1. This contract is between Namo Solutions dba Mailrail, a California Corporation further referred as "Mailrail," "we," or "us" that owns and operates www.mailrail.net (the website, including all sub-domains of mailrail.net) and user member, hereafter referred as You, Customer (you as defined in above section)
2. Purpose: The purpose of these Terms of Use (this "Agreement") is to set forth the terms and conditions under which you are permitted to use our email / electronic newsletter, electronic survey, electronic polling creation, distribution and management system (the "Services"). Any email, including but not limited to any email newsletters, sent out using the Services, are referred to herein as an "Email." Any surveys and poll sent out or embedded in to any other site using the Services, are referred to herein as an "esurvey."
3. Changes: We reserve the right to change any of the terms of this Agreement by making the change available in the Terms of Use posted on our Website and/or by sending an email to the most recent email address given to us or updated by you on the profile section of the website.
4. Free Trial: If you choose to use Free trial services, you will not be billed for such use for a period of thirty (30) days, commencing on the date on which you accept this Agreement. During the Trial Period, you may use the Services subject to the limits posted on the Site. We may change these limits anytime without prior notice. Once you have completed the free trial period or exceeded the free subscriber limit, the Trial Period will terminate. Upon such termination, you may purchase a paid subscription for the Services.
5. Payments: Our charges for monthly plans are posted on our website and may be changed from time to time. Payments are due for any month on the same day of that month as the day of the month that you signed up with us and made your first monthly payment (the "Pay Date"). If you upgrade the plan, you will be required to pay at the higher level on or before the Pay Date for the following month except as otherwise provided in this Agreement. You agree to provide us with a valid credit card and authorize us to charge your card on monthly basis as per the plan you have signed up for. If your credit card expires or your credit card number changes, you will promptly provide us with new credit card data or update your payment information.
6. Refunds: No refunds will be provided, unless we decide to terminate your services without reason. If your services get terminated due to noncompliance with anti-spam policy or noncompliance with this agreement, no refund will be issued.
7. Terms and Termination: Either party may terminate the Terms of this Agreement at any time for any reason by providing Notice to the other party. We may suspend our Services to you at any time with or without cause. We will refund a pro rata portion of your monthly prepayment or reimburse you for unused Email Credits if we terminate your membership without cause. Unless you explicitly terminate this agreement, one week prior to end of the agreement, the agreement will renew itself and we will continue to bill you. Mailrail.net may terminate this Agreement at any time if Customer does not abide by the terms of this Agreement. In the event of any suspected violation of the terms, conditions or restrictions set forth in this Agreement, Mailrail.net may immediately disable Customer's access to the Services and suspend its provision thereof. Any default in the performance of any of Customer's obligations hereunder shall be considered a material breach of this Agreement and shall entitle Mailrail.net to terminate this Agreement immediately, to terminate Mailrail.net's Services and to pursue all available equitable and legal remedies.
8. Account access and Password: You agree to maintain your username and Passwords in strict confidence and not to provide the Passwords to any third party. You will notify Mailrail.net promptly if there is a loss or compromise of any Passwords. You agree to notify us immediately for any unauthorized use of any of your accounts. You will be solely responsible for all actions and fees incurred as a result of such an incident resulting from negligence on your part. Any unauthorized use of user IDs or Passwords by you will constitute a material breach of this Agreement.
9. Professional Services: In addition to the Services, You may purchase professional services to customize services pursuant to a mutually agreed-upon written statement of work. In the event of any conflict between the terms and conditions of this Agreement and a Statement of Work, the terms and conditions of this Agreement shall govern, unless the parties expressly specify otherwise in such Statement of Work. Any Statement of Work may be modified or amended with the written consent of both parties.
10. Data: In offering the Services, we may collect personal information about you and your list. Mailrail.net will not own any data, information or material that you submit to Mailrail.net in the course of its provision of the Services. You are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customers' Recipient Data, and You are responsible for maintaining, securing and storing all Customers' Recipient Data in accordance with applicable law. Mailrail.net will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customers' Recipient Data.
11. Communication: Mailrail.net may contact you for marketing purposes by various means, including but not limited to, regular mail, email or telephone. When you activate a Mailrail.net account, you give your express consent to receive marketing communications via direct mail, email (at the email address you provided when activating your account), telephone (at the number you provided when activating your account), pre-recorded messages (at the number you provided when activating your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods.
12. Proprietary Rights Owned by Us: You acknowledge that we, or our suppliers, own all proprietary rights in the Website and the software used to provide the Services, including, but not limited to, any patents, trademarks, service marks and copyrights.
13. Proprietary Rights Owned by You: You represent and warrant to us that you will not add or upload any content to the Website to create an electronic newsletter, or for any other purpose unless you are the owner of all proprietary rights in that content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.
14. Use of Services: You acknowledge and agree that you will use the Services only to access, employ, utilize, or display the Software solely for Your "internal business purposes" by your employees or by independent contractors hired by you. For the avoidance of doubt, the term "internal business purposes," as used herein, does not include, among other things, the right to:
(i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights;
(iii) send messages to any purchased (email) lists, distribution lists, newsgroups, or spam email addresses; or
(iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. You agree to report immediately to Mailrail.net, and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this agreement or any of the Policies. You will not send any unsolicited email to anyone with whom you have no relationship. You will only send mail using Mailrail to contacts:
(i) who gave or have given you written (including electronic) permission to send Emails to them, without subsequently withdrawing such permission; or
(ii)who Sold or Negotiated to Sell a Product or Service.
Prohibited Content and Industries
You may not use Mailrail to send anything offensive, to promote anything illegal, or to harass anyone.
You may not send:
• Pornography or other sexually explicit Emails
• Emails offering to sell illegal substances
• Emails that violate the CAN-SPAM Law
Also, there are some industries that send certain types of content that result in higher than normal bounce rates and abuse complaints, which in turn jeopardize the deliverability of our entire system. We do not allow businesses that offer these types of services, products, or content:
• Illegal goods or services
• Escort and dating services
• Pharmaceutical products
• Get-rich-quick or work-at-home schemes
• Gambling services, products or gambling education
• Multi-level marketing
• Affiliate marketing
• Credit repair, get-out-of-debt content
• Mortgages and/or Loans
• Nutritional Supplements, Herbal Supplements or Vitamin Supplements
• Pornography or nudity in content
• Adult novelty items or references in content
• List brokers or List rental services
• Marketing or sending commercial email without proper permission
15. Force Majeure: Neither party will be liable for any failure or delay in performance under this agreement which is due to any event beyond the reasonable control of such party, including without limitation, fire, explosion, unavailability of utilities or raw materials, Internet delays and failures, telecommunications failures, unavailability of components, labor difficulties, war, riot, act of God, export control regulation, laws, judgments or government instructions.
16. No Waivers. Mailrail's failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
17. Electronic Signatures and Records. As a convenience and courtesy to you, Mailrail provides access to its Services online which may require you to enter into agreements or receive notices electronically. Accordingly, you acknowledge and agree that by clicking "I Agree" or "I Accept" anywhere on the Site:
(a) you agree to conduct electronically the particular transaction into which you thereby enter including, without limitation, entering into this Agreement;
(b) you have read and understand the electronic copy of electronic contracts, notices and records, including, without limitation, this Agreement, the Policies and any amendments hereto or thereto;
(c) you agree to, and intend to be bound by, the terms of the particular transaction into which you thereby enter;
(d) you are capable of printing or storing a copy of electronic records of transactions into which you enter including, without limitation, this Agreement and any amendments hereto;
(e) you agree to receive electronically information about the Services and other electronic records into which you thereby enter including, without limitation, this Agreement.
18. Export Restrictions. Customer acknowledges that the Services may be subject to U.S. or other countries' export control laws and regulations. Customer agrees not to export, or transfer for the purpose of re-export, the Services (including technical data) in violation of any U.S. or other applicable export control laws and regulations.
19. No Warranties: Mailrail makes no warranties of any kind, expressed or implied, for the services to be provided hereunder.
20. No Removal: Each email message that is sent using the Services must contain an "unsubscribe" link that allows visitors to remove themselves from your mailing list and a link to Mailrail.net Policies. Each email will also contain your physical address and your contact information. You agree that you will not remove, disable or attempt to remove or disable either link and address. Further, each such email message may contain an automatic identifying footer such as "Powered by Mailrail.net." You agree that you will not remove, disable or attempt to remove or disable such footer.
21. Representations, Warranties and Covenants: You represent, warrant and covenant to Mailrail.net that:
(i) if an individual, Customer is at least eighteen (18) years old;
(ii) if an entity, it is a company duly organized and validly existing in good standing under the laws of the state in which it was organized;
(iii) it has full power and authority to enter into this Agreement, which, upon its execution hereof, will constitute a legal, valid and binding obligation enforceable against it in accordance with the terms hereof;
(iv) all information provided by it in the Service Order and otherwise during the term of this Agreement, is and will be truthful and accurate;
(v) its use of the Services will at all times be in accordance with the terms and conditions of this Agreement, the Policies and all applicable laws, rules and regulations; and
(vi) it is not directly or indirectly (as an owner, strategic partner or otherwise) engaged in any business relationship or activity that competes with the Services.
22. Disclaimer of Warranties: The services (and the professional services, as applicable) are provided "as is" and without representation or warranty of any kind. To the maximum extent permitted by applicable law, mailrail and its affiliates, licensors, distributors, dealers and suppliers (collectively, the "representatives") disclaim any and all representations and warranties, whether oral or written, express or implied, including (without limitation) any warranty as to merchantability, fitness for a particular purpose or use, title, or non-infringement, with respect to the services. Mailrail and the representatives do not warrant that the services will meet customer's requirements nor do they give any warranty about the results that may be obtained by using the services.
23. Limitation of Liability: In no event will mailrail or any representative be liable to customer or any other party for any special, indirect, incidental, exemplary, consequential or punitive damages arising from or related to the services (or the professional services, if applicable), or to the performance of this agreement, including but not limited to, damages for loss of data, loss of use, or loss of profits, even if mailrail or its representatives have been advised in advance of the possibility of such loss or damages. Further, in no event will mailrail and the representatives' total cumulative liability to customer or any other party for claims, losses, or damages of any kind, whether based on contract, tort, negligence, indemnity or otherwise, arising out of or related in any way to this agreement or the services, exceed the actual fees customer paid to mailrail for the services as of the date of the claim, loss, or damage. In the event of any failure, or Mailrail non-provision, of the Services (or the Professional Services), Customer's sole and exclusive remedy shall be for Mailrail to use commercially reasonable efforts to repair or provide the Services.
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24. Indemnification: You agree to indemnify, defend and hold harmless Mailrail, the Representatives, and its and their respective affiliates, officers, directors, stockholders, employees, consultants, representatives and agents from any and all claims, liability, damages and/or costs (including, but not limited to, reasonable attorneys' fees) arising from Your negligence or intentional misconduct, Customer's violation of any applicable law, including the federal CAN SPAM Act, 15 U.S.C. 7701-7713, this Agreement or the Policies, Customer's breach of any of its representations, warranties or covenants set forth herein, or Customer's infringement of any intellectual property rights or other rights of any person or entity.
25. Governing Law: This Agreement will be governed by the laws of the State of California as applied to agreements entered into and performed entirely within the State of California, without regard to any choice of law provisions thereof. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
26. Arbitration: Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in San Jose, California, U.S.A. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within ten (10) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. Notwithstanding the foregoing, Mailrail shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of California, to which jurisdiction, for such purpose, Customer hereby irrevocably consents.
27. Relationship: This Agreement does not create a partnership, joint venture or agency relationship between you and Mailrail. You do not have any right, power, or authority to act as a legal representative of Mailrail.
28. Assignment: You may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of Mailrail. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
29. Severability: In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
30. Survival: The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
31. Entire Agreement: This Agreement, the Policies and the Statement of Work(s), if any, constitute the entire agreement and understanding between Mailrail and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the Mailrail and Customer, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement.