Attempt to probe, scan or test the vulnerability of any Mailberry system or network or breach any security or authentication measures;
  • Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Mailberry or any of Mailberry’s providers or any other third party (including another user) to protect the Services;
  • Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Mailberry;
  • Use web scraping, web harvesting, or web data extraction methods to extract data from the Services (including Generated Content), or Mailberry’s, its licensors’, and their affiliates’ software, models, or systems.
  • Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
  • Use any meta tags or other hidden text or metadata utilizing a Mailberry trademark, logo URL or product name without Mailberry’s express written consent;
  • Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
  • Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
  • Decipher, decompile, disassemble, reverse assemble, reverse compile, decompile, translate, or reverse engineer any component or software used to provide the Services, discover the source code of any component of the Services, or attempt to do any of the foregoing;
  • Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
  • Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
  • Impersonate or misrepresent your affiliation with any person or entity;
  • Provide or upload any information to the Services that is “Protected Health Information” as defined under the Health Insurance Portability and Accountability Act;
  • Use the Services in a way that causes societal harm including, but not limited to, (i) misleading end users that any Generated Content was human-generated for generative use cases that do not involve a human in the loop, (ii) generating spam, and (iii) generating content for dissemination in electoral campaigns;
  • Use the Services in a way that violates any applicable law or regulation including, but not limited to, (i) illegal activities such as child pornography, gambling, piracy, violating copyright, trademark or other intellectual property laws, (ii) accessing or authorizing anyone to access the Services from an embargoed country as prohibited by the United States government, and (iii) threating, stalking, defaming, defrauding, degrading, victimizing, or intimidating anyone for any reason; and
  • Encourage or enable any other individual to do any of the foregoing.

Mailberry is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

3. Billing and Payment

3.1 Fees

a) Fee Schedule

You will be responsible for the fees applicable to your Account and your use of the Services. Fees will be billed for the periods applicable to your subscription (e.g. monthly, quarterly, annually) even if you are not actively using the Services.

The Fee Schedule is subject to change at any time in our sole discretion, and if you do not agree to any such changes, you should contact us to cancel your Account. We will use good faith efforts to notify you prior to the effectiveness of any significant change to the Fee Schedule, but you are responsible for reviewing the Fee Schedule from time to time and remaining aware of the fees charged by us and any applicable discounts.

 b) Disputes

Notwithstanding anything set forth herein to the contrary, any disputes about any charges to you under this Agreement must be submitted to us in writing within 15 days of the date such charges are incurred. You agree to waive all disputes not brought within the 15 day period, and all such charges will be final and not subject to challenge.

3.2 Payments & Taxes

When you sign up for an Account, you agree to periodic recurring billing, for the applicable subscription period, starting on the date you sign up. Billing occurs on the same day each billing period, based on the date that you started your Subscription Term. Payments are due for any period on the same or closest date to the day you made your first payment. If any part of a month is included in the Subscription Term, then payment is required for the full month. If you exceed your self-selected usage limits for your Account plan, then you’ll have to pay additional charges for the prior billing cycle on or before the next payment date. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

4. Terms and Termination

4.1 Subscription Term

The Service is made available to you on a subscription basis for the term you have selected when signing up for the Service (“Subscription Term”). The Subscription Term will start when you sign up for your Account, and will automatically renew for additional, successive Subscription Terms until terminated.

4.2 Termination

Once your Account is terminated, (i) we will cease providing you with the Services, and you will no longer be able to access your Account. and (ii) you acknowledge and agree that we may permanently delete your Account and all the data associated with it. Usernames are unique and can only be used once. If your account has been terminated, the username will no longer be available for use on any future accounts and cannot be reclaimed. If there are any outstanding fees owed by you at the date of termination, you will receive one final invoice via email. Once that invoice has been paid in full, you will not be charged again. If we terminate your Account without cause, we’ll refund a prorated portion of your prepayment for a subscription period. We won’t refund or reimburse you in any other situation, including if your Account is suspended or terminated for cause, such as for a breach or violation of the Agreement.

We may, in our sole discretion, whether to comply with applicable law or regulation or otherwise, terminate your Account or your access to or use of the Services, disable your Account and/or delete or confiscate all or a portion of your contacts, files, and content, in each case at any time, with or without cause, with or without notice and without refund. We shall have no liability to you or any third party because of such termination or action, except that we will refund a pro rata portion of any prepaid amounts if we terminate you without cause. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. Upon request within 30 days of your termination, we will provide the list of unsubscribe requests from your Mailberryaccount to you. Under the CAN-SPAM Act, Canada’s Anti-Spam Legislation and the GDPR, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your MailberryAccount and this Agreement.

4.3 Survival of Certain Provisions

The following Sections will survive any expiration or termination of this Agreement: Billing and Payment, Termination, Survival of Certain Provisions, MailberryContent, No Rights in Service or Software, Your Information and Contacts, Warranty Disclaimer, Remedies, Release, Limitations of Liabilities,Indemnification and General Provisions.

