The following terms of service (“Terms of Service,” and together with the applicable Service Order (defined below) and each of the other documents referenced herein, collectively, the “Agreement”) govern the terms and conditions of the Services (defined below) to be provided by Email on Acid, LLC, a Delaware limited liability company (“Email on Acid”) to the customer (“Customer”) ordering the Services identified in the applicable Service Order. These Terms of Service are required for all users whether purchasing a paid subscription or otherwise performing a free trial of any Services. The Agreement shall extend to any individual or organization who may gain access to the Services without explicitly agreeing to these Terms of Service.
PLEASE CAREFULLY READ THESE TERMS OF SERVICE. BY SUBSCRIBING TO THE SERVICES, CUSTOMER AGREES THAT CUSTOMER HAS READ AND AGREES, WITHOUT RESERVATIONS, TO BE BOUND BY THE LATEST VERSION OF THESE TERMS OF SERVICE.
The Services are exclusively reserved for the Permitted Uses (defined below) and are not available to minors under the age of 18.
- Defined Terms. The following words, when capitalized, have the meaning stated below or as otherwise defined herein:
(a) “Affiliate” means any entity that is owned or that owns a party, or that is under its common control.
(b) “Confidential Information” means non-public information disclosed by one party to the other party in any form that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes such party’s products, customers, marketing and promotions, know-how, trade secrets, financial information, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the disclosing party’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure.
(c) “Customer Data” means all data which Customer provides, stores, and/or transmits in connection with the Services.
(d) “Intellectual Property” means patents, copyrights, trademarks, trade secrets, software and source code, specifications and ancillary documentation and any other proprietary intellectual property rights.
(e) “Personal Data” means any: (i) personally identifiable information or information that is referred to as personal data (including sensitive personal data), PII (or other like term) under applicable data protection or privacy law and includes information that by itself or combined with other information can be used to identify a person, or (ii) other sensitive, regulated, or confidential information that can be used to identify a person.
(f) “Representatives” means a party’s service providers, officers, directors, employees, contractors, Affiliates, suppliers, and agents.
(g) “Service Order” means the document which describes the Services that Customer is purchasing, including any online order, process, or tool through which Customer requests or provisions Services.
(h) “Services” means the services identified in the applicable Service Order.
(a) General. Email on Acid will provide the Services identified in the applicable Service Order in accordance with the Agreement. Email on Acid will provide support only to those individuals designated in the Customer’s account and is not required to provide any support to Customer’s end users.
(b) General Disclaimers and Reserved Rights. Email on Acid makes no commitment to provide any services other than the Services stated in the Service Order. Email on Acid reserves the right to elect at a later date to replace the Services with an alternative or discontinue providing a platform deemed undesirable and/or obsolete and migrate the Services to a new infrastructure, and in any such case, Email on Acid will inform Customer as soon as practically possible. Upon such event, the license for the replaced Services immediately terminates for any Services which no longer exist, and the rights granted herein will automatically apply to the replacement Services. Email on Acid is not responsible to Customer or any third party for unauthorized access or use of the Services (including any of Customer’s Personal Data or Customer Data provided to Email on Acid in connection with the Services) that is not solely caused by Email on Acid’s failure to meet any of its obligations in Section 10 (Privacy and Security).
- Permitted Uses and Prohibited Uses
(a) Permitted Uses. For purposes of the Agreement, a “Permitted Use” means Customer can use the Services for the features Customer purchased or signed up for, as more particularly described in the documentation provided or available in connection with such feature, which may include email content checks, email deliverability and/or email previews. Customer’s use may include any of the following:
- Customer’s own portfolio purpose – which means Customer may show Customer’s own portfolio to Customer’s potential clients that Customer is qualified to create HTML/CSS emails that are compliant with the most popular email readers.
- Customer’s internal approval purposes – which means Customer may forward an email preview to Customer’s internal customers or stakeholders for the sole purpose of gaining a sign-off or approval to publish the email campaign, provided that such parties shall have no further or additional rights to use the Service or extract it from any file Customer provides.
- Customer’s email artwork use – which means Customer may present Customer’s actual email artwork for any purposes as long as such artwork does not contain any email preview results received in connection with the Services.
- Any other uses approved in writing in advance by Email on Acid.
