Written on December 19, 2018
Please contact us at ShuttleCloud Corp., Attn: Legal Department, 420 Eagleview Blvd, Exton, PA 19341, USA or by email to: email@example.com if you have any questions about this Agreement.
Subject to Customer’s payment of the applicable fees and under the terms of and subject to the restrictions in this Agreement, the Company will provide to Customer the Email MeterTM statistics and analytics tool (the “Product”) purchased by Customer pursuant to an Order Form between Customer and the Company (an “Order Form”) for the term set forth in the Order Form. Customer may use and access the Product in connection with Customer’s compatible electronic mail account. Customer’s rights to use the Product are non-exclusive and non-transferable. The Company may from time to time modify the Product and add, change, or delete features of the Product in its sole discretion. Customer’s continued use of the Product after any such changes to the Product constitutes Customer’s acceptance of these changes.
Depending upon the version of the Product selected by Customer, the Company may require domain-wide access to all email accounts in the domain, or to specific email accounts, registered by Company for use with the Product in order to process the metadata of such emails (including headers, but excluding the actual contents and attachments of such emails). Customer acknowledges and agrees that it has all necessary rights, consents, and authority to use the Product with respect to all email accounts registered by Customer to be used with the Product, including, without limitation, the right to access all of the email information and resulting reports, analytics, and other metrics associated with such accounts. When using the Product for an entire domain, Customer’s email service administrator, on behalf of Customer, acknowledges that he or she is allowed to do so, and is also allowed to access the Product and resulting information and the Product will have access to the email metadata of all accounts within the domain, unless the administrator takes further steps to limit the access to a subset of users. Company agrees that the email header information obtained by the Company hereunder will be used by the Company solely to the extent necessary to provide the Product to Customer.
Customer further acknowledges and agrees that Customer is solely responsible for: (a) all use of the Product by Customer and any other party utilizing Customer’s email account(s), with or without authorization; (b) maintaining the confidentiality of Customer’s email account(s) and password(s); and (c) ensuring that Customer’s use of the Product and Customer’s email account(s) complies with all applicable Federal, state, and local privacy and data security rules, regulations and laws. Customer further acknowledges and agrees that the Company has no control over and shall not be responsible for any changes by Customer’s email provider to the email application, including, without limitation, such changes which may affect the Product, and Customer shall indemnify and hold the Company harmless with respect to any losses, damages, or claims arising therefrom, pursuant to Section 14 below.
If Customer registers for a free trial, the Company will make the Product available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Product, or (b) the start date of any purchased subscriptions ordered by Customer for the Product. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
CUSTOMER DATA ON THE COMPANY’S SYSTEMS OR IN THE COMPANY’S POSSESSION OR CONTROL, CUSTOMER REPORTS, AND ANY CUSTOMIZATIONS MADE TO THE PRODUCT BY OR FOR CUSTOMER DURING THE FREE TRIAL MAY BE PERMANENTLY LOST OR DELETED AT THE END OF THE FREE TRIAL PERIOD UNLESS CUSTOMER PURCHASES THE SAME PRODUCT AS THOSE COVERED BY THE TRIAL OR PURCHASES AN UPGRADED PRODUCT BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DURING THE FREE TRIAL THE PRODUCT IS PROVIDED “AS-IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES.
Customer shall pay the Company the applicable fees as set forth in an order form issued by the Company and accepted by Customer (an “Order Form”). Unless otherwise set forth on such Order Form, fees shall be payable within thirty (30) days after the date of Company’s invoice. In the event Customer fails to make payment of the applicable fees when due, the Company reserves the right to suspend access to the Product or terminate this Agreement and Customer’s right to use the Product. Customer will pay the Company interest at the rate of one percent (1%) per month or the maximum amount permitted by applicable law, whichever is less, on any undisputed amount not fully paid within ten (10) days of its due date until any such amount is fully paid. If Customer breaches its obligation to make timely payment as provided hereunder, Customer agrees to pay all of the Company’s costs of collection, including, without limitation, all court costs and attorneys’ fees. In the event Customer has obtained the Product without fees or expense, the foregoing provisions of this Section 5 shall not apply, and the Company shall have the right to suspend access to the Product or terminate this Agreement and Customer’s right to use the Product at any time and without liability to Customer.
The Company represents and warrants to Customer that the Company: (i) has the full power and authority to enter into this Agreement; (ii) will not violate any local, state, national or international law or regulation in connection with the provision of the Product; and (iii) will provide the Product in accordance with this Agreement subject to the terms and conditions hereof.
EXCEPT AS PROVIDED FOR IN SECTION 7 ABOVE, THE COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; ALL SUCH REPRESENTATIONS AND WARRANTIES INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, TITLE AND NON-INFRINGEMENT, ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT ANY REPORTS, ANALYSIS, OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE PRODUCT, OR THAT USE OF THE PRODUCT OR ANY PORTION THEREOF WILL BE WITHOUT FAILURES, UNINTERRUPTED, OR ERROR-FREE, WILL BE ACCESSIBLE IN ANY PARTICULAR HARDWARE/SOFTWARE ENVIRONMENT, OR WILL MEET CUSTOMER’S REQUIREMENTS. THE PRODUCT IS NEITHER DESIGNED NOR INTENDED FOR HIGH-RISK ACTIVITIES.
Under no circumstances will the Company be held liable for any loss of Customer’s email, data, records, or other materials. Customer acknowledges that the Company has no control over the functioning of the Internet, G Suite, Gmail, or any other email provider, email service, or third-party applications used in connection with the Product, and the Company makes no representations or warranties of any kind regarding the performance of the Internet or any such third-party applications.
Customer agrees that the Company owns all intellectual property rights in and to the Product including but not limited to all software, scripts, programming and comparable materials used therein or related thereto (“Software”), trademarks, trade secrets, look and feel, structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays, and any other proprietary rights associated therewith. Customer shall not copy, modify, reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code for the Software. Customer further agrees not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Product available to any third party for such third party’s benefit. The Company reserves all rights in the Product not expressly granted to Customer hereunder. The Company shall have a royalty-free, worldwide, transferable, and perpetual license to use or incorporate into the Product any suggestions, ideas, enhancement requests, feedback, or other information provided by Customer relating to the Product.
The Company may sell maintenance, technical, or other support for the Product or the Software pursuant to a separate agreement between the Customer and the Company. Except to the extent otherwise agreed by the Company in a separate written agreement with Customer, the Company expressly disclaims any obligation to provide updates, upgrades, bug fixes, patches or any similar service and Customer acknowledges that the Company has no express or implied obligation to do so and are not entering into this Agreement in reliance on any of the foregoing services. The Company may, from time to time, provide bug fixes for bugs or other; provided, however, in doing so the Company does not obligate itself to do so in future.
(a) Term. This Agreement will be effective as of the earlier of: (a) the date Customer accepts this Agreement, or (b) the date the Customer first accesses or uses the Product, and, unless sooner terminated as herein provided, will continue until the term set forth in all active Order Forms hereunder have expired or been terminated.
(b) Termination for Convenience. The Company may discontinue providing the Product and terminate this Agreement at any time in its sole discretion and without notice to Customers receiving the free version of the Product. For Customers under a paid subscription, the Company will provide thirty (30) days’ prior notice of such termination and will refund Customer on a prorated basis for any fees prepaid by the Customer for the unused remainder of the term following the effective date of such termination. Customer may discontinue its use of the Product and terminate this Agreement at any time in its sole discretion by providing the Company with at least thirty (30) days’ prior written notice of its intent to so terminate. In the event of Customer’s termination for convenience, Customer will not be entitled to a refund of any fees paid and Customer agrees to pay the Company any unpaid fees covering the remainder of the term set forth in the applicable Order Form within thirty (30) days after the effective date of such termination.
(c) Termination for Breach. Either party may terminate this Agreement (i) thirty (30) days after providing written notice to the other party of a material breach of its obligations under this Agreement if such breach remains uncured at the expiration of such 30-day period, or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any such termination shall relieve the parties of all rights, obligations and liabilities to the other except, in the case of termination by the Company for Customer’s breach, for the payment of fees due by Customer for the remainder of the term set forth in the applicable Order Form, and except as provided for in Sections 8, 9, 10 and 12 through 17, which Sections shall survive the termination of this Agreement. In no event will termination relieve Customer of its obligation to pay any fees payable to the Company for the period prior to the effective date of termination.
“Confidential Information” means any information or data that is disclosed by one party to the other party pursuant to this Agreement that is marked as confidential or that such party does not generally make available to the public. Confidential Information does not include information that the receiving party can show: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records. A receiving party agrees: (a) to hold the disclosing party’s Confidential Information in confidence, and to protect the disclosing party’s Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party’s Confidential Information. Without limiting the foregoing, Customer shall disclose and allow access to the Product only for the purpose of supporting and augmenting Customer’s use of the Product. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law, applicable regulatory authorities, or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.
Customer, at its expense, shall indemnify, defend and hold the Company and its officers, directors, owners, employees, and affiliates harmless from and against any and all liability, damages, injuries, losses, costs and expenses (including attorney’s fees) arising out of or relating to Customer’s use of the Product, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to Customer’s breach of any representations, warranties, or covenants in this Agreement.
IF CUSTOMER HAS PAID FEES FOR THE PRODUCT IN ACCORDANCE WITH SECTION 5 ABOVE, IN NO EVENT SHALL THE COMPANY’S LIABILITY TO CUSTOMER FOR DAMAGES RESULTING FROM ANY CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT AND/OR USE OF THE PRODUCT, WHETHER CAUSED BY FAILURE TO DELIVER, NONPERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE FEES PAYABLE TO THE COMPANY UNDER THIS AGREEMENT, AND THE COMPANY SHALL NOT BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT PROVIDED HEREUNDER OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT AND/OR THE PRODUCT, OR FOR ANY CLAIM MADE BY A THIRD PARTY REGARDLESS OF WHETHER THE LIABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.
In the event Customer has obtained the Product without fees or expense, the Customer acknowledges and agrees that THE COMPANY shall have no liability whatsoever (whether in contract, tort, negligence, strict liability in tort, or by statute or under any other theory of law) to Customer or to any third party concerning performance or non-performance by THE COMPANY, or in any manner related to this Agreement or the Product. Customer further acknowledges and agrees that the exclusion of liability provided for in this paragraph is a reasonable limitation, and granted in consideration, of the fact Customer has obtained the Product without fees or expense. The exclusion of liability in this Section represents the agreed and bargained for understanding of the parties and the absence of compensation to THE COMPANY for the Product reflects such understanding. In the event the foregoing exclusion of liability is unenforceable under any applicable law, the parties further agree that in no event shall THE COMPANY’s aggregate liability to Customer exceed $100, nor shall THE COMPANY be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible existence. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.
The parties agree to work together in good faith to resolve any dispute regarding this Agreement internally and by escalating it to higher levels of management and optional mediation, prior to resorting to binding arbitration. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Pennsylvania (USA), under the commercial arbitration rules of the American Arbitration Association (“AAA”). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction or similar equitable relief. This Agreement shall be interpreted, construed, and governed by the laws of the State of Pennsylvania, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.
Customer shall have no right to assign this Agreement or any of Customer’s rights or obligations hereunder. The Company may assign this Agreement and any of its rights hereunder to third parties. Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect.
The Company reserves the right, in its sole discretion, to modify or change this Agreement at any time by posting the changes to its website or through electronic notice to Customer. Customer’s continued use of the Product following the posting or notice of such changes constitutes acceptance of those changes. The Company will use reasonable commercial efforts to provide notice of material changes to Customer.
(a) Information You Give to Us. When you access the Site and/or the Services, we may ask you to voluntarily provide us certain information that personally identifies (or could be used to personally identify) you (“Personal Data”). Personal Data may include, without limitation, some of the following categories of information: (1) contact and profile data (such as your name, address, zip code, email address, profile picture, and phone number); (2) your billing information; (3) questions, comments, and other information you provide on our private or public internet-based community sites and user forums, and (4) other information that you voluntarily choose to provide to us, including without limitation, unique identifiers such as passwords, and personal information that you send to us. You may still access and use some of the Services if you choose not to provide us with any Personal Data, but the features of the Services that require your Personal Data will not be accessible to you. We may also collect additional information, which may be Personal Data, as otherwise described to you at the point of collection or pursuant to your consent and share this information with our business partners in order to provide the Services to you and as otherwise set forth herein.
(b) Information Gathered from Your Use of the Services. We automatically collect certain data when you use the Site and/or the Services, such as (1) IP address; (2) domain server; (3) type of device(s) used to access the Services; (4) web browser(s) used to access the Services; (5) referring webpage or other source through which you accessed the Services; (6) geolocation information; (7) beta use information; (8) session information generated and stored on your computer systems; and (9) other statistics and information associated with the interaction between your browser or device and the Services (collectively “Traffic Data”). When you use the Services, we also collect meta-data from your email accounts and your usage thereof, including, without limitation, the sender, recipient(s), date, and subject of the email (collectively, “Email Meta-Data”), provided, however, that we do not access the body of the email message or the content of any attachments in providing the Services. Depending on applicable law, some Traffic Data may be Personal Data and some Email Meta-Data may contain Personal Data.
We collect information, including Personal Data and Traffic Data, when you register on the Site, use and interact with the Services, fill out a form, use live chat, surf the Site, enter information on our Site, or provide us with feedback on our Services, as well as through Cookies, Web Beacons, website analytics services and other tracking technology (collectively, “Tracking Tools”) as described below. We collect Email Meta-Data when you use the Services. We also may collect information about you from third party sources.
(b) Web Beacons: “Web Beacons” (a.k.a. clear GIFs or pixel tags) are tiny graphic image files imbedded in a web page or email that may be used to collect anonymous information about your use of our Services, the websites of selected advertisers and the emails, special promotions or newsletters that we send you. The information collected by Web Beacons allows us to monitor how many people are using the Services or opening our emails, and for what purpose.
(c) Website Analytics: We may use third-party website analytics services in connection with the Services, including, for example, to record mouse clicks, mouse movements, scrolling activity and text that you type into the Site. These website analytics services generally do not collect Personal Data unless you voluntarily provide it and generally do not track your browsing habits across websites which do not use their services. We use the information collected from these services to help make the Services easier to use and as otherwise set forth herein.
The Services are not intended for use by children under sixteen (16) years of age and children under age 16 are prohibited from using the Services. We do not knowingly collect any information from children under 16. By accessing, using and/or submitting information to or through the Services, you represent that you are at least 16 years of age. If a parent or guardian becomes aware that his or her child has provided us with information without their consent, please contact us immediately. If we learn that we have received or inadvertently gathered any information from a child under age 16, we will use reasonable efforts to delete that information from our records as soon as reasonably practicable.
We may disclose and/or transfer certain information that we collect from you (which may include Personal Data, Traffic Data, and/or Email Meta-Data) as follows:
(c) Compliance with Law. We may disclose such information if we determine in good faith that such disclosure is needed to: (1) comply with applicable law, regulation, court order or other legal process; (2) protect our rights, property or safety or that of another party; (3) enforce other agreements with you; or (4) protect, investigate and deter against fraudulent, harmful, unauthorized, unethical or illegal activity.
Any information that you post in chat rooms or message boards on the Site or reveal in a review of the Services to us or on the Site or on any other website is public information and may be shared or used by us for any reason in our sole discretion.
If you are a registered user of the Services, you may modify certain portions of your Personal Data directly within your account settings where possible, or by contacting us to make the required changes. If you close your account or the agreement by which you purchase the Services expires or otherwise terminates, we will delete your account and all Email Meta-Data in your account without undue delay and will purge your profile data from our user database. Please note, however, that we reserve the right to retain information from closed accounts, including to comply with law, prevent fraud, resolve disputes, enforce any agreement between you and us, and take other actions permitted by law. You must promptly notify us if you become aware that any of your account data is lost, stolen or used without permission.
If you do not want to receive special offers, marketing communications, advertisements, newsletters or other promotional communications (“Marketing Communications“) from us, you may opt-out by clicking the “Unsubscribe” link at the bottom of all marketing emails. Please note that once we receive your request, it may take up to ten (10) business days for such opt-out to become effective. Also note that if you opt-out of our Marketing Communications, we may still email or communicate with you from time to time if we need to provide you with information or request information from you with respect to a transaction initiated by you, or for other legitimate non-marketing reasons. The Services will provide automatic Email Meter™ analysis reporting emails which are fundamental to delivery of the Services. This may be discontinued solely through discontinuation of your use of the Services.
Subject to certain limitations under California Civil Code § 1798.83, California residents may ask us to provide them with (i) a list of certain categories of personal information that we may have disclosed to third parties for their direct marketing purposes during the immediately preceding calendar year, and (ii) the identity of those third parties. To make this request, California residents may contact us as provided below (see Contact Us).
Legal basis for processing. We only use your personal data as permitted by law. We are required to inform you of the legal basis of our processing of your personal data, which are described in the “Use of Data” section above. If you have questions about the legal basis of how we process your Personal Data, contact us using the contact information provided above.
Retention. We will only retain your Personal Data for as long as necessary to fulfil the purposes we collected it for, including for the purposes of satisfying any legal, accounting, or reporting requirements. To determine the appropriate retention period for Personal Data, we consider the amount, nature, and sensitivity of the Personal Data, the potential risk of harm from unauthorized use or disclosure of your Personal Data, the purposes for which we process your personal data and whether we can achieve those purposes through other means, and the applicable legal requirements. We keep basic information about our users for the duration of the agreement. In some circumstances we may anonymize your Personal Data (so that it can no longer be associated with you) in which case we may use this information indefinitely without further notice to you.
Your Rights. European data protection laws give you certain rights regarding your Personal Data. You may ask us to take the following actions in relation to your Personal Data that we hold:
* Opt-out. Stop sending you direct marketing communications. You may continue to receive service-related and other non-marketing emails.
* Access. Provide you with information about our processing of your Personal Data and give you access to your Personal Data.
* Correct. Update or correct inaccuracies in your Personal Data.
* Delete. Delete your Personal Data.
* Transfer. Transfer a machine-readable copy of your Personal Data to you or a third party of your choice.
* Restrict. Restrict the processing of your Personal Data.
* Object. Object to our reliance on our legitimate interests as the basis of our processing of your Personal Data that impacts your rights.
You can submit these requests by email to firstname.lastname@example.org or our postal address provided above. We may request specific information from you to help us confirm your identity and process your request. Applicable law may require or permit us to decline your request. If we decline your request, we will tell you why, subject to legal restrictions. If you would like to submit a complaint about our use of your Personal Data or response to your requests regarding your Personal Data, you may contact us as described above or submit a complaint to the data protection regulator in your jurisdiction. You can find your data protection regulator here: http://ec.europa.eu/justice/article-29/structure/data-protection-authorities/index_en.htm.
We engage certain third parties (“Subprocessors”) in order to assist us in connection with the Services, some of whom may have access to your Personal Data in conjunction with such processing. Please contact us for a list of our current Subprocessors.
Whenever we transfer your Personal Data out of the EEA to countries not deemed by the European Commission to provide an adequate level of personal information protection, the transfer, where required by EU data protection legislation, will be based on the Standard Contractual Clauses approved by the European Commission which impose data protection obligations on the parties to the transfer.
Please contact us for a copy of our Data Processing Addendum or if you want further information on the specific mechanism used by us when transferring your personal information out of the EEA.