|Revised February 18, 2018
Please contact iPost at +1.415.382.4000 or email@example.com if you have questions about this document.
1.1 Capitalized Terms
All Capitalized terms used in this iPost Terms and Conditions but not defined in this iPost Terms and Conditions shall have the meaning ascribed to them in the Client Agreement.
1.2 Email Recipient
An “Email Recipient” is a single email address, used by a single individual for receipt of email.
1.3 Mailing List
A “Mailing List” is a list of Email Recipients contained in a computer file.
A “Mailing” is a set of similar email messages, sent as a group by iPost on behalf of Client, to Email Recipients on a Mailing List.
1.5 Mailing content
1.6 iPost IP
“iPost IP” means all intellectual property and other rights, and all derivates of, the iPost Mailing Manager website, iPost API access, all software provided by iPost under this Agreement, and all information, including but not limited to, data and documentation, available on the website, collected by iPost during the performance of this Agreement, or provided by iPost under this Agreement, except the Mailing Content, Mailing Lists, and Marks.
2. PERFORMANCE OF SERVICES
2.1 Opt-In Email list
a) Client acknowledges that iPost only sends, and Client will only request that iPost send, email to Email Recipients that have explicitly requested that Client send them email (Email Recipients have “opted in”) and that have not requested that Client not send them email (Email Recipients have not “opted out”). “Opted in” Email Recipients are those (1)(a) whose email addresses were collected for Client through iPost’s hosted subscription Service, and (b) for whom Client can produce written evidence (including, but not limited to, emailed or written requests, HTTP web logs, database records, or the opt-in mechanism itself) demonstrating the Email Recipient’s granting of permission to receive email on the topic and under the brand of the Client’s Mailing; or (2) who have been explicitly approved by iPost on a case by case basis.
b) Client acknowledges that Email Recipients who do not constitute “opted in” Email Recipients for the purposes of this Agreement include, but are not limited to: (a) Email Recipients who have not given explicit permission to be sent email on the topic or under the brand of the Client’s Mailing, (b) Email Recipients obtained from a third party or via a “list append” process (except as provided by Section 2.1(a)(2)), and (c) addresses gathered from web pages or other public data sources.
2.2 Opt-Out Instructions
a) Client agrees to include in all Mailing Content clear instructions describing how to unsubscribe from the Mailing List (or “opt-out”), and to maintain a functional and sufficient opt-out mechanism. If Client does not have such instructions and opt-out mechanism as may be determined by iPost, or if Client specifically requests that such services be performed by iPost, iPost will provide such services and Client agrees that such services will be included within the Services. Opt-outs received by iPost via any mechanism will not be sent any email messages by iPost on Client’s behalf thenceforth, except email messages directly relating to the opt-out request.
b) iPost has the right to refuse to deliver, or to delay delivery of, any Mailing to a Mailing List that, in iPost’s sole determination, contains Email Recipients that have not opted-in. In this case, iPost will inform Client within one business day how iPost concluded that the Mailing List was not entirely opt-in as above described in Section 2.1.
2.3 Third-Party Blocking
Client acknowledges that certain third parties, including, but not limited to, Internet Service Providers (“ISPs”) or “realtime blocklist” organizations (organizations which create lists of entities which, in their opinion, are alleged to have not obtained adequate consent from e-mail Email Recipients and Internet service providers to deliver email) may ask or effectively require iPost to impose particular opt-in, opt-out, or other procedures for any Mailing List. In this case, iPost will, using commercially reasonable efforts, work with Client to undertake whatever steps may be reasonably necessary in order to institute the required procedure.
2.4 Request and Complaint Handling
iPost, Client, or our respective ISPs may receive an opt-out request or a complaint by e-mail, by phone, by fax, or by postal letter. iPost shall respond within two business days of receipt of any opt-out request or complaint in the same manner as the request was received (e-mail, phone, fax, or postal letter) if iPost believes it can handle the request with no further assistance. iPost will forward any requests or complaints that iPost feels it cannot reasonably handle to Client. Client agrees to respond within two business days of receipt if the request or complaint came from an individual Email Recipient, and within one business day of receipt if the request came from an ISP or “realtime blocklist” organization. Client agrees to send iPost a copy of all responses Client makes to requests and complaints at the same time the response is sent to the requesting or complaining party.
Client represents and warrants that all Mailing Content and Mailing Lists, whether created by Client or by iPost as a Service, and the collection and use of the Mailing Content, Mailing Lists, and personal data about Email Recipients pursuant to this Agreement is in compliance with all applicable rules, including, but not limited to, local, state, provincial, federal and foreign laws, directives, and regulations (“Rules”). Client understands that such Rules are subject to change, and it is Client’s sole responsibility to maintain compliance. iPost has the right, but not the obligation, to suspend or cancel a Mailing at iPost’s sole discretion if iPost believes the Mailing Content or collection or use of the Mailing List is not in compliance with any applicable Rule. iPost assumes no obligation to analyze the Mailing Content or the Mailing Lists, whether created by Client or by iPost as a Service, or to analyze the collection and use of the Mailing Content, Mailing Lists, and personal data about Email Recipients pursuant to this Agreement, for compliance with applicable Rules.
2.6 Client List
a) Client represents and warrants that it owns or has an appropriate license to all Mailing Lists delivered to iPost. Client will, upon request by iPost, provide iPost with written documentation (including, but not limited to, emailed or written requests, HTTP web logs, database contents, or the opt-in mechanism itself) showing that each Email Recipient gave permission for Client to send them email on the topic and under the brand of the Mailing.
b) If Client does not remove opt-outs from their own or their clients’ own opt-in list(s), Client agrees to provide iPost with a list of all opt-outs that have occurred since the last Mailing to the opt-in Mailing List(s).
2.7 Mailing Content
a) Client represents and warrants that Client owns or has an appropriate license to all Mailing Content.
b) Client will provide iPost with all necessary Mailing Content and bears full responsibility for the Mailing Content. iPost is not responsible for the Mailing Content in any way, nor is iPost responsible for any content linked by the Mailing Content.
c) Client represents and warrants that the Mailing Content and directly linked content do not include any material that:
(1) is unlawful, threatening, abusive, libelous, defamatory, or obscene,
(2) contains misleading or deceptive information or any misrepresentation,
(3) is a chain letter, or illegal pyramid or Ponzi scheme,
(4) violates any entities’ or person’s copyrights, trademarks, or any other intellectual property rights or rights to privacy and publicity,
(5) contains any deceptive information implying endorsement, affiliation, or sponsorship with any entity or person without their written consent
(6) contains or directly links to any virus, worm, trojan horse, or other contaminating or destructive software feature prior to delivery of Mailing Content to iPost.
d) iPost has the right to refuse to send any Mailing Content that iPost believes violates any of the above terms or any applicable Rule.
3. INTELLECTUAL PROPERTY
3.1 License Grant
a) To the extent included within the Services pursuant to Article 1 of the Client Agreement, iPost grants Client during the Term and subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable, revocable, worldwide right and license to access and use the iPost IP and Services solely by Client’s employees and solely for Client’s own internal use.
b) This Agreement and all obligations, rights and licenses granted under this Agreement are personal to Client and may not be transferred or sublicensed without the prior written consent of iPost.
c) Other than as expressly set forth in this Agreement, no other rights, title or interest are granted under this Agreement.
3.2 iPost ownership
a) Except as expressly licensed, iPost retains all right, title, and interest in and to the iPost IP. iPost may sell, license, modify, publish, or distribute any or all of the iPost IP to any other third party at iPost’s discretion.
b) Client will not, nor will Client authorize any third party to, reverse engineer, decompile, copy, modify, disassemble, or distribute any part of the iPost IP. Client will not remove any notice, including but not limited to any proprietary, confidentiality, copyright, trademark, or patent notice, from any iPost IP
3.3 Client ownership
All Mailing Content and Mailing Lists developed by iPost as a Service under this Agreement shall be deemed a “work for hire” and owned by Client. iPost acknowledges that Client owns the Mailing Content and Mailing Lists, whether developed by iPost as a Service under this Agreement, or supplied to iPost by Client under this Agreement (“Client IP”), and iPost has no rights to the Client IP beyond those expressly provided by this Agreement. Client hereby grants iPost a license to use, store, copy, publish, transmit, display, and publicly perform the Client IP to fulfill the terms of this Agreement.
3.4 Use of Marks
a) During the Term, each party (the “Owner”) grants to the other party (the “Licensee”) a worldwide, non-exclusive, non-transferrable, revocable, royalty-free, limited, right and license to use the Owner’s Marks only for the limited purpose of Licensee’s performance hereunder in connection with the Licensee’s advertising, promotion and provision of its own services for the sole purpose of identifying Client as a client of iPost and iPost as a service provider to Client. Client gives iPost permission to link from the iPost website to Client’s website during the Term of this Agreement.
d) All use of the Owner’s Marks by Licensee and all goodwill appurtenant thereto shall inure to the sole benefit of Owner. Licensee shall not claim ownership of or register any name or mark (including domain name) that incorporates a same or similar term to the Owner’s Marks. Licensee shall obtain no right, title or interest in and to the Owner’s Marks beyond the limited use license granted for the purposes set forth herein.
e) All use of the Marks by Licensee is subject to the review, specification and approval of Owner.
f) Licensee shall give notice and attribution of Owner’s exclusive ownership of Owner’s Marks through the use of the legal notice “®” next to each federally registered Mark, and the legal notice “tm” next to each other Mark, whenever prominent use is made thereof, and where space permits in advertising and promotional materials and information (including but not limited to web pages), the use of the following legend (with appropriate changes for registered or un-registered service marks or trademarks as indicated by bracketed language): “[MARK] is a [federally registered] [trademark] service mark owned exclusively by [Client or iPost]. Used under license.”
g) Licensee shall have no right to use the Owner’s Marks upon termination of this Agreement for any reason and upon termination of this Agreement, Licensee shall immediately cease all use of the Owner’s Marks (except as may be permitted by applicable fair use laws) and to destroy all advertising and marketing collateral bearing the Owner’s Marks and to give notice of full compliance with Licensee’s obligations under this provision within 30 days after termination of this Agreement.
h) Licensee shall immediately notify the Owner of any actual or suspected unauthorized use of the Owner’s Marks.
i) A violation of this Section 3.4 shall cause the Owner irreparable harm and therefore the Owner shall be entitled to immediate injunctive relief without proof of actual harm or damages.
j) Licensee shall indemnify, defend and hold harmless Owner from any and all claims, causes of action, liability and damages (including reasonable attorneys’ fees, costs and litigation expenses) arising out of or related to Licensee’s use of the Owner’s Marks (excluding any such claim, action, liability or damages arising solely from an allegation that the use of the Owner’s Marks violates the rights of a third party).
4. AVAILABILITY, AND DISCLAIMER OF WARRANTY
a) The iPost IP and Services will be reasonably available for access and use during the Term, 24 hours per day, 7 days per week, 365 days per year. In the event of a scheduled or unexpected period of downtime, iPost will use reasonable efforts to notify Client of the downtime and expected duration. iPost may suspend some or all Services or access and use of iPost IP or products, or may modify some or all Services, iPost IP or Products, or access and use of Services, iPost IP or products, as reasonably necessary to comply with any restrictions or prohibitions imposed by any third party.
b) iPost warrants that (i) to its knowledge, the iPost IP and the rights licensed herein do not infringe the intellectual property rights of any third party and (ii) except with respect to Mailing Content, Mailing Lists and any other items provided by Client, iPost will use commercially reasonable measures to screen the iPost IP, Services and Products to avoid introducing any virus or other destructive programming that are designed to disable or damage Client’s systems.
c) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL IPOST IP, SERVICES AND PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND TO THE MAXIMUM EXTENT PROVIDED BY APPLICABLE LAW, AND IPOST DISCLAIMS ALL WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OR REPRESENTATION THAT THE ACCESS USE, FUNCTION, OR OPERATION OF THE IPOST IP, PRODUCTS, OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL NOT EXIST.
5. LIMITATION OF LIABILITY
EXCEPT FOR BREACH OF CONFIDENTIALITY AND THE PARTIES’ RESPECTIVE EXPRESS INDEMNITY OBLIGATIONS, NEITHER PARTY NOR ITS RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE USE OR INABILITY TO USE THE SERVICES, PRODUCTS, OR IPOST IP, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER OF LIABILITY INCLUDES, BUT IS NOT LIMITED TO, ANY FAILURE OF PERFORMANCE; ERROR, OMISSION, INTERRUPTION, DELETION OF OR DEFECT IN A MAILING LIST; DELAY IN OPERATION, TRANSMISSION OR DELIVERY; COMPUTER VIRUS, COMMUNICATION LINE FAILURE; OR THEFT, OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORDS, PROGRAMS OR FILES. EXCEPT FOR BREACH OF CONFIDENITIALTIY AND IPOST’S EXPRESS INDEMNITY OBLIGATIONS, IN THE EVENT ANY LIABILITY IS ASSESSED UNDER APPLICABLE LAW, IPOST’S LIABILITY, AND CLIENT’S EXCLUSIVE REMEDY, SHALL BE LIMITED TO DAMAGES IN THE AMOUNT OF MONEY ACTUALLY RECEIVED BY IPOST FROM CLIENT UNDER THIS AGREEMENT.
a) Client shall indemnify and defend iPost at all times during and after the Term of this Agreement against (a) any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense, interest, award, judgment, diminution in value, fine, fee, and penalty, or other charge, arising out of or relating to any breach of any representation or warranty by Client under this Agreement; and (b) any court filing fee, court cost, arbitration fee or cost, witness fee, and each other fee and cost of investigating and defending or asserting any claim for indemnification under this Agreement, including, without limitation, in each case, attorneys’ fees, other professionals’ fees, and disbursements. iPost is entitled to participate in the defense of any third party claim with its own counsel and at its own expense. Client may not effect any compromise or settlement without the written consent of iPost.
b) iPost shall indemnify and defend Client at all times during and after the Term of this Agreement against (a) any liability, loss, damages (including punitive damages), claim, settlement payment, cost and expense, interest, award, judgment, diminution in value, fine, fee, and penalty, or other charge, arising out of or relating to any breach of any representation or warranty by iPost under this Agreement; and (b) any court filing fee, court cost, arbitration fee or cost, witness fee, and each other fee and cost of investigating and defending or asserting any claim for indemnification under this Agreement, including, without limitation, in each case, attorneys’ fees, other professionals’ fees, and disbursements. Client is entitled to participate in the defense of any third party claim with its own counsel and at its own expense. iPost may not effect any compromise or settlement without the written consent of Client.
a) Except as otherwise required by law, neither party shall, nor shall cause each of its directors, officers, employees, agents, and representatives (collectively, “Representatives”) to (a) disclose the Confidential Information (defined below) to any person or entity other than Representatives of of the receiving party that need to know the Confidential Information for the purposes contemplated by this Agreement and agree to be bound by the provisions of this Section; or (b) use the Confidential Information for any purpose other than the purposes contemplated by this Agreement. Promptly upon the written request of the disclosing party, the receiving party shall, and shall cause its Representatives to, return to the disclosing party or destroy all Confidential Information. If the receiving party destroys the Confidential Information, it shall certify that it has done so in writing and promptly deliver that certificate to the disclosing party.
b) “Confidential Information” means the terms of this Agreement, all information relating to either party or their respective businesses (whether provided in writing or otherwise) that has been provided or shown to the other party or any of its Representatives by or on behalf of the disclosing party or any of its Representatives, and all notes, analyses, compilations, studies and other materials containing any of the above information, but the term “Confidential Information” excludes information that, as shown in writing, (a) becomes generally publicly available other than as a result of disclosure by the receiving party or any of its Representatives, or (b) becomes available to the receiving party on a nonconfidential basis from a third party that is not bound by a similar duty of confidentiality.
Neither party may assign this Agreement to another entity except:
a) in connection with and as a direct outcome of a sale of the majority of the assets or stock of the party, or
b) in connection with and as a direct outcome of a merger of the party with another entity, or
c) with written permission of the other party.
8.2 Relationship of the Parties
This Agreement does not constitute or create a joint venture or partnership. Each party shall not be held liable for any losses, debts or other obligations of the other party except those that are expressly agreed to or assumed in this Agreement.
8.3 Applicable Law, Fees and Expenses
This Agreement must be construed, and its performance enforced, under California law without regard to its conflicts of laws provisions. The prevailing party in an action, dispute, proceeding, or attempt to collect amounts owed under this Agreement, and all appellate proceedings, is entitled, in addition to any other relief to which the prevailing party is entitled, and the non-prevailing party shall pay, reasonable attorneys’ fees, court costs, and expenses incurred, directly or indirectly, by the prevailing party, even if not recoverable by law as court costs.
Any provisions that by their nature reasonably would be expected to survive this Agreement shall survive termination of this Agreement.
8.5 Severability of Agreement
If a court, arbitrator, or competent jurisdiction holds any part of this Agreement to be illegal, unenforceable or invalid in whole or in part for any reason, the validity and enforceability of the remaining portions are not affected.
8.6 Force Majeure
If the performance of this Agreement is prevented, restricted, interfered with, or obstructed by force majeure, then iPost is excused from performance of this Agreement during that time.
This Agreement must be construed as if drafted jointly by the parties. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be deemed to be an original and all of which taken together will constitute the same instrument. The textual headings contained in this Agreement are inserted for convenience only, and do not constitute a part of this Agreement for any other purpose.
8.8 Waiver and Modification
All waivers to any term of this Agreement must be made in writing and approved by both parties. This Agreement may be modified from time to time by iPost, in which case Client will be notified via one or more of the approved mechanisms for Notices defined in this Agreement and per the terms for modification defined in the Client’s iPost Client Agreement.
8.9 Successors, Assigns, and Beneficiaries
This Agreement binds and benefits the parties who have agreed in writing to be bound by this Agreement and their respective permitted successors and assigns. This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the parties who have agreed in writing to be bound by this Agreement.
Each party giving or making any notice, request, demand or other communication (each a “Notice”) pursuant to this Agreement shall give the Notice in writing and use one of the following methods of delivery, each of which for purposes of this Agreement is a writing: personal delivery, Registered or Certified Mail (in each case, return receipt requested and postage prepaid), nationally recognized overnight courier (with all fees prepaid), facsimile, web page displayed to the Client upon Client login to the iPost Mailing Manager website, or e-mail. Any party giving a Notice shall address the Notice to the appropriate person at the receiving party (the “Addressee”) at the address listed on the signature page of the Client Agreement or to another Addressee or another address as designated by a party in a Notice pursuant to this Section. A Notice is effective only if the party giving the Notice has complied with this Section and if the Addressee has received the Notice.