(b) Prohibited Uses. For purposes of the Agreement, the following will be considered “Prohibited Uses” and Customer may not at any time:
- Use the Services in connection with a product or service for resale, license or other distribution or commercial exploitation, whether online or not, with or without the Email on Acid branding. For example, Customer cannot create a website that claims to run email tests of any kind, in any email client and use Email on Acid’s products and services to make a profit.
- Use the Services as part of a trademark, design-mark, trademarks, business name, service mark, or logo.
- Take screenshots of any email previews provided in connection with the Services, crop out any of Email on Acid’s logos and submit the results to Customer’s clients for resale, license or other distribution or commercial exploitation.
- Remove any notice of copyright, trademark or other proprietary right from any place where it is on or embedded in the Services.
- Use any email preview results for editorial purposes without including the following credit adjacent to it: “©Email on Acid/Email Artist’s Name,” or the email client, as the case may be, or such other attribution statements required by Email on Acid.
(c) Other limitations. Customer may only use the Services for the number of users permitted for the Services to the extent: (i) such users are registered on the account; (ii) the account is active; and (iii) Customer is in compliance with the Agreement, including payment of all applicable license and other fees for all intended users.
- Customer Obligations
(a) General. Customer may use the Services for the Permitted Uses only, and any activity or use that is not a Permitted Use will be deemed a Prohibited Use.
(b) Cooperation. Customer must cooperate with Email on Acid’s investigation of outages, security problems, and any suspected breach of the Agreement. Customer is responsible for keeping Customer’s account permissions, billing, and other account information up to date. Customer agrees that Customer’s use of the Services will comply with the Agreement, including these Terms of Service, and with the Acceptable Use Policy (the “AUP”) at https://www.emailonacid.com/acceptable-use-policy/. Customer agrees that Customer is solely responsible for the suitability of the Services and Customer’s compliance with any applicable laws, including export laws and data privacy laws. Customer also agrees to ensure that Customer’s own users will fully comply with the Agreement.
(c) Documentation. Customer agrees to comply with the Email on Acid documentation found on its website or otherwise made available to Customer for the Services, and agrees that Email on Acid may establish new procedures for Customer’s use of the Services as it deems reasonably necessary for the optimal performance of the Services, including compliance with new laws, regulations and best industry practices.
(d) Data Backup. It is Customer’s responsibility to ensure the integrity and security of all of Customer’s Personal Data and Customer Data and to regularly backup and validate the integrity of backups of Customer’s Personal Data and Customer Data on an environment separate from the platform on which the Services are provided.
(e) Suspension of Services. Email on Acid may suspend the Services without liability if: (i) Email on Acid reasonably believes that the Services are being used in violation of the Agreement or Customer is not in compliance with Customer’s obligations under the Agreement; (ii) Customer doesn’t cooperate with Email on Acid’s investigation of any suspected violation of the Agreement; (iii) there is an attack on the Services, or Customer’s account is accessed or manipulated by a third party without Customer’s consent; (iv) Email on Acid is required by law or by a regulatory or government body to suspend the Services; or (v) there is another event for which Email on Acid reasonably believes that the suspension of the Services is necessary to protect the Email on Acid network or Email on Acid’s other customers.
- Intellectual Property
(a) Pre-Existing. Each party shall retain exclusive ownership of Intellectual Property created, authored, or invented by such party. If Customer provides Email on Acid with Customer’s pre-existing Intellectual Property (“Customer IP”), then Customer hereby grants to Email on Acid, during the term of the applicable Service Order, a limited, non-exclusive, worldwide, non-transferable, royalty-free, right and license (with right of sub-license where required to perform the Services) to use the Customer IP solely for the purpose of providing the Services. Customer represents and warrants that Customer has all rights in the Customer IP necessary to grant this license, and that Email on Acid’s use of such Customer IP shall not infringe on the Intellectual Property rights of any third party.
(b) Created by Email on Acid. Unless otherwise specifically stated in the applicable Service Order, and excluding any Customer IP, Email on Acid shall own all Intellectual Property created as part of providing the Services. Unless otherwise specifically stated in the Agreement, and subject to Customer’s payment in full for the applicable Services, Email on Acid grants to Customer a limited, non-exclusive, non-transferable, royalty-free right and license (without the right to sublicense) to use the Services, and during the term of the Service Order any Intellectual Property (excluding any Third Party Software (defined below) and any Open Source Software (defined below)), provided to Customer by Email on Acid as part of the Services for Customer’s internal use as necessary for Customer to enjoy the benefit of the Services.