4.4 Suspension of Service

In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Mailberry reserves the right to suspend provision of the Services: (a) if you are overdue on a payment; (b) if we deem such suspension necessary as a result of your breach of any terms of the Agreement, (c) if we reasonably determine suspension is necessary to avoid material harm to Mailberry or its other customers; or (d) as required by law or at the request of governmental entities.

We may likewise terminate or suspend your access to all or part of Mailberry for any or no reason, including without limitation, any violation of these terms of use.

5. Proprietary Rights; Restrictions

5.1 Mailberry Content and Authorized Use

a) Mailberry Content

Except for your contact lists and content, all content made available through the Services, including any images made available through any email or tools provided by Mailberry, designs, templates, text, graphics, images, video, information, software, audio and other files, and their selection and arrangement, and all software used to provide the Services (collectively with the Licensed Images, the “MailberryContent”), are the property of Mailberry or its licensors. No Mailberry Content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted, sold or exploited for any purpose in any form or by any means, in whole or in part, other than as expressly permitted in this Agreement. You may not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any Mailberry Content.

 b) Intellectual Property Rights

The Website and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by the Company, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

These Terms of Use permit you to use the Website for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Website, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your Web browser for display enhancement purposes.
  • You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
  • If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
  • If we provide social media features with certain content, you may take such actions as are enabled by such features.

You must not:

  • Modify copies of any materials from this site.
  • Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
  • Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.

You must not access or use for any commercial purposes any part of the Website or any services or materials available through the Website.

If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Website in breach of the Terms of Use, your right to use the Website will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws.

 c) Trademarks

The Company name, the terms Mailberry, the Company logo, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans on this Website are the trademarks of their respective owners.

5.2 No Rights in Service or Software

We own all proprietary rights in the Service, including, but not limited to, patents, trademarks, service marks, trade secrets, copyrights, and other intellectual property rights. This is an Agreement for Services and access to the Mailberry Site, and except as expressly set forth herein, you are not granted a license to any software by this Agreement and nothing on the Site shall be construed to confer any grant or license of any intellectual property rights in the Service or any software, whether by estoppel, by implication, or otherwise. You 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, or found at or through the Services, or any software, documentation, or data related to Services (“Software”); remove any proprietary notices or labels from the Site or any Software; modify, translate, or create derivative works based on the Services or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or any Software.

5.3 Your Information and Content

a) Your Information

In using the Services, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to us and we may collect information about your use of the Services. We may use this information in accordance with our Privacy Policy and relevant notices, if any, provided at the point of information collection or use.

 b) Your Content and Contacts

We will also obtain any information that you provide to us in connection with your use of Services, such as contact lists (including email addresses and phone numbers of your contacts) and content. We acknowledge your ownership rights in such contact lists. As more fully described in our Privacy Policy, we will never sell or rent your contact lists to anyone without your permission. You hereby grant to us a revocable, non-exclusive, royalty-free, worldwide license, with the right to sublicense, to use, reproduce, publish, distribute, perform and display your contacts and content only as required by us to provide the Services, .and, where applicable, as described in our Privacy Policy. You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of your contacts and content, and you are responsible for maintaining, securing and storing your contacts and content in accordance with applicable law and any contractual obligations you may have (including this Agreement). You represent and warrant that you own or have secured all rights and interest in and to your contacts and content required for us to use your contacts and content as contemplated by this Agreement.

 c) Aggregated Statistics.

Notwithstanding anything to the contrary in this Agreement, Mailberry may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Mailberry and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Mailberry. You acknowledge that Mailberry may compile Aggregated Statistics based on Customer Content input into the Services. You agree that Mailberry may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.

6. Compliance With Laws

6.1 The Site and the Services shall only be used for lawful purposes and you shall use the Site and Services only in compliance with this Agreement and all other applicable U.S., state, local and international laws in your jurisdiction, including, as applicable:

  • the CAN-SPAM Act;
  • Canada’s Anti-Spam Legislation;
  • California Consumer Privacy Act (“CCPA”);
  • the European Union’s General Data Protection Regulation 2016/679 (“GDPR”);
  • any policies and laws related to unsolicited emails, spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws;
  • laws relating to advertising, sales or promotional efforts or practices, redemption, refunds and provision of your Services or services;
  • laws that govern false, unfair and deceptive practices, coupons, gift cards/certificates, defective Services or services, unclaimed property, alcohol or tobacco, health and safety, fire, and hygiene standards;
  • laws that govern lotteries, sweepstakes, contests and promotions; and
  • laws that govern the collection of donations and charitable giving.

You further agree to refrain from unethical, false or misleading advertising, promotions or sales efforts and practices in connection with your use of our Site or Services.

You are responsible for determining whether our Site or Services are suitable for you to use in light of any regulations, such as the Health Insurance Portability and Accountability Act (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”), European data privacy laws, or other laws. If you are subject to a particular regulation and you use our Site or Services, then we will not be liable if our Site or Services do not meet those requirements.

