Services Agreement

PLEASE REVIEW THIS SERVICES AGREEMENT (THIS “AGREEMENT”) CAREFULLY, AS IT CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “CUSTOMER”) AND MAILFRESH LLC.

IN ORDER TO USE THE SERVICES OF MAILFRESH, YOU MUST FIRST READ THIS AGREEMENT AND INDICATE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW VIA YOUR ACCEPTANCE AND SIGNATURE OR ANY GIVEN SERVICE ORDER. IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU SHOULD NOT SIGN ANY SERVICE ORDER, IN WHICH CASE YOU WILL NOT BE ALLOWED TO USE THE SERVICES. THIS IS AN AGREEMENT FOR SERVICES AND YOU ARE NOT BEING GRANTED A LICENSE TO ANY SOFTWARE UNDER THIS AGREEMENT NOR ARE ANY INDIVIDUAL RESULTS BEING GUARANTEED.

  1. Services. MAILFRESH. provides on demand software and services (“Services”) for the electronic distribution of customer created and/or approved content to customer’s list of contacts (“Recipients”). Among other things, we provide customer support, and format and transmit the electronic content we are asked to distribute. “Customer” means any person or entity for whom the Services are designed or who uses the Services. MAILFRESH. assumes that its Services are used by you for business purposes. Our customers retain and authorize MAILFRESH. to transmit messages and provide information to their Recipients on their behalf. In the course of providing those Services, Customers provide us with personal information relating to their Recipients.
  2. During the term of this Agreement and subject to the terms and conditions set forth herein and any guidelines, rules or operating policies that MAILFRESH.may establish and post from time to time on www.mailfresh.com (the “Site”), including, without limitation MAILFRESH’s anti-spam policy, Privacy Policy and Prohibited Content Statement (collectively, the “Policies”) (which are incorporated herein by reference), MAILFRESH. agrees to use commercially reasonable efforts to provide Customer with the Services. From time to time, MAILFRESH. may modify the terms and conditions of this Agreement and/or the Policies. All such changes shall become effective upon posting of the revised Agreement and/or Policies, as the case may be, on the Site, and Customer’s use of the Services thereafter shall be subject thereto. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features, nor is it dependent upon any oral or written comments made by MAILFRESH. with respect to future functionality or features.
  3. Professional Services. In addition to the Services, Customer may purchase certain premium services (the “Professional Services”), which Professional Services may be customized pursuant to a mutually agreed upon written statement of work, provided to Customer. (“Statement of Work”). The Professional Services are provided by MAILFRESH. separate and distinct from the Services and are not required for Customer’s use or enjoyment of the Services. 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 each of MAILFRESH. and Customer.
  4. Purchase.
    Pricing for the Services is based upon standard subscriber level Customer chooses to purchase as indicated in the Service Order or a negotiated Service Order. The Service Order will clearly define and serve as a record of the Customer’s subscriber level, term, subscription fee, payment method and other account information. If the number of subscribers stored in Customer’s account exceeds the subscriber level purchased, Customer’s access to and use of the Services will be disabled until either the number of subscribers stored in its account is reduced or Customer upgrades its subscriber level to at least equal the number of subscribers stored in its account. Customer’s subscriber level may be upgraded (but not downgraded) at any time during the term of this Agreement. The total number of emails per month that may be sent by each Customer using the Service cannot exceed six (6) times the subscriber level limit. For example, if a Customer’s subscriber level limit is 100,000, Customer can send up to 600,000 emails per month. If Customer requires a sending limit higher than six (6) times Customer’s subscriber level limit per month, Customer should contact MAILFRESH’s sales group at support@mailfresh.com or 1-888-545-1106.
  5. Fees and Payment. In consideration for the Services to be provided by MAILFRESH. Customer agrees to pay the monthly subscription fees set forth in the Service Order (the “Subscription Fees”). Paid Subscription Fees are non-refundable. Customer acknowledges that from time to time, delivery of email messages sent using the Services may be blocked or prevented at destination email servers. Customer’s payment obligation set forth herein continues regardless of whether delivery of such email messages is prevented or blocked by a third party. In consideration for the Professional Services to be provided by MAILFRESH.if any, Customer agrees to pay the fees set forth in the Statement of Work or as otherwise provided to Customer by MAILFRESH., the “Professional Fees” together with the Subscription Fees, the “Fees” Payments for Fees and reimbursements for expenses, if any, will be billed monthly and will be due immediately upon receipt of invoice, or may be pre-paid. The Fees shall include all applicable foreign, federal, state and local taxes payable with respect to this Agreement. Any payment not received by MAILFRESH.on the due date may be subject, at MAILFRESH’s sole discretion, to a late fee equal to 1.5% (or the maximum rate permitted by law) of the amount then due, for each month overdue. In the event Customer fails to make timely payments when due, MAILFRESH. may, at its election, discontinue, terminate or suspend the Services and delete all Customers’ Recipient Data (as defined below) from its systems, in each case, without incurring any liability to Customer. Despite any such discontinuation or suspension, Customer acknowledges and agrees that it will be required to pay the Subscription Fees for the remainder of the term of this Agreement. For amounts outstanding after sixty (60) days from its receipt of the invoice therefor, Customer shall be responsible for and agrees to pay reasonable costs and expenses of collection, including, but not limited to court and attorneys’ fees and expenses. From time to time, and at any time, MAILFRESH. may require reasonable credit guarantees before continuing its provision of the Services or the Professional Services hereunder.