(c) Open Source Software. In the event Email on Acid distributes any open source software to Customer as part of the Services (for example Linux, OpenStack, and software licensed under the Apache, GPL, MIT or other open source licenses, collectively “Open Source Software”), then such Open Source Software is subject to the terms of the applicable open source license. To the extent there is a conflict with these Terms of Service, the terms of the applicable open source license shall control.
(d) Third Party Software. Email on Acid may provide third party software for Customer’s use as part of the Services or to assist in Email on Acid’s delivery of the Services (“Third Party Software”). Unless otherwise permitted by the terms of the applicable license, Customer may not: (i) assign, grant or transfer any interest in the Third Party Software to another individual or entity; (ii) reverse engineer, decompile, copy or modify the Third Party Software; (iii) modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third Party Software; or (iv) exercise any of the reserved Intellectual Property rights provided under the laws governing the Third Party Software agreement. Customer is prohibited from using Third Party Software which Email on Acid may install in order to assist Email on Acid’s delivery of the Services in any way prohibited by the Agreement or applicable Third Party Software license requirements. Upon termination of the Service Order, Customer will permit removal of the Third Party Software. Email on Acid makes no representation or warranty regarding Third Party Software except that Email on Acid has the right to use or provide the Third Party Software in connection with Email on Acid’s delivery of Services.
(e) Infringement. If the delivery of the Services infringes the intellectual property rights of a third party and Email on Acid determines that it is not reasonably or commercially practicable to obtain the right to use the infringing element, or modify the Services such that they do not infringe, then Email on Acid may terminate the Service Order on ninety (90) days’ notice and will not have any liability on account of such termination except to refund amounts paid for unused Services (prorated as to portions of the Services deemed infringing).
- Fees, Taxes and Other Charges
- Customer agrees to timely pay the fees for the Services at the rates and charges set forth in Customer’s account (for self-serve customers) or the applicable Service Order (for custom contract customers). If Customer has arranged for payment by credit card, Email on Acid may charge Customer’s card or account on or after the invoice date. If Customer’s undisputed payment is overdue for more than thirty (30) days, Email on Acid may suspend the Services and any other services Customer receives from Email on Acid. Invoices that are not disputed within one hundred and twenty (120) days of the invoice date are conclusively deemed accurate. Fees must be paid in the currency identified in Customer’s account or Service Order, as applicable. Customer is solely responsible for all wire transfer and other bank fees associated with the delivery of payments to Email on Acid. Email on Acid may charge interest on overdue amounts at the greater of 1.5% per month or the maximum legal rate, and may charge Customer for any cost or expense arising out of Email on Acid’s collection efforts.
- Customer may be able to upgrade or downgrade Customer’s plan through Customer’s online account on Email on Acid’s website at any time; provided, however, that upgrades to Customer’s plan will take effect immediately, while downgrades will take effect at the end of the then-current term.
- All Services are subscription based and may include an optional free trial. Unless otherwise stated, the free trial is for one week (7 days). When the trial ends, Customer will be billed based on the subscription and term that Customer selected. Email on Acid considers a “month term” to be thirty (30) days and a “year term” to be three hundred sixty (360) days.
- Unless otherwise agreed by Customer and Email on Acid, in order to set up an account, Customer must provide accurate and complete billing information including legal name, address, and a valid credit card. By submitting such credit card information, Customer gives Email on Acid permission to charge all fees incurred through Customer’s account to the designated credit card on or after the invoice date. Email on Acid reserves the right to impose additional fees or surcharges, as described on the website, and to terminate the Agreement if Customer does not provide a valid credit card for the payment of fees.
(b) Fee Increases. Email on Acid reserves the right to increase rates or charges for the Services at any time by providing Customer with written notice. For self-service customers (customers who are not a party to a then-effective Service Order and sign up for the Services directly through Email on Acid’s website), such rate changes will be effective immediately upon the posting of an update to Customer’s account. For custom contract customers (customers who are party to a then-effective Service Order), such rate changes will be effective upon the commencement of the next renewal term of the applicable Service Order (and the Service Order will be deemed amended to reflect such increased rates and charges at such time). In addition, if at any time during the term of the Agreement a third party licensor or service provider directly or indirectly increases the fee they charge Email on Acid for Customer’s use of Third Party Software or services, Email on Acid may increase Customer’s fees by the same percentage amount on thirty (30) days’ advance written notice.
(c) Taxes. All amounts due to Email on Acid under the Agreement are exclusive of any value added, goods and services, sales, use, and like taxes (collectively, “Tax”). Customer must pay Email on Acid the Tax that is due or provide Email on Acid with satisfactory evidence of Customer’s exemption from the Tax in advance of invoicing. Customer must provide Email on Acid with accurate and adequate documentation sufficient to permit Email on Acid to determine if any Tax is due. All payments to Email on Acid shall be made without any withholding or deduction for any taxes except for withholding (or similar) taxes imposed on income that may be attributable to Email on Acid in connection with its provision of the Services that Customer is legally required to withhold and remit to the applicable governmental or taxing authority (“Local Withholding Taxes”). Customer agrees to timely provide Email on Acid with accurate factual information and documentation of Customer’s payment of any such Local Withholding Taxes. Email on Acid shall remit such cost to Customer in the form of a credit on Customer’s outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes.
- Term and Termination
(a) Term. The Agreement is effective from the date set forth in Customer’s account or the Service Order, as applicable, until it is terminated pursuant to the Agreement. The term will automatically renew upon the expiration of the applicable term unless either party provides the other with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term.
- Termination for convenience.
(i) Customer may terminate a monthly subscription at any time by logging into Customer’s account online and canceling Customer’s subscription; provided, however, that the termination will be effective upon the expiration of the applicable monthly term, and no refund will be provided for any such canceled or terminated subscription.
(ii) Customer may terminate an annual subscription at any time by logging into Customer’s account and canceling Customer’s subscription; provided, however, that if Customer terminates at any time after the first thirty (30) days of signing up for a subscription, no refund will be provided, and if Customer terminates within the first (30) days, the termination will be effective at the end of the first thirty (30) days and Email on Acid will provide Customer a refund for the prepaid portion of the Services for the remaining eleven (11) months of the term.
- Termination for cause. Either party may terminate the Agreement and the applicable Service Order(s) for cause on written notice provided by the non-breaching party if the other party materially breaches the Agreement, and the breaching party fails to cure such breach within thirty (30) days after receipt of written notice thereof from the non-breaching party specifying such material breach. In addition, in the event Email on Acid suspends the Services for non-payment and Customer’s payment of any invoiced undisputed amount remains overdue for an additional ten (10) days, Email on Acid may terminate the Agreement or the applicable Service Order(s) for breach on written notice.
- Termination for insolvency. Either party may terminate the Agreement and the applicable Service Order(s) on written notice if the other party enters into compulsory or voluntary liquidation, or ceases for any reason to carry on business, or takes or suffers any similar action which the other party reasonably believes means that it may be unable to pay its debts. Notwithstanding anything to the contrary in the Agreement, the fees for the Services shall become due immediately on such an occurrence.
(c) Effect of Termination. After any such termination, Customer must immediately: (i) cease using the Services for any purpose; (ii) destroy all copies of the Services, along with any copies or archives (excluding operational backups) thereof or accompanying materials or materials containing the same (if applicable); and (iii) if requested, certify in writing to Email on Acid that Customer has complied with these requirements.
- Termination for convenience.
- Limitation of Warranties and Liability
- Email on Acid warrants to Customer that at the time of delivery of the Services no additional authorizations are required from any third party in order for Customer to access and utilize the Services so long as such access and use is pursuant to the Agreement. Email on Acid will use commercially reasonable efforts to remedy any non-conformity with respect to the warranty immediately set forth above provided Customer promptly notifies Email on Acid of any non-conformity (no later than thirty (30) days after the Services are provided to Customer). In the event Email on Acid is unable to remedy the non-conformity within a commercially reasonable period of time, and such non-conformity materially and adversely affects the functionality of the Services, Customer may terminate the applicable Service Order, pursuant to Section 7.b.2 above and receive a refund of any prepaid and unused portion of the Services (prorated as to the portion of the Services that cannot be remedied) as Customer’s role and exclusive remedy and Email on Acid’s entire liability with regard to any breach of Section 8.a.1.