6.2. Additional restriction on use of the services

You agree to comply with the following in connection with your use of the Site and the Services:

  • You may not access or use the Site or the Services in a way that uses technology or other means to access, index, re-render, frame, mirror, truncate, add to, inject, filter or link to the Site or the Services that is not authorized by us (including by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized use, download, linking, framing, reproduction access to, or distribution of the Site or the Services).
  • You may not use any deep-link, page-scrape, robot, crawl, index, spider, offline reader, click spam, macro programs, internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, index, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor any portion of the Site or the Services for any unauthorized purpose.
  • You may not use the Site or the Services in a way that, to be determined in our sole discretion, damages, disables, overburdens, impairs, or gains unauthorized access to the Site or the Services, including our servers, computer network, or user accounts.
  • You may not use the Site or the Services in a way that removes, modifies, disables, blocks, obscures or otherwise impairs any advertising in connection with the Site or the Services..
  • You may not copy, display, distribute, download, license, modify, publish, re-post, reproduce, reuse, sell, transmit, use to create a derivative work, or otherwise use the content of the Site or the Services for public or commercial purposes without our express written permission.
  • You shall not interfere with or disrupt the Site or any related Mailberry websites or servers or networks connected to the Site or the Services.
  • You shall not restrict or inhibit any other user from enjoying and using the Site or the Services.
  • You shall not use the Site or the Services in violation of applicable law or third party rights.(including third party terms of service), and shall not use the Site or the Services for hosting content (for example, images and documents) that infringes on the intellectual property rights of others.
  • You shall not repeatedly upload and remove unique email addresses or otherwise try to manipulate data in an attempt to circumvent our Fee Schedule or other billing procedure
  • You shall not use documents and images hosted by us on servers controlled by us for any purpose whatsoever other than in connection with the Services. If you own the document or image, you can use it outside of the Services provided it is not hosted by us.
  • You shall not include any incentives (for example, coupons, discounts or awards) in any messages you send by means of the Site or the Services that encourage a recipient to forward the message to another recipient, other than as expressly encouraged and permitted within the applicable Product.

7. Contracts' and Customers' Privacy

7.1 Sensitive Information

You will not import or incorporate into any contact lists or other content you upload to our servers any of the following information: social security numbers, national insurance numbers, credit cards, passwords, security credentials, or sensitive personal or health information of any kind.

8. Warranty Disclaimer; Remedies; Release

YOU EXPRESSLY AGREE THAT THE SITE AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SITE OR THE SERVICES AND ANY RELIANCE BY YOU UPON THE SITE OR THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF THE SITE OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR COMPLETELY SECURE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE.AND NON INFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.

WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES.

IN ADDITION, WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (a) THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN US, OR (b) ANY EVENT HOSTED, DONATION SOLICITED, THE RESULTS OF ANY SURVEY, OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING OUR CUSTOMERS.

NO CLAIM MAY BE ASSERTED BY YOU AGAINST US MORE THAN 3 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR THE SERVICES SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SITE OR THE SERVICES.

TO THE EXTENT APPLICABLE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT POSTED ON YOUR SITE OR IN ANY MATERIALS YOU SEND USING.THE SITE OR THE SERVICES, (b) THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR.RESPECTIVE CONTACTS AND (c) ANY PROBLEMS THAT MAY ARISE FROM ANY REMOTE ACCESS TO YOUR COMPUTERS OR OTHER SYSTEMS YOU PROVIDE TO OUR PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (IF YOU ARE A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER.JURISDICTION (IF YOU ARE A RESIDENT OF SUCH JURISDICTION).

9. Limitations of Liability

UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL MAILBERRY OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “MAILBERRY”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF MAILBERRY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF MAILBERRY YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE SERVICES IN THE 6 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM.

10. Indemnification

In addition to your obligations under these Terms of Use, you expressly agree to indemnify and hold harmless Maillberry from and against any claim, suit, demand, loss, liability, damage, action, proceeding or fees (including reasonable attorneys’ fees), arising out of or relating to your failure to properly describe or deliver goods or services, or to comply with your legal or contractual obligations to your customers or arising out of or relating to your violation of these Terms of Use or your use of the Website, including, but not limited to, your User Contributions, any use of the Website’s content, services, and products other than as expressly authorized in these Terms of Use, or your use of any information obtained from the Website.

11. Thirty Party Apps and Integrations

The tools and services described in this section are referred to as “Third Party Services”.

11.1 Optional Tools

We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.

You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.

Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).

We may also, in the future, offer new services and/or features through the website, including the release of new tools and resources. Such new features and/or services shall also be subject to these Terms.

11.2 Third Party Links

Certain content, products and services available via our Service may include materials from third-parties.

Third-party links on this site may direct you to third-party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy and we do not warrant and will not have any liability or responsibility for any third-party materials or websites, or for any other materials, products, or services of third-parties.

We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third-party websites. Please review carefully the third-party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third-party products should be directed to the third-party.

11.3 Links From the Website

If the Website contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to this Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

12. International Use; Prohibited by Law

In recognition of the global nature of the Internet, you agree to comply with all local rules where you reside or your organization is located regarding online activities, email and the Site or the Services. More specifically, but without limitation, you agree to comply with all applicable laws regarding the transmission of technical data, and email sending or email deployment, exported to or from the United States or the country in which you reside. The Site or the Services are controlled and operated by us from the United States (although we may share data with third parties around the world to assist us in providing the Site or the Services) and we make no representation that the Site or the Services are appropriate or available for use in other locations. Those who access the Site or the Services from other locations do so at their own initiative and risk, and are fully responsible for compliance with all applicable laws in those locations. We do not offer the Site or the Services where prohibited by law.