  6. Customers’ Recipient Data. In offering the Services, we may collect personal information about Recipients. MAILFRESH.will not own any data, information or material that any of its Customers submit to MAILFRESH. in the course of its provision of the Services (“Customers’ Recipient Data”). Customers are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customers’ Recipient Data, and Customers are responsible for maintaining, securing and storing all Customers’ Recipient Data in accordance with applicable law. MAILFRESH. will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customers’ Recipient Data.
  7. Customer Information. MAILFRESH. collects certain personal and business-related information about its Customers in order to provide the Services (the “Customer Information”). If you have provided your contact information, MAILFRESH. may contact you for marketing purposes by various means, including but not limited to regular mail, email or telephone. When you activate an MAILFRESH. 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 communication methods.
  8. Disclosures of Customer Information. In addition to the uses of Customer Information set forth in Section 7, Customer agrees that MAILFRESH. may use the Customer Information in connection with its provision of the Services. If Customer purchased the Services as a result of the marketing efforts of a MAILFRESH.marketing partner, Customer agrees that MAILFRESH. may disclose the Customer Information to such marketing partner. Notwithstanding the foregoing, MAILFRESH. will not provide any Customer Information to any third party without Customer’s authorization and will use reasonable efforts to prohibit any third party that receives any such Customer Information from selling or redistributing such Customer Information without Customer’s authorization.
  9. Passwords. In connection with MAILFRESH’s provision of the Services, MAILFRESH. will send to its Customer’s designated email address (designated by Customer at the time an account is established), information such as user IDs and/or passwords which will enable Customer to access the Software (the “Passwords”). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify MAILFRESH. promptly if there is a loss or compromise of any Passwords and Customer will be solely responsible for all actions and fees incurred as a result of such incident resulting from the Customer’s negligence or intentional misconduct. Any unauthorized use of user IDs or Passwords by Customer will constitute a material breach of this Agreement.
  10. Proprietary Rights. This is an agreement for services and Customer is not granted any license hereunder. All software embedded in the Services (the “Software”), and the Services, are and shall remain the sole and exclusive property of MAILFRESH.. Accordingly, Customer acknowledges that MAILFRESH. owns all rights, title and interest in and to the Software and the Services, including, without limitation, all United States and international patent rights, copyrights, trademark rights, trade secret rights, and all other proprietary rights pertaining thereto. Except as expressly granted in this Agreement, Customer will not have or acquire any rights or interest in or to the Software or the Services. Customer acknowledges that the Software contains proprietary information and trade secrets of MAILFRESH.. Customer will not take any actions inconsistent with MAILFRESH’s ownership of each of MAILFRESH’s rights in and to the Software. Customer agrees that Customer will not directly or indirectly: (i) assign, distribute, license, sublicense, transfer, sell, rent, lease, time share, grant a security interest in, or otherwise transfer any rights in or to the Software, or make the Software available to third parties except as authorized by this Agreement; (ii) modify, translate, reverse engineer, decompile or disassemble the Software for any purpose, including without limitation, the creation of derivative works or similar products; (iii) upload, link to or post any portion of the Software on a bulletin board, intranet, extranet or website; (iv) use or distribute the Software in violation of any applicable laws, regulations or export restrictions; or (v) possess or use the Software in any format other than machine-readable format. All rights in the Software not explicitly granted herein, are reserved by MAILFRESH.. If you are using the Services in any country within the European Union, the prohibitions set forth herein will not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
  11. Use of Services. Customer acknowledges and agrees that it will use the Services only to access, employ, utilize, or display the Software solely for Customer’s “internal business purposes” by Customer’s employees or by independent contractors hired by Customer. 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 volatile 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. Customer agrees to report immediately to MAILFRESH., and to use best efforts to stop immediately, any violation of the terms and conditions set forth in this Section 11 or any of the Policies.
  12. No Tampering. . Each email message that is sent using the Services must contain an “unsubscribe” link that allows visitors to remove themselves from Customer’s mailing list and a link to MAILFRESH’s Policies. Customer agrees that it will not remove, disable or attempt to remove or disable either link. Further, each such email message may contain an automatic identifying footer such as “Powered by MAILFRESH” Customer agrees that it will not remove, disable or attempt to remove or disable such footer.
  13. Confidential Information. Each of MAILFRESH. and Customer, as a Receiving Party (as defined below), will hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). In the event that the Receiving Party is required by law to disclose Confidential Information of the Disclosing Party, the Receiving Party will provide the Disclosing Party with prompt written notice of such pending disclosure. For purposes hereof, “Confidential Information” means any information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that relates to such Disclosing Party’s business affairs, internal operations, personnel, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party’s possession prior to receipt of the same from the Disclosing Party, as evidenced by the Receiving Party’s prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information; (iv) can be proven by competent evidence to have been independently developed by the Receiving Party; (v) is furnished by the Disclosing Party to a third party without restriction on the third party’s right of disclosure; (vi) is approved in writing for release by the Disclosing Party; or (vii) is required to be disclosed by order of court or law.
  14. Representations, Warranties and Covenants. Customer represents, warrants and covenants to MAILFRESH. 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.
  15. 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, MAILFRESH. 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. MAILFRESH. 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.
  16. Limitation of Liability. IN NO EVENT WILL MAILFRESH. 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 MAILFRESH. OR ITS REPRESENTATIVES HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. FURTHER, IN NO EVENT WILL MAILFRESH. 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 MAILFRESH. FOR THE SERVICES AS OF THE DATE OF THE CLAIM, LOSS, OR DAMAGE. In the event of any failure, or MAILFRESH.non-provision, of the Services (or the Professional Services), Customer’s sole and exclusive remedy shall be for MAILFRESH. to use commercially reasonable efforts to repair or provide the Services.
  17. Indemnification. Customer agrees to indemnify, defend and hold harmless MAILFRESH., 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 Customer’s 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.
  18. Term and Termination. The Service Order determines the term of your Agreement. This Agreement will automatically renew and you will continue to be billed for the term indicated on the Service Order if you do not terminate this Agreement by 7:00PM PST on the last business day before the automatic renewal date. MAILFRESH’s billing cycles are on a per calendar month basis. If Customer desires to terminate this Agreement, such a request can only be made via phone by calling 1-888-545-1106 prior to 6:00PM EDT of the last business day before the automatic renewal date based on the term indicated in the Service Order. If Customer wishes to terminate only Professional Services provided hereunder, it should contact its account manager prior to such services being performed. MAILFRESH. 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, MAILFRESH. 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 MAILFRESH.to terminate immediately this Agreement, to terminate MAILFRESH’s provision of the Services and to pursue all available equitable and legal remedies. Upon termination of this Agreement, Customer’s payment of all unpaid and outstanding Fees and Customer’s written request received by MAILFRESH.within thirty (30) days of such termination, MAILFRESH. will provide Customer with an electronic file of the Customers’ Recipient Data. Customer acknowledges and agrees that after the thirtieth (30th) day following termination, MAILFRESH. has no obligation to retain the Customers’ Recipient Data and may delete and destroy such Customers’ Recipient Data without providing Customer with notice of such deletion.
  19. Governing Law. This Agreement will be governed by the laws of the United States, state of Nevada as applied to agreements entered into. 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.
  20. 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 Las Vegas, Nevada. 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, MAILFRESH. shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of Nevada, to which jurisdiction, for such purpose, Customer hereby irrevocably consents.
  21. Relationship. This Agreement does not create a partnership, joint venture or agency relationship between MAILFRESH. and Customer. Customer does not have any right, power, or authority to act as a legal representative of MAILFRESH.
  22. Assignment. Customer 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 MAILFRESH. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
  23. 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.
  24. 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.
  25. Entire Agreement. This Agreement, the Policies and the Statement of Work(s), if any, constitute the entire agreement and understanding between MAILFRESH.and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the MAILFRESH. 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.
  26. No Waivers. MAILFRESH’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.
  27. Notice. MAILFRESH.may provide Customer with general notice by electronic mail to Customer’s email address of record, or by written communication sent by first class mail or pre-paid post to Customer’s address of record, or to such other address designated by Customer and communicated to MAILFRESH. in accordance with the notice delivery provisions of this Section 27. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing if sent by first class mail or pre-paid post, or twelve (12) hours after sending if sent by electronic mail. Except as otherwise provided herein, Customer must give notice to MAILFRESH. (such notice shall be deemed given when received by MAILFRESH.) by using one of the following means: 1) letter sent by confirmed facsimile to MAILFRESH.at the following fax number: 1-888-545-1106 ; 2) letter delivered by a nationally recognized overnight delivery service; or 3) by first class postage prepaid mail to MAILFRESH.at the following address: MAILFRESH., Attn: Support Department; 6130 W Flamingo, Ste 389 Las Vegas, Nevada 89103. Notwithstanding the foregoing, Customer must adhere to the terms and conditions set forth in Section 19 above to provide MAILFRESH. with notice of its intention to terminate this Agreement. Either the Customer or MAILFRESH. may designate a different mailing address for notice delivery by providing the other party with such different address in accordance with the notice delivery provisions of this Section 27.
  28. Export Restrictions. Customer acknowledges that the Services may be subject to The United States’ 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.
  29. Miscellaneous. Except as otherwise expressly set forth herein, this Agreement may be amended or modified only by MAILFRESH. and may not be modified by course of conduct. The section headings used herein are for convenience only and will not be given any legal meaning. This Agreement is made for the benefit of the parties only and there are no intended third-party beneficiaries.

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