- Customer warrants to Email on Acid that Customer has the right to disclose and share any information or content provided to Email on Acid in connection with the Services, and that no additional authorization is required from any third party in order for Email on Acid to use any content Customer provides to deliver the Services (including, without limitation, any approvals or consents with regard to any third party Intellectual Property or other right). Customer specifically warrants that with respect to any information provided by Customer to Email on Acid through Email on Acid’s website or via email that: (i) the information is non-confidential; (ii) Email on Acid may use, disclose, distribute or copy the information and may use any ideas, concepts or know-how contained in the information for any purpose without compensation; (iii) the information is truthful and disclosure of the information does not violate the legal rights of others; and (iv) Email on Acid has no obligation concerning such information.
(b) Disclaimers. Other than expressly provided herein, the Services provided hereunder are “AS-IS,” without representation, warranty, or condition of any kind, either expressed or implied, including, but not limited to, the visual representations provided, warranties or conditions of the code analysis, or the validity of Customer’s HTML or CSS. Email on Acid does not represent or warrant that the Services will meet Customer’s or end user’s requirements, or that its use will be uninterrupted or error free. The entire risk as to the quality and performance of the Services is with Customer and Customer understands that due to technical difficulties with the internet beyond Email on Acid’s control, internet software or transmission problems could produce inaccurate or incomplete copies of information contained on the Email on Acid website. Email on Acid is not liable for any damages related to communications to or from the Email on Acid website. Should the Services prove defective, Customer (and not Email on Acid) will assume the entire risk and cost of all necessary corrections. Email on Acid and its Representatives disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law, including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose and non-infringement. Email on Acid expressly reserves the right, at any time during the term of the Agreement, to adapt, arrange and/or modify any of the components granting access and use rights to the Services and the associated documentation, provided that the maintenance and support commitments are complied with for these operations. Email on Acid grants no rights and makes no warranties or representations regarding the use of names, people, trademarks, trade names, patented or copyrighted designs, works of art, architecture, or other forms of Intellectual Property represented in any content provided to or from Customer in connection with the Services. While Email on Acid has made reasonable efforts to properly simulate the correct results for each email client, Email on Acid does not warrant or represent the accuracy of such information.
- Direct Damages. Notwithstanding anything in the Agreement to the contrary, except for liability arising from death or personal injury caused by gross negligence, willful misconduct, fraudulent misrepresentation or any other loss or damages for which such limitation is expressly prohibited by applicable law, the maximum aggregate monetary liability of Email on Acid and any of its Representatives in connection with the Services or the Agreement under any theory of law shall not exceed the total amount paid for the Services that are the subject of the claim in the twelve (12) months immediately preceding the event(s) that gave rise to the claim.
- Indirect Damages. In no event shall Email on Acid and its Representatives be liable to Customer for any indirect, special, incidental, exemplary or consequential loss or damages of any kind. In no event shall Email on Acid and its Representatives be liable to Customer for any punitive damages or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill or reputation.
If Email on Acid, its Representatives or any of its or their respective directors, officers, employees, shareholders, partners and agents (the “Indemnitees”) is faced with a legal claim by a third party arising out of Customer’s actual or alleged: willful misconduct, breach of applicable law, failure to meet the security obligations required by the Agreement, breach of Customer’s agreement with Customer’s customers or end users, violation of the AUP, Customer’s breach of Section 5 (Intellectual Property) or other material obligation hereunder, then Customer will pay the cost of defending the claim (including reasonable legal fees) and any damages, award, fine or other penalty that is imposed on the Indemnitees as a result of the claim. Customer’s obligations under this Section include claims arising out of the acts or omissions of Customer’s employees or agents, any other person to whom Customer have given access to the Services or the platform on which the Services are provided, and any person who gains access to the Services or the platform on which the Services are provided as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by Customer. Email on Acid will choose legal counsel to defend the claim, provided that the choice is communicated to Customer. Customer must comply with Email on Acid’s reasonable requests for assistance and cooperation in the defense of the claim. Email on Acid may not settle the claim without Customer’s consent, which may not be unreasonably withheld, delayed or conditioned. Customer must pay costs and expenses due under this Section as Email on Acid incurs them.
- Privacy and Security
Email on Acid will inform Customer of any breaches of security or unauthorized access that materially and adversely impacts any of Customer’s personal information within Email on Acid’s reasonable control in accordance with applicable Data Protection Laws and will take reasonable steps to remedy the breach or violation arising from Email on Acid’s acts or omissions. Email on Acid will support Customer’s efforts in determining what personal information may have been compromised.