For the purposes of European Directive 95/46/EC, the General Data Protection Regulation 2016/679) (once in effect) (“GDPR”) and any applicable national implementing laws in your jurisdiction, and with respect to your contacts’ or customers’ personal data, you acknowledge and agree that you are the Controller (as that term is defined in the GDPR), and we are a Processor (as that term is defined in the GDPR) of such personal data. You also acknowledge and agree that you are responsible for complying with all obligations of a data controller under applicable law (including the GDPR).

To the extent the GDPR applies to you, you represent and warrant that in using our Services, you will clearly describe in writing how you plan to use any personal data collected and you will ensure you have a legitimate legal basis to transfer such personal data and email addresses to us and that you have the necessary permission to allow us to receive and process personal data and send communications and emails to that individual on your behalf.

13. General Provisions

13.1 Entire Agreement

The Terms of Use and our Privacy Policy constitute the sole and entire agreement between you and Mailberry regarding the Website and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website.

13.2 Changes & Modifications

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter.

Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

We may update the content on this Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material.

13.3 Assignment

You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity in our sole discretion.

13.4 Severability

If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision shall be changed by the court or by the arbitrator and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by notice to the other party.

No waiver by the Company of any term or condition set out in these Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

13.5 Governing Law

This Agreement shall be governed by the laws of the United States and the State of California, without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The federal courts of the United States in the Northern District of California and the state courts of the State of California located in Los Angeles, California will have exclusive jurisdiction over any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts.

13.6 Arbitration

You hereby submit to the exclusive jurisdiction of the American Arbitration Association (“AAA”) in connection with any dispute relating to, concerning or arising out of this Agreement, whether in contract, tort, fraud, misrepresentation or any other legal theory. The arbitration will be conducted before a single arbitrator and will be held at the AAA location in Los Angeles, California.

(a) ARBITRATION MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CUSTOMERS, SUBSCRIBERS OR USERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.

(b) Only a court, and not an arbitrator, shall determine the validity and effect of the class action waiver. Even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any new claims later asserted in that lawsuit.

(c) Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this paragraph. In the event you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing, administrative, and arbitrator fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.

(d) No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. If you initiate a litigation or any other proceeding against us in violation of this paragraph, you agree to pay our reasonable costs and attorneys’ fees incurred in connection with its enforcement of this paragraph.

(e) The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

Limitation on Time to File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE WEBSITE MUST BE COMMENCED WITHIN SIX MONTHS AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

13.7 Attorneys Fees

If any action or proceeding is commenced to enforce this Agreement or any right arising in connection with this Agreement, the prevailing party in such action or proceeding will be entitled to recover from the other party the reasonable attorneys fees, costs and expenses incurred by such prevailing party in connection with such action or proceeding.

13.8 Force Majeure Event

If either party is prevented from performing any of its obligations under this Agreement due to any cause beyond the party’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, war, strike, embargo, government regulation, civil or military authority, acts or omissions of carriers, transmitters, providers, vandals, or hackers, epidemic or other public health event (a “Force Majeure Event”) the time for that party’s performance will be extended for the period of the delay or inability to perform due to such occurrence. If any Force Majeure Event occurs, the affected party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event.

13.9 No Agency

The parties are independent contractors to one another. Nothing in this Agreement or otherwise shall create an employer-employee, agency, joint venture or partnership relationship. No employee, agent, consultant or assistant of either party shall be considered an agent of the other party.

13.10 Third Party Beneficiaries

Mailberry’s affiliates, underlying service providers, business partners, third-party suppliers and providers, account providers, licensors, officers, directors, employees, distributors and agents are expressly made third party beneficiaries of this Agreement. Except as set forth in the immediately preceding sentence, nothing express or implied in this Agreement is intended to confer, nor shall anything herein confer, upon any person other than the parties and the respective permitted successors or assigns of the parties, any rights, remedies, obligations or liabilities whatsoever.

14. Anti-Spam Policy

PLEASE READ THIS ANTI- SPAM POLICY (THE “ANTI-SPAM POLICY”) CAREFULLY BEFORE USING ANY SERVICES AVAILABLE AT MAILBERRY.COM (THE “SITE”) OR OFFERED BY OR ON BEHALF OF ITS AFFILIATES. IF YOU DO NOT ACCEPT THIS ANTI-SPAM POLICY, YOU ARE NOT AUTHORIZED TO USE THE SERVICES.

As an email service provider, Mailberry takes an active role in reducing spam and supporting regulatory and best-practice guidance that fosters a fair, respectful and effective email marketing community. In consideration of the many anti-spam laws in effect throughout the world and best practice guidance from industry leaders, we have created this anti-spam policy to simplify the requirements we place on our customers. Your adherence to this policy will help maintain a high reputation for our sending infrastructure which, in turn, will boost the deliverability and effectiveness of messages you send using our services.

Throughout this Anti-Spam Policy references to “Company” are references to Mailberry and references to “Customer” are to you, a user of the Services.

SECTION 1. DEFINITIONS.  In addition to terms defined elsewhere in this Anti-Spam Policy, the definitions below will apply to capitalized words in this Anti-Spam Policy.

  1. “Agreement” means, as applicable, either the: 1) Mailberry Terms of Use Agreement or 2) a superseding written agreement for use of the Services executed by and between Company and Customer.
  2. “Anti-Spam Laws” means any and all Laws regulating the transmission of electronic messages.
  3. “Contact(s)” means, other than Users, any identified or identifiable natural person: 1) whose information is stored, transmitted, or otherwise ‘processed’ (as defined by the GDPR) via the Services by Customer; and/or 2) to whom Customer sends, transmits, or otherwise engages with via the Services.
  4. “Customer List” is a list of Contacts uploaded to the Services or created on or via the Services.
  5. “Distribution Email Address” means an email address associated with a distribution list that enables a User to send an email to multiple recipients by sending that email to the single email address associated with the distribution list.
  6. “Permission” means permission obtained from an individual to receive communications from Customer, in compliance with Section 3 below, that was either: 1) obtained within the preceding 12 months; or 2) obtained at any time and ongoing communications have been sent to the individual over the course of the preceding 12 months.
  7. “Privacy Notice” means the Company’s Privacy Notice located in this Terms of Service, as updated from time to time.
  8. “Spam”, as used herein, is any message sent by a User: 1) to an individual who has not given the User their Permission to do so; and/or 2) is marked as “spam” or “junk” mail by the recipient, including via any ISP feedback loops.
  9. “Transactional Messages” will have the meaning ascribed by Anti-Spam Laws.
  10. “Transactional Email Feature” means the feature of the Services that allows a User to automatically send communications upon the occurrence of a trigger action.

 

SECTION 2. REQUIRED CONTENT

  1. Customer understands and agrees that Customer is the “sender” (as that term is defined by Anti-Spam Laws) of any emails sent by Customer via the Services.
  2. Unsubscribe Link. Unless expressly agreed by Company in advance in writing, Customer must ensure that all emails sent through Customer’s Account contain a Company (or other Company-approved) “unsubscribe” link, in form and substance satisfactory to Company, that: 1) allows Contacts to instantly and permanently unsubscribe themselves from the applicable Customer List, 2) presents unsubscribe instructions in a clear and conspicuous way, and 3) remains operational for a period of 30 days after sending the email. Customers must monitor, correct, and process unsubscribe requests immediately and ensure that Users do not remove, disable or attempt to remove or disable such links. Customer understands that instead of using the unsubscribe link provided, some Contacts may use other means to submit a request to Customer to opt them out of receiving such messages. In such cases, Customer agrees to unsubscribe any such Contact manually, by changing the Contact’s mailing status to “opt-out” within 10 business days of the opt-out request using the tools provided inside Customer’s Account.
  3. Contact Information. Each email must clearly and accurately identify the individual or organization that authorized the sending of the email (“Authorizing Party”). This means that if a Customer is sending messages on behalf of an Authorizing Party, the Authorizing Party must be identified. For example, if a marketing agency is sending an email on behalf of its client, the client must be identified. To the extent required by law, identification must include the correct legal name of the Authorizing Party, a registered business number, legitimate physical address, and contact details. All identification information should remain valid for at least 30 days after the email is sent.
  4. Other Required Information. Customers shall ensure that communications sent through Customer’s Account are truthful and include subject lines that are in no way false or misleading as to the nature of the content contained in the email. All emails must state the reason the Contact is receiving the message. For example, “You are receiving this message from ABC Company because you signed up for our email list at abc.com.”

 

SECTION 3. PERMISSION

  1. Customer Representations. Customer represents and warrants that Customer has provided all disclosures required by Law in conjunction with obtaining Contact’s Permission. Customer further represents and warrants that Customer has not used any false or misleading information, names, email addresses, subject lines, or other information for the purpose of or in connection with obtaining Contact’s Permission.
  2. Obtaining Permission. Customer must retain records of any Permissions received and shall provide such records to Company immediately upon request. Permissions must be obtained in one of the ways described below. A Contact:
  3. fills out or opts in via a web form subscribing to receive marketing communications from Customer; provided that the form does not contain any pre-selected fields;
  4. completes an offline form that expressly indicates their willingness to receive marketing communications from Customer;

 

iii.  gives Customer their business card; provided that Contact was informed that by providing the business card to Customer, Contact was indicating their willingness to receive marketing communications from Customer;

  1. has a clear relationship with Customer, as an individual that (a) pays dues or a subscription fee to belong to Customer’s organization, or (b) has purchased a good or service from Customer within the preceding 6 months, in the course of which Customer obtained that Contact’s email address and there is a reasonable expectation that the Contact would consent to receiving emails; or
  2. otherwise provides Customer with their express written permission to receive marketing communications from Customer.
  3. Scope of Permission. Customer shall not send emails to Contacts on any topic that exceeds the scope of the topic that Contact has given Customer Permission to email them about. Where a Contact has provided Permission for specific individual or organization to contact them, that Permission may not be transferred to another individual or organization. Any Permission obtained from a Contact will be exclusive to Customer and will not extend to Customer’s Affiliates, unless such Permission was also granted to such Customer Affiliate.

 

SECTION 4. APPROVALS, RESTRICTIONS, & COMPLIANCE

  1. Account Approval. Company may request specific information about Customer’s Permission practices and email marketing activities prior to allowing access to the Services and Company’s sending infrastructure. Should Company’s trained compliance team, in its reasonable discretion, find cause to delay or withhold access to the Services and Company’s sending infrastructure, Customer will be notified promptly. Customer may not send any emails using the Services until Customer’s Account has been reviewed by a member of Company’s trained compliance team.
  2. Bulk Uploads. Prior to any bulk and/or large Contact list uploads to the Services, Customer must obtain Company’s prior written approval, which may be withheld in Company’s sole discretion.
  3. Company API. The Services provide API Calls (“Calls”) to facilitate certain account activities without relying on the Services’ main application interface. These Calls are governed by the same policies set forth herein. The Customer and its Users shall not use the API to circumvent Company’s efforts to facilitate Permission-based sending via the Services. Company may dictate, in its sole discretion, permissible use of the API and Calls. Any improper use of the API, as solely determined by Company, will be grounds for immediate termination of Customer’s account.
  4. Prohibited Uses. There are some list collection methods, sending practices, and models of business which are irreconcilably at odds with Company’s Permission policy or which represent untenable risk to the reputation of Company’s sending infrastructure. Customer shall not:
  5. mail to Distribution Email Addresses, emails addresses copied or scraped from the internet (or to Contact email addresses otherwise programmatically obtained from any physical or electronic source); newsgroups, or purchased, loaned, or rented lists;
  6. mail to any Contacts obtained from a third party (unless such third party specifically obtained Permission from the Contact for Customer to mail them);

 

iii.  mail to co-promotion lists, where more than one potential sender is given access to email addresses collected without the recipient’s willful, sender-specific consent;

  1. use the Transactional Email Feature to send non-Transactional Messages to Contacts unless you have Permission to do so;
  2. use the Services to administer illegal contests, pyramid schemes, chain letters, multi-level marketing campaigns, or otherwise conduct any illegal activities; or
  3. take known demographic information and append it to information Customer obtains from a third party for the purpose of emailing an individual who has not otherwise provided Permission as required by this Anti-Spam Policy.
  4. Compliance. Customer acknowledges that the Services allow Customer to upload data related to Contacts and also to track Contacts engagement with emails sent using the Services. Customer represents and warrants that Customer has complied with all notice, disclosure, consent, and other requirements imposed by applicable Laws prior to uploading information about a Contact to Customer’s Account. Customer further represent and warrants that Customer shall comply with the Acceptable Use Policy, Agreement, and all applicable Laws in connection with Customer’s use of the Services.

 

SECTION 5. COMPANY’S RIGHTS AND OBLIGATIONS

  1. Contacts. Company will not use Contacts’ information for any purpose other than those related to the Services and as otherwise described in Company’s Privacy Notice.
  2. Monitoring. Company reserves the right to inspect and monitor Customer’s Account and Customer Content at any time, without notice, to ensure compliance with the terms of this Anti-Spam Policy. In connection with the foregoing, Customer agrees to promptly provide records and/or other information requested by Company. In addition, Company reserves the right, but has no obligation, to:
  3. scan every campaign for the existence of an unsubscribe link. If an unsubscribe link is not detected, Customer will be informed and required to include Company’s unsubscribe link before sending additional email messages or Customer Content via the Services.
  4. monitor and meter the number of kilobytes of data transferred when sending email messages.

 

iii.  monitor any and all Customer Content and Customer’s use of the Services to ensure compliance with this Anti-Spam Policy.

  1. Abuse Complaints & Remediation. Emails sent through the Services may generate abuse complaints from Contacts. Customer is responsible for ensuring that email campaigns sent from Customer’s Accounts do not generate a number of complaints in excess of industry norms. If Customer’s complaint rate exceeds industry norms, Company may take action to prevent or repair damage to the sending reputation of its sending infrastructure, including suspending Customer’s Account. In the event that Company sends Customer a notification regarding excessive spam complaints, Customer must respond to Company’s requests promptly and act in good faith by participating in the creation and/or execution of any remedy. If Customer is unresponsive, does not implement remediation measures in accordance with Company’s recommendations within thirty (30) days of Company’s notification to Customer, and/or Customer continues to experience high complaint rates (as determined by Company in its reasonable discretion), then Company may suspend Customer’s use of the Services until the issue is resolved or until the end of the period specified by the contract.
  2. Right to Terminate. Company may, in its reasonable discretion, remove any Customer Content, suspend, or terminate (without refund) Customer’s use of the Services for any actual breach of this Anti-Spam Policy at any time. For clarity, removal, suspension, or termination pursuant to this clause will not terminate Customer’s obligation to pay fees owed to Company.

Reporting Abuse

To report spam originating from mailberry.com please forward the message to abuse@mailberry.ai.

If you feel you have received SPAM from our customer, write to us at abuse@mailberry.ai. If we find that our anti-SPAM policy has been violated, we may terminate the violator’s account.

15. Privacy Policy

Mailberry, Inc. provides online tools and services for small businesses to create, send and manage email campaigns and other marketing activities (“Services”).

When you visit our website or subscribe to and use the Services, you voluntarily share certain personal information (which may identify you directly or indirectly) with us. When you use the Services, certain information about your devices and Services usage is automatically collected through cookies and other tracking technologies.

This privacy policy describes how we collect, use and share your personal and technical information and how you can exercise your privacy rights.

We use your information to provide and improve the Services. By using the Services, you agree to the collection and use of information in accordance with this policy and the Mailberry Terms of Service.

15.1 Information Collection and Use

  1. Personal Information

When you set up an account and use our Services, we may ask you to provide us with certain personally identifiable information that can be used to contact or identify you.

This personal information may include, but is not limited to:

  • Business contact information (e.g., email and physical addresses, first and last name, telephone number, company name, title).
  • Marketing information (e.g., contact preferences).
  • Account log-in credentials.
  • Customer support data (e.g., troubleshooting, help query communications).
  • Payment information (e.g., billing address).

We may use your personal information to contact you with newsletters, marketing or promotional materials and other information that may be of interest to you. You may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or the instructions provided in any email we send.

To use certain features in the Services such as creating and sending email campaigns through your account, you will upload a contact list of names and email addresses of individuals who have given you consent to use their personal information. You can create your contact list by importing contacts through a .csv or directly from your email client. We act as a processor of this information to provide the Services in accordance with our Terms of Service. You are solely responsible for obtaining consent from your contacts and for maintaining appropriate privacy and security practices regarding your contact list.

We do not sell your personal information or your contact list.

  1. Usage Data

We may also collect information on how the Services are accessed and used. This usage data may include information such as:

  • Your computer’s Internet Protocol address (IP address), browser type, browser version
  • The pages of our Services that you visit, the time and date of your visit, the time spent on those pages, unique device identifiers and other diagnostic data.
  • Email campaign performance.
  1. Tracking & Cookies Data

We use cookies and similar tracking technologies to track activity on our website and Services. Cookies are small data files placed on your computer or other internet-enabled device that enable the Services’ features and functionality. They allow us to record information when you visit or interact with our website and Services. Other tracking technologies, such as web beacons and pixels work similarly to cookies, placing small data files on your device that monitor your website and Services activity. Examples of Cookies we use are:

  • Session cookies. We use session cookies to operate our Services. Session-based cookies last only while your browser is open and are automatically deleted when you close your browser.
  • Persistent cookies. We use persistent cookies to remember your preferences and various settings. Persistent cookies last until you or your browser delete them or until they expire.
  • Security cookies. We use cookies to enable and support our security features, and to help us detect malicious activity.
  • Third party cookies. We may use third-party service providers to monitor and analyze the use of our Services. For example, we use Google Analytics to track and report on website traffic.

You can instruct your browser to refuse cookies or to indicate when a cookie is being sent. However, if you do not accept cookies, you may not be able to use some portions of our Services. Our partners may use cookies to provide us with information about your interactions with their products, but use of those third-party cookies would be subject to the service provider’s policies.

15.2 Use of Information

Mailberry, Inc. uses your personal information for various purposes:

  • To provide, maintain and improve the Services.
  • To notify you about changes to the Services.
  • To allow you to participate in interactive features of the Services when you choose to do so.
  • To provide customer support.
  • To gather analysis or other data so we can improve the Services. To monitor the usage of our Services.
  • To detect, prevent and address technical issues.
  • To provide you with news, special offers and general information about other goods, services and events which we offer that are similar to those that you have already purchased or enquired about unless you have opted not to receive such information.
  • To comply with legal requirements and to enforce compliance with our Terms of Service.

15.3 Retention of Information

Mailberry, Inc. will retain your personal information only for as long as is necessary for the purposes set out in this privacy policy. When we no longer need to use your personal information and there is no need for us to keep it to comply with our legal or regulatory obligations, we will either remove it from our systems or depersonalize it so that we can’t identify you.

15.4 Transfer of Information

Your information may be transferred to – and maintained on – computers located outside of your state, province, country or other governmental jurisdiction where the data protection laws may differ from those of your jurisdiction.

If you are located outside the United States and choose to provide personal information to us, please note that we transfer that information to the United States and process it there. Your use of the website and Services followed by your submission of such information represents your agreement to that transfer.

Mailberry, Inc. will not transfer your personal information to an organization or a country unless there are adequate controls in place including the security of your data and personal information.

15.5 Disclosure of Information

Mailberry, Inc. may share your personal information as follows:

  • If we are involved in a reorganization, merger, acquisition or asset sale, your personal information may be transferred. We will provide notice before your personal information is transferred and becomes subject to a different Privacy Policy.
  • If required to do so by law or in response to valid requests by public authorities (e.g. a court or a government agency).
  • If we have a good faith belief that such action is necessary to protect the safety of Mailberry subscribers or the public, the rights or property of Mailberry, Inc., to prevent or investigate possible wrongdoing in connection with the Services, and to protect against legal liability.

15.6 Information Security

The security of your information is important to us but remember that no method of transmission over the Internet or method of electronic storage is 100% secure. We use reasonable and appropriate physical, technical and administrative safeguards to protect personal information from loss, misuse, unauthorized access and destruction.

15.7 “Do Not Track” Policy Under the California Online Protection Act (CalOPPA)

Our website and Services do not collect personal information about your online activities over time and across third-party websites or online services. Therefore, “do not track” signals transmitted from web browsers do not apply to our website or Services, and we do not alter any of our data collection and use practices upon receipt of such a signal. We do not support Do Not Track (“DNT”). Do Not Track is a preference you can set in your web browser to inform websites that you do not want to be tracked.

You can enable or disable Do Not Track by visiting the Preferences or Settings page of your web browser.

15.8 Residents of the European Economic Area

If you are a resident of the European Economic Area, Switzerland, or the United Kingdom, under the General Data Protection Regulation (GDPR), Mailberry, Inc.’s legal basis for processing and using personal information as described in this privacy policy derives from the following:

  • To perform our Services contract with you
  • You have given us permission to do so
  • The processing is in our legitimate interest in making the Services safe and improving its function and features
  • For payment processing purposes
  • To comply with the law

15.9 Residents’ Rights under the GDPR

If you wish to be informed about what personal information we hold about you and if you want it to be removed from our systems, please email us at support@Mailberry.ai.

In certain circumstances and depending on the country in which you reside, you may have the following data protection rights:

  • The right to access, update or delete the information we have on you. You can access, update or request deletion of your Personal Data directly within your account settings section. If you are unable to perform these actions yourself, please contact us at support@Mailberry.com to assist you.
  • The right of rectification. You have the right to have your information rectified if that information is inaccurate or incomplete.
  • The right to object. You have the right to object to our processing of your Personal Data.
  • The right of restriction. You have the right to request that we restrict the processing of your personal information.
  • The right to data portability. You have the right to be provided with a copy of the information we have on you in a structured, machine-readable and commonly used format.
  • The right to withdraw consent. You also have the right to withdraw your consent at any time where Mailberry, Inc. relied on your consent to process your personal information.

Please note that we may ask you to verify your identity before responding to such requests.

15.10 Service Providers

We may employ third party companies and individuals to facilitate our Services (“Service Providers”), provide the Services on our behalf, perform Services-related services or assist us in analyzing how our Services are used. These third parties have access to your personal information only to perform these tasks on our behalf and are obligated not to disclose or use it for any other purpose.

15.11 Analytics

We may use the following third-party Service Providers to monitor and analyze the use of our Service.

Google Analytics is a web analytics service offered by Google that tracks and reports website traffic. Google uses the data collected to track and monitor the use of our Service. This data is shared with other Google services. Google may use the collected data to contextualize and personalize the ads of its own advertising network.

You can opt-out of having made your activity on the Service available to Google Analytics by installing the Google Analytics opt-out browser add-on. The add-on prevents the Google Analytics JavaScript (ga.js, analytics.js and dc.js) from sharing information with Google Analytics about visits activity.

For more information on the privacy practices of Google, please visit the Google Privacy & Terms web page: https://policies.google.com/privacy

15.12 Payments

We may provide paid products and/or services within the Services. In that case, we use third-party services for payment processing.

We will not store or collect your payment card details. That information is provided directly to our third-party payment processors whose use of your personal information is governed by their respective privacy policy. These payment processors adhere to the standards set by PCI-DSS as managed by the PCI Security Standards Council, which is a joint effort of brands like Visa, MasterCard, American Express and Discover. PCI-DSS requirements help ensure the secure handling of payment information.

The payment processors we work with are:

Stripe: Privacy policy at: https://stripe.com/us/privacy

15.13 Links to Other Sites

Our Services may contain links to other sites that are not operated by us. If you click a third party link, you will be directed to that third party’s site. We strongly advise you to review the privacy policy of every site you visit. We have no control over and assume no responsibility for the content, privacy policies or practices of any third party sites or services.

15.14 Children’s Privacy

Our Service does not address anyone under the age of 18. We do not knowingly collect personally identifiable information from anyone under the age of 18. If you are a parent or guardian and you are aware that your child has provided us with personal information, please contact us at support@Mailberry.com. If we become aware that we have collected personal information from children without verification of parental consent, we take steps to remove that information from our servers.

15.15 Changes to This Privacy Policy

We may update our privacy policy from time to time. We will notify you of any changes by posting the new privacy policy on this page. We will let you know via email and/or a prominent notice on our website or Services update the “effective date” at the top of the privacy policy.

You are advised to review this policy periodically for any changes. Changes to this policy are effective when they are posted on this page.

15.16 Contact Us

If you have any questions about this privacy policy, please contact us by email: support@Mailberry.ai

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