MAILCHANNELS TERMS OF SERVICE AGREEMENT

Effective May 25, 2018

PLEASE READ THE FOLLOWING CAREFULLY AS IT AFFECTS YOUR LEGAL RIGHTS. THIS AGREEMENT GOVERNS YOUR USE OF ANY FREE, TRIAL OR PAID MAILCHANNELS SERVICES OR SOFTWARE WHERE THESE TERMS APPEAR OR ARE LINKED TO. AS USED IN THIS AGREEMENT, “MAILCHANNELS”, “US” OR “WE” REFERS TO MAILCHANNELS CORPORATION AND ITS AFFILIATES (AS DEFINED BELOW).

THIS AGREEMENT CONTAINS PROVISIONS REQUIRING THAT YOU AGREE TO THE USE OF ARBITRATION TO RESOLVE ANY DISPUTES ARISING UNDER THIS AGREEMENT RATHER THAN A JURY TRIAL OR ANY OTHER COURT PROCEEDINGS, AND TO WAIVE YOUR PARTICIPATION IN CLASS ACTION OF ANY KIND AGAINST MAILCHANNELS.

By clicking on the “Create Account” button (or any similar button) that is presented to you at the time of sign-up or by using or accessing the Service, you indicate your assent to be bound by this Services Agreement (the “Agreement”). MailChannels may modify this Agreement from time to time, subject to the terms in Section 35 (Changes to this Agreement) below.

If you are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), you are agreeing to this Agreement for that Entity and representing to MailChannels that you have the authority to bind such Entity to this Agreement, in which case the terms “you,” “your” or a related capitalized term herein will refer to such Entity. If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and must not use the Service.

1. Definitions. In this Agreement:

(a) “Affiliate” means any means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50{06a9a97dfd9f03131f351f623739aa3597cab6be1f0e505a27cf49378faf7df1} (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
(b) “Authentication Credentials” means all usernames and passwords created by or assigned to you so that you can access the Service.
(c) “Documentation” means all material other than the Service furnished by MailChannels in conjunction with the Service, including without limitation the functional specifications for the Service, API documentation, user interface guides, setup guides, and the knowledge base.
(d) “Email Message” means an internet email message as further described by the Internet Engineering Task Force in RFC 5322 and any extensions or revisions thereof.
(e) “End User Domain” means an internet domain name as defined in IETF RFC 1035 and revisions thereof on whose behalf you have configured the service to receive and process Email Messages.
(f) “IETF” means the Internet Engineering Task Force, a division of the Internet Society, an American non-profit organization founded in 1992 to provide leadership in Internet-related standards, education, access, and policy.
(g) “Service” means the email processing service known as “MailChannels Cloud” whether it is used for processing incoming or outgoing Email Messages; any services used by the Service; and including all documentation, instructions, manuals, diagrams and other materials, in whatever medium or format, pertaining to the foregoing and any corrections, improvements, authorized modifications, and updates thereto.
(h) “SMTP” means the Simple Mail Transport Protocol as defined by IETF in standard document RFC 5321, and any extensions or revisions thereof.
(i) “Site” means the MailChannels web sites located at www.mailchannels.com, console.mailchannels.com, app.mailchannels.net, and such other sites as may be designated by MailChannels for interacting with and maintaining your use of the Service (each, the “Site” or collectively, “Sites”).
(j) “Spam” is any email message that is sent to a recipient who i) did not verifiably grant deliberate, explicit, and still-revocable permission to receive said message, and ii) for which the recipient’s personal identity and context are irrelevant because the message is equally applicable to many other potential recipients.
(k) “SMTP Password” means a password that has been generated for your use and which in combination with your Account Name allows you to establish authenticated SMTP Connections with the Service to deliver email to the internet using the Service.
(l) “Unauthenticated Sender” means an internet host which establishes SMTP Connections with the Service without first authenticating using an SMTP Password.

 

2. Access to the Service. Subject to your compliance with this Agreement (including, without limitation, all payment obligations), MailChannels hereby grants to you a limited, revocable, non-exclusive, non-transferable, and non-sublicensable (except to Affiliates) right, to access and use the Service (“Cloud License”). If you are agreeing to this Agreement on behalf of an Entity, such Entity’s Affiliates may also access and use the Service provided that such Affiliates agree to be bound by the terms of this Agreement, and the Entity remains fully liable for such Affiliates’ actions and omissions in connection with this Agreement as if the Entity had performed such acts and omissions itself.

3. Restrictions. Unless otherwise expressly permitted in writing by MailChannels, you will not and you have no right to:

(a) rent, lease, loan, export or sell access to the Service to any third party;
(b) allow a third party to use the Service;
(c) interfere with, disrupt, alter, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service;
(d) utilize any framing techniques to enclose any MailChannels trademark, logo, service mark, or other trade dress (“MailChannels Marks”) or Materials (defined below) or use any meta tags or other “hidden text” utilizing the MailChannels Marks or Materials without MailChannels’ written consent;
(e) introduce software or automated agents or scripts into the Service so as to produce multiple accounts, generate automated searches, requests or queries, or to strip or mine data from the Service;
(f) perform or publish any benchmark tests or analyses relating to the Service without MailChannels’ written consent;
(g) use the Service to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103 without MailChannels’ written consent.
(h) knowingly use the Service to distribute Spam;
(i) put into any Email Message any material, including graphics or other content, that is not created by you, not provided for your use, or that would violate any other party’s rights;
(j) use any misleading or incorrect names, addresses, email addresses, subject lines, or other misleading or incorrect information in Email Messages; or,
(k) share your Authentication Credentials with any third party;

4. Confidentiality and Security of Authentication Credentials. You are responsible for maintaining the confidentiality of your Authentication Credentials, and are solely responsible for all activities that occur under such Authentication Credentials. You agree to notify MailChannels promptly of any actual or suspected unauthorized use of any Authentication Credentials. MailChannels reserves the right to terminate any Authentication Credentials that MailChannels reasonably determines may have been accessed or used by an unauthorized third party, and will provide immediate notice of such to you.

5. Subscription Terms, Renewals and Cancellations. All Services that are provided to you as Paid Services (each a, “Paid Service”) will be provided to you on a subscription basis for the length of term that you specified during the initial sign-up process (“Subscription Term”). All of your subscriptions to Paid Services will automatically renew for periods equal to your initial Subscription Term, and you will be charged at our then-current rates unless you cancel your subscription through the Services’ account dashboard prior to your next scheduled billing date.

6. Usage Billing. If you use a Paid Service, we may charge usage fees associated with your usage of the Paid Service (“Usage Fees”). We will calculate any Usage Fees owing by you at the end of each Subscription Term, and will charge your credit card for Usage Fees at that time. You are responsible for monitoring your usage of the Service and for anticipating any and all Usage Fees we may charge for your usage of the Service. If you do not promptly pay Usage Fees as calculated by us, we may terminate your Cloud License. Usage Fees include but are not limited to:

(a) fees for processing a number of Email Messages during a Subscription Term that exceeds a set amount provided by the service package you have purchased;
(b) fees for setting up sub-accounts for customers to whom you are reselling the Service;
(c) fees for processing Email Messages on behalf of a number of End User Domains that exceeds the number of End User Domains provided by the service package you have purchased.

7. How we Count Messages. If you use a Paid Service which bases its fees on the number of Email Messages processed, the number of Email Messages processed will be calculated as the sum of:

(a) The number of SMTP Connections established

i. by you;
ii. by others who authenticate using your Authentication Credentials; and,
iii. by others who are connecting to the Service to attempt to send Email messages to your End User Domains; plus,

(b) The number of additional Email Messages submitted during each such SMTP Connection after submission of the first Email Message on the SMTP Connection.

 

The number of Email Messages counted will include attempts to deliver Email Messages which were rejected by the Service, for instance to block Spam. For avoidance of doubt, you hereby acknowledge that MailChannels will charge you for processing Email Messages that are Spam or which are rejected by the Service for any reason whatsoever, including rate limiting.

8. Verification of Logs for Billing Purposes. MailChannels logs email delivery attempts along with meta-information required for attributing such delivery attempts to you for billing purposes for up to 60 days after the date on which an email delivery attempt occurred. If you have questions relating to your bill, MailChannels will only be able to provide evidence confirming the verity of your bill in relation to SMTP Connections processed by the Service during the most recent 60 day period. MailChannels may retain such logs for a longer period; however, if MailChannels does so, these logs will be stored in a form of storage that requires time and expense to retrieve, and as such any request by you for logs older than 60 days may require payment of a log retrieval fee.

9. Free Trials. We may offer free or trial versions of the Service (“Free Services”) from time to time. With respect to each such Free Service, we will make each such Free Service available to you free of charge until the earlier of (a) the end of the free trial period (if applicable) for which you registered to use the Free Service; (b) the start date of your Subscription Term for the Paid Services version of such Free Service; or (c) termination of the Free Service by MailChannels in our sole discretion. We will have no liability for any harm or damage arising out of or in connection with any Free Services.

10. Acceptable Use. By using the Service you are agreeing, among other things, that you will not use the Service to (a) falsely imply any sponsorship or association with MailChannels; (b) post, transmit, store or link to any files, materials, data, text, audio, video, images or other content that infringe on any person’s intellectual property rights or that are otherwise unlawful; or (c) engage in any activities that are illegal, including disseminating, promoting or facilitating child sexual abuse material or engaging in human trafficking.

11. Recurrent Billing. In order to access Paid Services, you will be required to provide MailChannels with your credit card information (“Payment Method”). By providing a Payment Method you are authorizing us to charge your Payment Method on a monthly or annual basis, or as otherwise applicable for the subscription fees associated the Paid Services that you sign up for (“Service Fees”). Any Payment Method that you provide us must be valid, and kept current by you during the Subscription Term. By providing us with a Payment Method, you represent and warrant that you are authorized to use such Payment Method. MailChannels will begin billing your Payment Method for the Paid Services on the day that you sign up for such Paid Services, regardless of whether you have fully configured the Paid Services as of that date.

12. Price Changes. We reserve the right to change the subscription fees that we charge for the Service, at any time in our sole discretion, provided that we give you at least thirty (30) days’ prior notice of such changes. Unless otherwise specified in such notice to you, any changes to the subscription fees will take effect in the billing period immediately following our notice to you.

13. Obtaining Support. You may obtain support from MailChannels in the following ways:

a. by sending an email message to [email protected]; or,

b. by clicking on the Technical Support button on the contact-us page of the Site (currently located at https://www.mailchannels.com/contact-us/).

UNLESS YOU ARRANGE IN A SEPARATE SUPPORT AGREEMENT TO OBTAIN SUPPORT ON A PRIORITY BASIS, MAILCHANNELS HAS NO OBLIGATION TO PROVIDE A RESPONSE TO YOUR SUPPORT REQUESTS IN A TIMELY MANNER. IF YOU ARE USING A FREE SERVICE OR A BETA SERVICE, MAILCHANNELS SHALL HAVE NO OBLIGATION WHATSOEVER TO PROVIDE SUPPORT TO YOU. YOU ARE RESPONSIBLE FOR PROVIDING FIRST LINE SUPPORT TO YOUR END USERS, AND YOU HEREBY AGREE TO MAKE ALL REASONABLE EFFORTS TO RESOLVE SUPPORT ISSUES RAISED BY YOUR END USERS BEFORE CONTACTING MAILCHANNELS TO OBTAIN SUCH SUPPORT FOR YOUR END USERS. IF MAILCHANNELS, IN ITS SOLE DISCRETION, DETERMINES THAT YOUR END USERS ARE MAKING AN UNREASONABLE NUMBER OF SUPPORT REQUESTS DIRECTLY TO MAILCHANNELS, THEN MAILCHANNELS MAY TERMINATE YOUR CLOUD LICENSE.

14. Right to Inspect Customer Email. MailChannels reserves the right to view, copy, and internally distribute the content and metadata associated with Email Messages (the “Message Data”) to create algorithms and programs that help MailChannels spot abusive accounts and Spam, and to ensure compliance with this Agreement and laws. Message Data is also used to determine when Your account or end-users whose email you send through the Service may have been compromised by cybercriminals. MailChannels warrants that it will use best practices to maintain the privacy of the Message Data, including but not limited to ensuring that all MailChannels employees, contractors and third party technology providers sign sufficiently strong non-disclosure agreements, and taking reasonable steps to ensure that all systems on which Message Data is processed are secured from intrusion by unauthorized actors. MailChannels employees, contractors and third party technology vendors who work with Message Data may be located in any country. For this reason, MailChannels strongly recommends that You use end-to-end encryption methods such as S/MIME or PGP if You are concerned about the privacy of your Message Data. MailChannels abides by the relevant privacy laws in effect in the jurisdictions in which we operate.

YOU SPECIFICALLY ACKNOWLEDGE THAT MAILCHANNELS MUST BE ABLE TO VIEW, COPY AND INTERNALLY DISTRIBUTE CONTENT FROM YOUR EMAIL MESSAGES IN ORDER TO ENSURE THE CONTINUOUS AVAILABILITY OF THE SERVICE BY LIMITING REPUTATIONAL DAMAGE CAUSED BY SPAM AND OTHER ABUSE, AND THAT MAILCHANNELS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT OTHERWISE.

15. Sender Identification. If you are sending Email Messages through the Service for delivery to the internet, you will identify each user or other sending entity who sends email through the Service by including an identifying header or other identifier as may be required by MailChannels (the “Sender Identifier”), and will make all reasonable attempts to ensure that such identifier uniquely identifies each user or sending entity. For example, you may include an “X-AuthUser” header which specifies the username of the authenticated user within your services who originated an Email Message submitted to the Service for delivery. You acknowledge that the accurate identification of the responsible sender of each message helps MailChannels provide you with reliable email message delivery, and that failure to provide accurate sender identification information in messages may imperil MailChannels’ ability to provide reliable email delivery for you.

16. Rate Limiting and Other Necessary Limitations. MailChannels may, at its sole discretion, limit the volume of email messages you can deliver or receive through the Service. MailChannels may limit Email Message volume by queuing your Email Messages internally, or by temporarily rejecting requests by your or other mail servers to send email through the Service (in which case your own or other mail servers may queue said messages for later delivery). You are advised to obtain alternative email sending services to ensure you are continuously able to send email should the Services cause your email messages to be rate limited at any time. You are further advised that nothing in this Agreement prevents you from obtaining additional email processing services from other providers at any time, nor does anything in this Agreement prohibit you from sending email directly to recipients on the internet from your own mail servers.

17. Reseller Terms. If you desire to offer the Service to your own customers by reselling the Service via the reseller functionality offered therein, then you must agree to the following terms. The terms set forth in this Section 17 shall be in addition to, and not in lieu of, the terms set forth elsewhere in this Agreement:

(a) Reseller Account.  If we authorize you to be a reseller of the Service, you will be provided with an administrative account to manage access to and use of the Service (the “Reseller Account”).  The Reseller Account may be accessed and used only by You for purposes of establishing and administering Reseller User access to the Services. You will be solely responsible for all use of the Reseller Account.  You will ensure the security and confidentiality of all usernames and passwords associated with the Reseller Account and will notify MailChannels immediately if any such information is lost, stolen or otherwise compromised.  You will be fully responsible for all liabilities and damages incurred through use of the Reseller Account (whether lawful or unlawful). Any transactions completed through any Reseller Account will be deemed to have been completed by You. In no event will MailChannels be liable for the foregoing obligations or the failure by You to fulfill such obligations.

(b) Use of the Service by Reseller Users. Prior to allowing any Reseller User to access or use the Service, You will require that the Reseller User become legally bound by an agreement covering the use of the Service with You (a “Reseller User Agreement”).  You will be responsible for preparing the Reseller User Agreement. The Reseller User Agreement will include terms consistent with Your rights and obligations under this Agreement and at least as protective of the Service and the interests of MailChannels as those set forth Exhibit A hereto, but in no case less protective of the Service and the interests of MailChannels than of Your interests in the Reseller User Agreement.  Upon request by MailChannels, You will provide MailChannels with a copy of the Reseller User Agreement (including any prior versions thereof) and verify that each Reseller User has agreed to be legally bound by the Reseller User Agreement.  You assume all responsibility and liability for the actions of all Reseller Users, including all use of or access to the Service by each Reseller User or by You on behalf of any Reseller User and will be responsible for each Reseller User’s compliance or failure to comply with the Reseller User Agreement.  You will promptly notify MailChannels upon becoming aware of any breach of any Reseller User Agreement and will enforce the terms of each Reseller User Agreement against each Reseller User. If You fail to enforce the Reseller User Agreement against any Reseller User, upon the request of MailChannels, You will provide MailChannels with such authority and such information regarding such Reseller User as is required for MailChannels to enforce the Reseller User Agreement directly against that Reseller User.

(c) Reseller Fees. MailChannels may set out additional and minimum fees which you must pay in order to be a Reseller of the Service, including but not limited to a recurring fee with respect to each Reseller User (collectively, the “Reseller Fees”). The Reseller Fees shall be in addition to the Service Fees you must pay as specified elsewhere in this Agreement.

(d) Reseller Term. MailChannels may require you to commit to a specific term in order to qualify as a Reseller of the Service, or to provide a pre-payment to MailChannels to qualify as a Reseller.

(e) You Provide the First Line of Support. You must provide the first line of support to Your Reseller Users, and shall not refer Reseller Users to MailChannels’ for support. If Your Reseller Users contact MailChannels for support, then MailChannels may deny their requests for Support. Furthermore, repeated violations of this rule may result in your termination as a Reseller, at MailChannels’ sole discretion.

(f) Use of MailChannels Marks Requires Authorization. You may not use any MailChannels trademarks in the promotion of the Service to Reseller Users without the express, written consent of MailChannels, which consent may be withheld by MailChannels for any reason whatsoever.

(g) MailChannels is not Obligated to Authorize you as a Reseller. MailChannels has no obligation to give you the right to resell the Service, and may deny your request to become a Reseller for any reason whatsoever.

(h) MailChannels Termination Right. MailChannels may terminate your right to resell the Service at any time by giving you written notice thereof. After such notice has been given, your Reseller Users shall, at MailChannels’ sole discretion and without compensation to you, be either

i. transferred to another Reseller authorized by MailChannels to resell the Services;
ii. transferred to MailChannels to be dealt with as direct customers of MailChannels; or,
iii. terminated as Reseller Users altogether.

18. No Refunds. SUBSCRIPTION FEES ARE NONREFUNDABLE. YOU WILL BE BILLED IN FULL FOR THE SUBSCRIPTION TERM IN WHICH YOU CANCEL AND NO REFUNDS WILL BE PROVIDED FOR THE UNUSED PORTION OF SUCH SUBSCRIPTION TERM. If you cancel a Subscription, however, you will continue to have access to the Paid Services through the end of your current Subscription Term. We may, in our sole discretion, provide a refund, discount, or credit (“Credits”) to you in a specific instance, however the provision of Credits in a specific instance does not entitle you to Credits in the future for similar instances or obligate us to provide additional Credits.

19. Beta Services. From time to time, we may make early stage or non-production Services and Software (“Beta Services”) available to you at no charge. You may access these Beta Services in your sole discretion. Beta Services are intended for evaluation purposes only, and may be subject to additional terms that will be presented to you at the time of sign-up. MailChannels may, but is not obligated to, provide you with support for the Beta Services or correct any bugs, defects, or errors in the Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in our sole discretion and may never make them generally available. Notwithstanding anything to the contrary in this Agreement, we will have no liability for any harm or damage arising out of or in connection with any Beta Services.

20. Security. We implement security procedures to help protect your data from security threats. However, you understand that your use of the Service necessarily involves transmission of your Information over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Information that is lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of your Information will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third party service providers.

21. Trade Sanctions. You may not use the Service for any reason if you or any party that owns or controls you, are subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the Government of Canada, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority. You may not use the Service to export or re-export any information or technology to any country, individual, or entity to which such export or re-export is restricted or prohibited.

22. Termination. You will lose your license to use the Service if you violate any provision of this Agreement. MailChannels’ policy is to investigate violations of this Agreement and terminate repeat infringers. Additionally, we may at our sole discretion terminate your user account or suspend or terminate your access to the Service at any time, with or without notice for any reason or no reason at all. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service. You may terminate your account at any time through the Service’s account dashboard.

Upon termination or expiration of this Agreement for any reason:

a. all rights and subscriptions granted to You under this Agreement will terminate;
b. you will immediately cease all use of and access to the Service;
c. all Fees then owed by you will become immediately due and payable;
d. you will immediately either return to MailChannels or, at MailChannels’ discretion, destroy the information related to this Agreement in Your possession or control; and,
e. MailChannels may delete any data held by MailChannels pertaining to use of the Service, including but not limited to logs, messages, settings and configurations, although MailChannels shall have no duty to do so and may retain any information relating to your usage of the Service as permitted by law that is reasonably necessary for the safe and reliable operation of the Service after termination or expiration of this Agreement, such as but not limited to information required to comply with anti-spam laws.

23. Ownership. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by MailChannels are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of MailChannels or our third-party licensors. Except as expressly authorized by MailChannels you may not make use of the Materials. MailChannels reserves all rights to the Materials not granted expressly in this Agreement.

24. Indemnity. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless MailChannels and its officers, directors, employees, consultants, Affiliates, subsidiaries and agents (collectively, the “MailChannels Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of this Agreement or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.

25. Uncertain Nature of Spam and Virus Filtering. You acknowledges that the content and form of Spam, viruses, malware and phishing attempts are varied and ever-changing and that MailChannels does not warrant that the Service will filter all Spam, viruses, malware and phishing attempts or that it will not, in some cases, filter content that you or your users may not consider to be Spam, a virus or a phishing attempt. You further acknowledge that the operation of IP reputation systems including without limitation DNS blacklists, IP blacklists, DNS blacklists, and proprietary lists maintained by service providers is complex and ever-changing, and that MailChannels makes no warranties that the Service will be able to deliver every email message submitted to the Service for delivery by you.

26. No Warranties. Except as expressly set forth in this agreement, MailChannels hereby disclaims all other warranties express, implied, or statutory, including, without limitation, any warranties of merchantability, fitness for a particular purpose, title, accuracy of informational content, system integration, and non-infringement of third party rights, and any warranties against interference with enjoyment of the Service. Without limiting the foregoing, MailChannels specifically disclaims all representations and warranties that the Service, MailChannels’ efforts, or any system with which the Service is used will meet requirements, fulfill any particular purposes or needs, or that the operation of the Service will be uninterrupted or error-free. You acknowledges that the content and form of Spam, viruses and phishing attempts are varied and ever-changing and that MailChannels does not warrant that the Service will identify and/or filter all Spam, viruses and phishing attempts, accurately report all sender data, or that it will not, in some cases, misidentify content or filter content that you or your customers may not consider to be Spam, a virus or a phishing attempt. You assume the risk of any loss related to any response by your customers to any message or services advertised in any message received from a third party. To the extent MailChannels may not, as a matter of applicable law, disclaim any warranty, the scope and duration of such warranty shall be the minimum permitted under such law.

ALTHOUGH MAILCHANNELS TAKES GREAT EFFORTS TO ENSURE THE CONTINUOUS AVAILABILITY OF THE SERVICE TO DELIVER YOUR EMAIL, IN LIGHT OF THE STATEMENTS ABOVE, MAILCHANNELS RECOMMENDS THAT YOU HAVE A BACKUP METHOD OF SENDING EMAIL AVAILABLE AT ALL TIMES.

27. Your Warranty. You warrant and agree that you shall not utilize the Service except as expressly authorized by this Agreement. Any use beyond the scope of this Agreement shall constitute a material breach of this Agreement.

28. Ownership of Confidential Information. All information that MailChannels discloses to you with respect to the Service or the Documentation that MailChannels identifies to you as confidential and proprietary information (“Confidential Information”) including information in computer software or held in electronic storage media shall be and remain at all times the property of MailChannels and you will not disclose or allow to be disclosed any Confidential Information to any third party without the prior written authorization of MailChannels unless required to do so by law. Any confidential information relating to the parties that may be furnished or revealed pursuant to this Agreement are deemed to be confidential.

29. Limitation of Liability. IN NO EVENT WILL THE MAILCHANNELS ENTITIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICES OR ANY MATERIALS OR CONTENT ON THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE MAILCHANNELS ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.

YOU AGREE THAT THE AGGREGATE LIABILITY OF THE MAILCHANNELS ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICES (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICES) OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO MAILCHANNELS TO ACCESS AND USE THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

30. Indirect, Special Damages. MailChannels shall not be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or if MailChannels has been advised of the possibility of those damages.

31. No Liability to Your End Users. MailChannels disclaims all liability to or in respect of your end users or any other third party and, without limiting the generality of the foregoing, in no case will MailChannels be liable for any representation or warranty made to any third party by you or any agent of you.

YOU ACKNOWLEDGE THAT IF THIS LIMITATION WERE NOT INCLUDED HEREIN MAILCHANNELS WOULD NOT ENTER INTO THIS AGREEMENT OR PROVIDE THE SERVICE OR THE DOCUMENTATION TO YOU, AND ACCORDINGLY YOU COVENANT THAT YOU WILL MAKE NO CLAIM IN EXCESS OF THIS LIMITATION.

32. Subpoena Fees. If MailChannels is required to provide information in response to a subpoena relating to your use of the Service, then MailChannels may charge you for its costs for complying with that subpoena.

33. EU Data Privacy. MailChannels self-certifies to and complies with the British Columbia Personal Information Protection Act (“PIPA”). As such, MailChannels shall be deemed to provide adequate protection to personal data originating from the EU and/or Switzerland (within the meaning of EU data protection laws) by virtue of such self-certification.  For the purposes of this Agreement, the terms “personal data”, “processing” and “data subject” have the same meanings as those given to them in EU General Data Protection Regulation 2016/679 (“GDPR“). If your use of the Services requires MailChannels to process personal data falling within the scope of GDPR, MailChannels’ GDPR Data Processing Addendum is available for e-signature by sending an email to [email protected]. Once executed, such GDPR Data Processing Addendum shall hereby be incorporated into this Agreement by reference.

34. Jurisdiction. This Agreement shall be construed and governed exclusively by the laws in force in British Columbia and the laws of Canada applicable therein and, except as provided in Sections 41 through 46, the courts of British Columbia (and Supreme Court of Canada, if necessary) shall have exclusive jurisdiction to hear and determine all disputes arising hereunder. Except as provided in Sections 41 through 46, each of the parties hereto irrevocably attorns to the jurisdiction of said courts and consents to the commencement of proceedings in such courts. This Section shall not be construed to affect the rights of a party to enforce a judgment or award outside said province, including the right to record and enforce a judgment or award in any other jurisdiction.

35. Changes to this Agreement. MailChannels reserves the right to make modifications to this Agreement at any time. If a revision materially alters your rights we will use reasonable efforts to contact you, including sending a notification to the e-mail address(es) associated with your account. In some instances, such as with Free Services, you may be required to indicate your consent to the revised terms in order to continue accessing the Service. Unless otherwise specified, any modifications to this Agreement will take effect at the start of Subscription Term following the notice. If you do not agree with the revised terms, your sole and exclusive remedy will be not to renew your Subscription.

36. Versions. The authoritative version of MailChannels’ Services Agreement is available at: https://www.mailchannels.com/products/cloud/terms-of-service/.

37. General. This Agreement constitutes the entire and exclusive understanding and agreement between you and MailChannels regarding your use of and access to the Service. You may not assign or transfer this Agreement or your rights hereunder, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this Agreement at any time without notice. The failure to require performance of any provision will not affect our right to require performance at any time thereafter, nor will a waiver of any breach or default of this Agreement or any provision of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in this Subscription Agreement is for convenience only and will not have any impact on the interpretation of particular provisions. In the event that any part of this Subscription Agreement is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of this Agreement, any provision that by its nature or express terms should survive will survive such termination or expiration, including, but not limited to, Sections 4, 14, 18, 20, 23, 24, 26, 27, 28, 29, 30, 31, and 32.

38. Compliance with Laws. MailChannels makes no representation that the Service is complying with any laws or regulations. MailChannels’ customers operate in many different jurisdictions and it is therefore your responsibility to determine whether your use of the Service complies with the laws and regulations in effect within your jurisdiction.

39. Disputes, Generally. In the interest of resolving disputes between you and MailChannels in the most expedient and cost effective manner, you and MailChannels agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MAILCHANNELS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

40. Exceptions to Arbitration. Notwithstanding the foregoing, we both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either of our right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, provincial, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.

41. Arbitrator. In the event of a dispute hereunder which does not involve a party seeking a court injunction, that dispute shall be referred to and finally resolved by arbitration administered by the Commercial Arbitration Act (British Columbia) (the “Arbitration Act”). The place of arbitration shall be Vancouver, British Columbia.

42. Arbitration, Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). MailChannels’ address for Notice is: MailChannels Corporation, 925 W Georgia St, Suite 2300, Vancouver, BC V6C 3L2, Canada. The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or MailChannels may commence an arbitration proceeding.

43. Arbitration, Fees. Any arbitration hearings will take place at a location to be agreed upon in Vancouver, British Columbia provided that if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephonic hearing; or (iii) by an in-person hearing as established by the Arbitration Act in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose, then the payment of all fees will be governed by the Arbitration Act. In such case, you agree to reimburse MailChannels for all monies previously disbursed by it that are otherwise your obligation to pay under the Arbitration Act. Regardless of the manner in which the arbitration is conducted, the arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

44. No Class Actions. YOU AND MAILCHANNELS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and MailChannels agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

45. Arbitration, Modifications. In the event that MailChannels makes any future change to this arbitration provision (other than a change to MailChannels’ address for Notice), you may reject any such change by sending us written notice within 30 days of the change to MailChannels’ address for Notice, in which case your account with MailChannels will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.

46. Arbitration, Enforceability. If arbitration as described in the foregoing paragraphs is found to be unenforceable, then the parties agree that the exclusive jurisdiction and venue described in Section 34 will govern any action arising out of or related to this Agreement.

47. Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from MailChannels. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
The Service is offered by MailChannels Corporation, having its registered office at 925 W Georgia St., Vancouver, BC V6C 3L2, Canada. You may contact us by sending correspondence to the foregoing address or by emailing us at [email protected].

48. Enurement. This Agreement shall enure to the benefit of and be binding upon the parties hereto, their permitted assigns and their personal representatives, administrators, heirs and successors.

49. Further Acts, Things. Each of the parties to this Agreement shall at the request of any other party, and at the expense of MailChannels, execute and deliver any further documents and do all acts and things as that party may reasonably require in order to carry out the true intent and meaning of this Agreement.

EXHIBIT A – Reseller User Agreement

1. This OEM User Agreement (this “Agreement”) is part of that certain Terms of Service between You and MailChannels (the “TOS”). For purposes of this Agreement: (a) You are referred to herein as “OEM”, (b) MailChannels shall be considered a Third Party Provider (as defined below), and (c) Third Party Services (as defined below) shall include the Services (as defined in the TOS).

2. Third-Party Services.  The services provided to OEM User under this Agreement include certain services developed, provided or maintained by third-party service providers of OEM (“Third Party Providers”). Access to or use of any those services (“Third Party Services”) by OEM User are subject to any separate agreement that OEM User may enter into (or may have entered into) relating to those Third Party Services (each, a “Third Party Service Agreement”).  The terms of any Third Party Service Agreement will apply to the applicable Third Party Services provided under that Third Party Service Agreement in addition to the terms of this Agreement. Except as set forth in this Agreement, the terms of any Third Party Service Agreement will control in the event of a conflict between the terms of this Agreement and that Third Party Service Agreement. All other Third Party Services will be subject to the terms of this Agreement. Each Third Party Provider retains all right, title and interest in and to all Third Party Services and all software, hardware or other technology used to provide those services, and any additions, improvements, updates, and modifications thereto. Each Third Party Provider will be a beneficiary of the terms of this Agreement as to the Third Party Services provided by the Third Party Provider and will have all rights necessary to enforce this Agreement against OEM User in the case of any breach of those terms.

3. Representations, Warranties and Covenants.  OEM User represents, warrants, and covenants that: (a) OEM User has the legal right and authority to enter into this Agreement; (b) OEM User has the legal right and authority to perform its obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement OEM User enter into in connection with any of the services provided under this Agreement; (c) all Content (as defined below) is in compliance with the terms of this Agreement; (d) OEM User will access and use the services provided under this Agreement in compliance with the terms of this Agreement and all laws, rules and regulations applicable to its obligations under this Agreement; (e) OEM User will not export or re-export the Service except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable; (f) OEM User will not remove or export from the United States or allow the export or re-export of the Service (i) into (or to a national or resident of) any embargoed or terrorist-supporting country, (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (iv) otherwise in violation of any export or import laws; and (g) OEM User is not located in, under the control of, or a national or resident of any prohibited country or on any prohibited party list referred to in subsection (f) immediately above.

4. Disclaimer.  THE SOLE WARRANTIES REGARDING THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE THOSE EXPRESS WARRANTIES (IF ANY) PROVIDED TO OEM USER BY OEM UNDER THIS AGREEMENT.  ALL THIRD PARTY SERVICES ARE PROVIDED BY EACH THIRD PARTY PROVIDER STRICTLY “AS IS” AND “AS AVAILABLE” AND ALL THIRD PARTY PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ALL THIRD PARTY SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. THE SERVICES ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES (AS DEFINED BELOW). NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OEM OR ANY THIRD PARTY PROVIDER WILL CREATE ANY WARRANTIES BY OR ON BEHALF OF THIRD PARTY PROVIDER.

5. Indemnification.  OEM User agrees to and hereby does indemnify, defend, and hold harmless OEM, its Third Party Providers and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from or relate to any claim or allegation against any Indemnified Party arising from OEM User accessing or using the services provided under this Agreement (including any Third Party Services) or from any email or other communication generated or sent through such services or any content contained therein, whether or not in breach of this Agreement.

6. Limitation on Liability.  OEM USER AGREES THAT RESPONSIBILITY AND LIABILITY FOR THE SERVICES PROVIDED UNDER THIS AGREEMENT IS STRICTLY WITH OEM.  NO THIRD PARTY PROVIDER WILL HAVE ANY LIABILITY UNDER THIS AGREEMENT OR OTHERWISE IN CONNECTION WITH ANY SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING THIRD PARTY SERVICES), INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR OTHER FORM DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.  IN JURISDICTIONS WHERE THE FOREGOING LIMITATION OF LIABILITY IS NOT PERMITTED, THE LIABILITY OF ANY THIRD PARTY PROVIDER WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. NEITHER OEM NOR ANY THIRD PARTY PROVIDER WILL BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU, FOR (A) SENSITIVE DATA (AS DEFINED BELOW) SENT TO OEM OR SUCH THIRD PARTY PROVIDER; (B) VIOLATION OF ANY LAW BY OEM OR SUCH THIRD PARTY PROVIDER WHEN ACTING AT OEM USER’S DIRECTION; OR (C) THE SENDING BY OEM OR SUCH THIRD PARTY PROVIDER OF OEM USER’S EMAILS, INCLUDING ANY CLAIMS AGAINST OEM OR SUCH THIRD PARTY PROVIDER DUE TO OEM USER’S SENDING OR DATA COLLECTION PRACTICES OR CONTENT (AS DEFINED BELOW).

7. Data Privacy.  OEM and its Third Party Providers will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable, aggregated data and information resulting from or relating to the use or operation of the services under this Agreement (“Service Data”).  Any Service Data collected by OEM or any Third Party Provider will be owned by the party collecting the Service Data and may be used by that party for any lawful business purpose without a duty of accounting to OEM User subject to the then current privacy policy applicable to the services under this Agreement.  OEM User consents to the use and disclosure of personally identifiable and other data and information as described in this Agreement and in the then-current privacy policy applicable to the services provided under this Agreement (“Privacy Policy”).

8. Content.  OEM User will be responsible for all data, information and other content (“Content”) provided by OEM User in connection with the services provided under this Agreement.  OEM User will not provide and will not permit any third party to provide or to use the services provided under this Agreement to provide, any Content that: (a) infringes, misappropriates or violates any intellectual property or other rights of any third-party; (b) is defamatory, harmful to minors, obscene or child pornographic; (c) contains any viruses or programming routines intended to damage the services or any software, hardware or other technology used to provide the services or surreptitiously intercept or expropriate any data or information; (d) is false, misleading or inaccurate; or (e) constitutes Sensitive Data.  For the purposes of this Agreement, “Sensitive Data” means (i) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (ii) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), (iii) employment, financial, genetic, biometric or health information, (iv) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation, (v) account passwords, (vi) date of birth, (vii) criminal history, (viii) mother’s maiden name or (ix) or any other information or combinations of information that is deemed sensitive under the legal framework of any applicable jurisdiction.  OEM User will not use the Service for any high risk activities including, but not limited to, the operation of nuclear facilities, air traffic control, life support systems, emergency services or where the use or failure of the Service could lead to death, personal injury or environmental damage (collectively, “High Risk Activities”). OEM and its Third Party Providers do not intend uses of the Third Party Services to create obligations under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”) or similar laws and makes no representations that such Third Party Services satisfy the requirements of such laws. If OEM User is (or becomes) a Covered Entity or Business Associate (as defined in HIPAA) or a Financial Institution (as defined in GLBA), OEM User agrees not to use the Third Party Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) or Nonpublic Personal Information (as defined in GLBA).  OEM User acknowledges that email is an insecure medium that is generally not encrypted in transit, and security of information transmitted through the Internet can never be guaranteed. OEM and its Third Party Providers will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any Content. OEM and its Third Party Providers may take remedial action if any Content violates this Section, however OEM and its Third Party Providers are under no obligation to review any Content for accuracy or potential liability.

9. License Grant.  OEM User grants to OEM and its Third Party Providers all necessary rights and licenses in and to all Content necessary for OEM and its Third Party Providers to provide the services under this Agreement.   OEM User will maintain an adequate back-up of all Content and OEM and its Third Party Providers will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of any Content.  OEM User represents and warrants that OEM User has all necessary right, title, interest and consent necessary to allow OEM and its Third Party Providers to use all Content as set forth in this Agreement and as otherwise necessary to provide the services under this Agreement.