Customer acknowledges and understands that the Services may include the transmission of unencrypted content over the public internet. Customer is responsible for encrypting all Customer’s Personal Data and Customer Data that Customer uses in conjunction with the Services and for using current anti-virus software and taking other reasonable measures to prevent viruses or other malicious content from being transmitted to Email on Acid, and immediately notify Email on Acid upon becoming aware of a virus, malicious content or other malware in any files sent to Email on Acid.
Content including any data sent in connection with the Services may be unsecured, may be intercepted by other users of the public internet, and may be stored and disclosed by third parties (such as a recipient’s email service provider). Customer must use reasonable security precautions in connection with Customer’s use of the Services, including appropriately securing and encrypting any Personal Data or Customer Data stored on or transmitted on Email on Acid’s platform from which the Services are provided. Personal Data and Customer Data are, and at all times shall remain, Customer’s exclusive property. Email on Acid will not use or disclose Personal Data or Customer Data except as materially required to perform the Services or as required by law.
Each party agrees not to use the other party’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under the Agreement, or as required by law, and will use reasonable care to protect Confidential Information from unauthorized disclosure. Each party agrees not to disclose the other party’s Confidential Information to any third party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in the Agreement; (ii) as required by law; or (iii) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven (7) days prior to disclosing Confidential Information unless the law forbids such notice.
- Accuracy of Test Results provided by Website
Email on Acid updates the information on Email on Acid’s website regularly. However, Email on Acid cannot guarantee or accept any responsibility or liability for the accuracy, currency, or completeness of the information on its website. Email on Acid may revise, supplement, delete information, services and/or the resources contained on its website, and reserves the right to make such changes without prior notification to past, current, or prospective visitors.
- Linked Websites
The website through which Customer accesses the Services may provide links to third party websites for Customer’s convenience only. The inclusion of these links does not imply that Email on Acid monitors or endorses these websites. Email on Acid does not accept any responsibility for such websites. Email on Acid shall not be responsible or liable, directly or indirectly, or any damage or loss caused or alleged to be caused by, or in connection with, the use of or the reliance upon any information, content, goods, or services available on or through any third-party websites or linked resources.
- Publicity and Use of Marks
Unless otherwise agreed in the Service Order, Customer agrees that Email on Acid may publicly disclose that it is providing the Services to Customer and may use Customer’s name, trademarks and logos (“Marks”) to identify Customer in promotional materials, including press releases and Email on Acid’s website. Customer may not issue any press release or publicity regarding the Agreement, use the Email on Acid name or logo or other identifying indicia, or publicly disclose that it is using the Services without Email on Acid’s prior written consent. In addition, Email on Acid may use the Marks in connection with provision of the Services solely to the extent that the Customer has uploaded or requested the incorporation of such Marks into the form of communication to be delivered via the Services, and has initiated the distribution of the same. Except as set forth herein, neither party may use the Marks of the other party without such party’s prior written consent.
- Force Majeure
Neither party will be deemed in violation of the Agreement if the failure to perform a duty or obligation hereunder is due to an extraordinary event beyond such party’s reasonable control, such as significant failure of a part of the power grid, Internet failure, natural disaster, war, riot, epidemic, pandemic, strikes or labor action, terrorism (“Force Majeure”). If a Force Majeure event occurs, the Agreement shall be automatically suspended during the time the Force Majeure event continues, and neither party shall be liable to the other for non-performance or delay in the performance of required obligation(s) due to the Force Majeure event, provided the non-performing party gives prompt written notice of its inability to perform specified obligation(s) due to the event and uses reasonable efforts to resume its performance of its obligation(s) as soon as possible. Notwithstanding the foregoing, in no event shall a Force Majeure event excuse or delay a party’s obligation(s) with respect to confidentiality or Intellectual Property rights or the payment of money to the other party.
Customer’s routine communications to Email on Acid regarding the Services should be sent to Customer’s account or support team as applicable. To give a notice regarding termination of the Agreement or other legal notices permitted or required hereunder, Customer must send it by electronic mail and first-class post to: Email on Acid, LLC, 112 E Pecan Street # 1135, San Antonio, Texas 78205 Attention: Legal Department, with an email copy to Legal@mailgun.com.
Email on Acid’s routine communications regarding the Services and legal notices will be posted on Customer’s account or sent by email or post to the individual(s) Customer designates as Customer’s contact(s) on Customer’s account. Notices are deemed received as of the time posted or delivered, or if that time does not fall on a business day, as of the beginning of the first business day following the time posted or delivered. For purposes of counting days for notice periods, the business day on which the notice is deemed received counts as the first day.
- Governing Law and Dispute Resolution
(a) The Agreement is governed by the laws of the State of Texas, USA, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America including the Federal Arbitration Act, 9 U.S.C. §1, et seq.
(b) Any dispute or claim relating to or arising out of the Agreement shall be submitted to binding arbitration. The arbitration shall be conducted in San Antonio, Texas in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) in effect at the time the dispute or claim arose. The arbitration shall be conducted in the English language by one arbitrator from AAA or a comparable arbitration service approved by Email on Acid. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law. Either party may bring an action in any court of competent jurisdiction to compel arbitration under the Agreement, or to enforce an arbitration award. Neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. Either party shall be permitted to appeal the final award under the AAA’s Optional Appellate Arbitration Rules in effect at the time the dispute or claim arose. Grounds for vacating the award shall include, in addition to those enumerated under the Federal Arbitration Act, that the arbitrator committed errors of law that are material and prejudicial. The appeal shall be determined upon the written documents submitted by the parties, with no oral argument. After the appellate rights described herein have been exercised or waived, the parties shall have no further right to challenge the award.
(c) Notwithstanding the exclusive jurisdiction provision above, Customer agrees that Email on Acid may seek to enforce any judgment anywhere in the world where Customer may have assets. No claim may be brought as a class or collective action, nor may Customer assert such a claim as a member of a class or collective action that is brought by another claimant.
(d) The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
(e) The prevailing party in any action or proceeding relating to the Agreement shall be entitled to recover reasonable legal fees and costs, including attorney’s fees.
- General Provisions
(a) Customer specifically agrees and acknowledges that Customer has reviewed these Terms of Service, and Customer agrees to be bound by them.
(b) Either party’s failure to insist upon, or enforce, strict performance of any provision of the Agreement shall not be construed as a waiver of any provision or right.
(c) The Agreement is personal to the Customer and Email on Acid and is not assignable by Customer without Email on Acid’s prior written consent; provided, however, that Customer may, without prior written consent but with prompt written notice to Email on Acid, may assign the Agreement to an Affiliate or successor as part of a corporate reorganization or a sale of some or all of its business; provided, further, the assignee or successor is not a competitor of Email on Acid and its Affiliates.
(d) Some terms are incorporated into the Agreement by reference to pages on the Email on Acid website and Email on Acid may revise those terms from time to time (including these Terms of Service). Such revisions will be effective and supersede and form part of the Agreement as of the time: (i) Customer enters into a new Service Order referencing the terms subject to the revisions; or (ii) a Service Order automatically renews pursuant to the Agreement in which case Customer acknowledges that Customer has reviewed and accepted the then-current version of the terms as of the date of the renewal. If there is a conflict between the terms of the Agreement, the documents will govern in the following order: the Service Order, then these Terms of Service. The headings or captions in the Agreement are for convenience only. If over time Customer enters into multiple Agreements for the Services, then the most recent terms referenced in the applicable Service Order(s) will govern the entirety of the Services unless otherwise expressly stated in the applicable Service Order(s).
(e) A Service Order may be amended to modify, add, or remove Services by a formal written agreement signed by both parties, or by an exchange of correspondence (including via any Email on Acid ticketing system) that includes the express consent of an authorized individual for each party. The pre-printed terms of Customer’s purchase order or other business form or terms that Customer provides shall be void and of no effect.
(f) If any part of the Agreement is found unenforceable, the rest of the Agreement will continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past.
(g) The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party.
(h) The following provisions in these Terms of Service shall survive expiration or termination of the Agreement: Intellectual Property, Confidential Information, Indemnification, Limitation of Warranties and Liability, Notices, Governing Law and Dispute Resolution, General Provisions, all terms of the Agreement requiring Customer to pay any fees for the Services provided prior to the time of expiration or termination, and any other provisions that by their nature are intended to survive expiration or termination of the Agreement.
- Acknowledgement; Entire Agreement
In consideration of Email on Acid agreeing to provide the Services and Customer’s payment to Email on Acid for such access to the Services, each party agrees to be bound by the terms and conditions of the Agreement. The Agreement constitutes the complete and exclusive understanding between the Parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), proposal(s), agreement(s), communication(s) or understanding(s), written or oral.
- Defined Terms. The following words, when capitalized, have the meaning stated below or as otherwise defined herein: