ProMail Terms of Service
YOU AGREE THAT BY REGISTERING FOR, ACCESSING OR USING THE SERVICES, YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH VIIVE CLOUD. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCESS OR USE THE SERVICES.
Wherever used in these Terms, “you”, “your” or similar terms means the person or legal entity accessing or using the Services. If you are accessing or using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms.
Viive Cloud reserves the right to modify, supplement or replace these Terms, effective upon posting an amended version on the Site or notifying you otherwise. Your continued use of the Services following the posting of changes to these Terms or receipt of notice will mean that you accept and agree to such changes. You are responsible for regularly consulting the current version of the Terms prior to your use of the Services.
1. THE SERVICES
1.1 Eligibility. In order to access and use the Services, you must:
(a) be at least the age of majority in your jurisdiction;
(b) complete the registration process to create a user account; and
(c) provide and maintain complete, accurate and up-to-date contact and account information.
1.2 Account and password. You are responsible for all activity that occurs through your account, whether or not that activity is authorized by you. You agree to take reasonable precautions to ensure that your username, password and other account information are kept confidential, to not share such information, and to immediately notify us of any unauthorized use of your account.
1.3 Updates and Functionalities. You acknowledge and agree that Viive Cloud may from time to time apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of the Services (including the addition, modification, or removal of functionality, features, or content).
1.4 Third Party Products and Services. The Services may enable you to access, interact with or purchase products or services provided by third parties, including from third party websites or applications linked to or accessible through the Services (“Third-Party Services”). Viive Cloud provides access to Third Party Services as a convenience only, and such access does not imply any warranties, representations, endorsements, approvals or verification by Viive Cloud of such Third Party Services. You acknowledge that the use of Third Party Services may be subject to the terms and conditions of such Third Party Services, and that any contract entered into or transaction completed through Third Party Services is between only you and the relevant third party.
1.5 Anti-Spam Measures. Viive Cloud reserve the right to take any and all measures it deems necessary or appropriate in its sole discretion (whether legal, technical or otherwise) to prevent the Services from being used to send unsolicited email (i.e. “spam”) and to address complaints by third parties regarding the sending of such email. Without limitation, you agree that Viive Cloud may in its sole discretion suspend or cancel your account if it suspects that your account is being used to send unsolicited email.
2. RULES OF USE
2.1 Permitted Uses. You agree that you will at all times use the Services in a manner consistent with: i) these Terms; ii) the Acceptable Use Policy [link]; and iii) any other applicable rules, policies and guidelines established by Viive Cloud in respect of the Services. Misuse or unauthorized use of the Services and its related systems or networks, or of any information or material available through the Services is strictly prohibited and Viive Cloud reserves the right, at its sole discretion and without liability or prejudice to any other remedies that it may have, to immediately suspend or cancel the account of any user who is using, or who Viive Cloud reasonably believes is using, the Services in violation of these Terms.
2.2 Compliance with Laws. You represent and warrant that your use of the Services will comply with all applicable laws and regulations, including without limitation, all applicable anti-spam and privacy laws (collectively, the “Regulations”). For greater certainty, the Regulations may include depending upon your use of the Services, but will not necessarily be limited to, CAN-SPAM [link] and CASL [link]. You will be solely responsible for determining whether the Services as used by you comply with the Regulations, and you acknowledge and agree that Viive Cloud will not be liable for any use of the Services by you that violates the Regulations.
2.3 Consents. Without limiting Section 2.2, you further represent and warrant that you will not send any emails other than Transactional Messages (as defined in Section 2.4) unless the email recipients have provided you with valid consent under the Regulations to receive communications from you. (For more information on obtaining consent to send email, please visit Viive Cloud’s support page: [link to support page about consent under CASL])
2.4 Transactional Messages. The Services may allow you to send Transactional Messages. “Transactional Messages” are defined as communications that are sent in response to an action by an email recipient related to a product or service offered by you (e.g. a confirmation email sent in response to a purchase of a product or service through your App or website) or that concern the ongoing use, purchase or subscription by an email recipient of a product or service offered by you. You must not send Transactional Messages that are bulk messages or messages that have a purpose of encouraging the participation in a commercial activity.
3. INTELLECTUAL PROPERTY
3.1 Viive Cloud Services. Viive Cloud is the owner of the Services and all intellectual property rights related to the Services. All rights, title, and interest in and to the Services not expressly granted under these Terms are reserved by Viive Cloud. Without limiting the generality of the foregoing, Viive Cloud owns the trademarks and design marks, trade dress, domain names, service names, logos and associated designs (“Trademarks”) used in connection with the Services and any unauthorized use of the Trademarks is strictly prohibited.
3.2 Feedback. If you submit any suggestions, comments or other feedback (“Feedback“) to Viive Cloud regarding the Services, you agree that Viive Cloud shall have a worldwide, perpetual, irrevocable, unrestricted, unlimited and fully paid-up right and license to use, copy, modify, publish, disclose, distribute, license, sublicense, incorporate into its products, and create derivative works of, any Feedback or any ideas or materials contained in or resulting from any Feedback, for any and all commercial and non-commercial purposes. For greater certainty, you agree that Viive Cloud may use and exploit any Feedback in any way at our discretion, without compensation or obligation to you or to any other party.
3.3 User Content. You retain ownership of all information and content (including text, images, video, audio and other material) that you upload, publish, transmit, link to or otherwise make available through the Services (“User Content”). You grant to Viive Cloud a non-exclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license, with the right to sublicense, to access, use, reproduce, modify, publish, translate, create derivative works from, distribute, disseminate, perform, transmit, display, store, index and archive User Content or to incorporate it in other works in any form, media, or technology, for the full term of any rights that may exist in such User Content, for the purpose of providing the Services. You are solely responsible for User Content that you upload, publish, transmit, link to or otherwise make available through the Services. If you are posting User Content belonging to or generated by or on behalf of a third party, you warrant that you are authorized to act on behalf of that third party and to bind them to these Terms.
4.1 Credit. You may purchase “Credit” which may be exchanged for certain email related services. Credit will remain in your account for as long as your account is active. If your account shows no activity for a period of twelve (12) months, your Credit will automatically expire and will no longer be available for use.
4.2 Billing. If you are purchasing Credit or otherwise making a payment to Viive Cloud, you must provide Viive Cloud with a valid credit card or other form of payment instrument approved by Viive Cloud. You agree that Viive Cloud has permission to retain and/or share with financial institutions and payment processing firms your submitted payment information in order to process your purchase. If you select an automatic payment option, you agree that Viive Cloud may automatically bill your credit card or other form of payment instrument approved by Viive Cloud in accordance with the terms of the applicable automatic payment option. Viive Cloud may change the fees charged for Credit from time to time, including without limitation, fees charged under an automatic payment option, by posting a new pricing structure to the Services or otherwise providing you with notice. Unless otherwise expressly stated, all payments must be made in United States dollars.
4.3 Refunds. You may request a refund for unused Credit within sixty (60) days of purchase by contacting support.elasticemail.com. You acknowledge and agree that you are not entitled to any refunds for any amounts paid more than sixty (60) days after such purchase or in the event your account is suspended or cancelled for cause.
4.4 Disputes. You must submit to Viive Cloud any disputes with respect to charges within sixty (60) days of the date such charges are incurred. You agree to waive all disputes not brought within sixty (60) days of the date charges are incurred and that all such charges are final.
5. PRIVACY & DATA
5.2 Email Record Retention. You acknowledge and agree that Viive Cloud may, in its sole discretion, permanently erase email records (e.g. copies of emails sent and certain information relating to sent emails) after thirty-five (35) days of such emails being sent, and Viive Cloud has no obligation to retain such records beyond the thirty-five (35) day period.
5.3 User Content Retention. Viive Cloud may, in its sole discretion, permanently erase any User Content and any other information or materials associated with your account if your account is suspended or cancelled for thirty (30) days or more.
“Confidential Information” means any information or materials of Viive Cloud that is reasonably considered in the circumstances to be confidential or proprietary, including, but not limited to, trade secrets, hardware, software (source code and object code), specifications, designs, plans, drawings, data, prototypes, discoveries, research, developments, processes, procedures, intellectual property, market research, marketing techniques and plans, business plans and strategies, pricing policies and price lists, and financial information or other business and/or technical information and materials, whether in oral, written, electronic, graphic or machine-readable form. You agree to keep strictly confidential the Confidential Information and to not use or disclose the Confidential Information for any purpose other than as required for your use of the Services.
7. TERM AND TERMINATION
7.1 Term. These Terms shall commence on the date on which you first register for, access or use the Services and shall continue until your account is cancelled.
7.2 Termination. You may cancel your account at any time by [describe cancellation procedure (e.g. link to support site with cancellation instructions)]. Viive Cloud reserves the right, in its sole discretion and at any time, to immediately suspend or cancel your account, with or without cause, with or without notice and without any refund. You acknowledge and agree that Viive Cloud will not be liable to you or any third party as a result of such suspension or termination, provided that in the event your account is cancelled without cause, Viive Cloud will refund you any unused Credit remaining in your account.
7.3 Effects of Termination. Upon termination of these Terms for any reason: i) any rights and licenses granted to you under these Terms will terminate; ii) upon request within sixty (60) days of termination, Viive Cloud will provide you with a list of unsubscribe requests received by your account; iii) you shall continue to process all unsubscribe requests as required by law with respect to any email campaigns sent through the Services; and iv) you shall immediately pay to Viive Cloud any amounts that are outstanding.
7.4 Survival. The following provisions will survive termination of these Terms: Sections 3, 6, 7.3, 7.4, 8, 9, 10, 11.5, 12.1 - 12.3 and any other provision of this Agreement that must survive to fulfill its essential purpose.
8. DISCLAIMER OF WARRANTIES
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THAT THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIIVE CLOUD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VIIVE CLOUD EXPRESSLY DISCLAIMS THAT: (I) THE SERVICES WILL MEET YOUR EXPECTATIONS OR SATISFY YOUR REQUIREMENTS; (II) THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE; (III) THE RESULTS OBTAINED FROM YOUR USE OF THE SERVICES WILL BE COMPLETE, ACCURATE, RELIABLE OR USEFUL; AND (IV) THAT ANY ERRORS OR DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED. IN ADDITION, VIIVE CLOUD EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO: (I) ANY CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO, ANY SUBSCRIBER CONTENT; (II) ANY PRODUCTS OR SERVICES OFFERED OR PROVIDED BY THIRD PARTIES IN ASSOCIATION OR CONNECTION WITH THE SERVICES, INCLUDING ANY THIRD PARTY SERVICES; (III) ANY HACKING OR OTHER UNAUTHORIZED ACCESS TO OR USE THE SERVICES; AND (IV) ANY DAMAGE TO YOUR SOFTWARE, COMPUTER SYSTEM OR OTHER PROPERTY CAUSED BY VIRUSES OR OTHER MALICIOUS CODE AS A RESULT OF YOUR ACCESS OR USE OF THE SERVICES.
9. LIMITATION OF LIABILITY
9.1 YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER BY STATUTE, CONTRACT, TORT OR UNDER ANY OTHER FORM OF LIABILITY, EXCEED THE AMOUNT OF ANY PAYMENTS MADE BY YOU WITH RESPECT TO THE SERVICES HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
9.2 YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VIIVE CLOUD WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF VIIVE CLOUD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM OR RELATED TO: (I) THE USE OR THE INABILITY TO USE OR ACCESS THE SERVICES, INCLUDING ANY CONTENT, PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR OTHER MATERIAL AVAILABLE THROUGH THE SERVICES; (II) ANY ERRORS OR OMISSIONS IN THE SERVICES OR ANY CONTENT; (III) THE SUSPENSION OR TERMINATION OF YOUR ABILITY TO ACCESS THE SERVICES; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SITE OR FAILURE OF OUR SYSTEMS; (V) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (VI) UNAUTHORIZED ACCESS TO OR ALTERATION OF OUR SYSTEMS OR YOUR TRANSMISSIONS, DATA AND/OR PERSONAL INFORMATION; (VII) STATEMENTS OR CONDUCT OF ANY THIRD PARTY USING THE SITE; (VIII) ANY BUGS, VIRUSES OR THE LIKE THAT ARE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY; OR (IX) ANY OTHER MATTER OR EVENT RELATING TO YOUR OR ANY OTHER PARTY’S USE OF THE SITE OR THE SERVICES.
9.3 YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED FOR THE SERVICES, WHICH WOULD HAVE BEEN SUBSTANTIALLY GREATER IF VIIVE CLOUD WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN.
10. USER INDEMNITY
You agree to defend, indemnify and hold Viive Cloud harmless from and against any and all claims, actions or demands, including without, limitation reasonable legal and accounting fees, resulting from or related to: (i) your access to or use of the Services or any User Content; (ii) your violation of these Terms or the Acceptable Use Policy [link]; (iii) your violation of any applicable laws, including without limitation, anti-spam or privacy laws; or (iv) your violation of any third-party right, including without limitation, any intellectual property, privacy or proprietary right, or obligation of confidentiality. You will use your best efforts to cooperate with Viive Cloud in the defense of any claim. Viive Cloud reserves the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
11.1 Reseller Permission. Viive Cloud may, in its sole discretion, permit you to resell the Services through sub-accounts to third parties (“Third Party Customers”). In the event Viive Cloud grants you permission to act as a reseller of the Services, you agree to be bound by the terms of this Section 11.
11.3 Billing. You will be charged Credit purchased pursuant to Section 4.1 for the use of certain email services by your Third Party Customers based on Viive Cloud’s then current pricing for the Services. In the event there is insufficient Credit in your account to pay for the cost of the use of such services by your Third Party Customers, you acknowledge and agree that your Third Party Customers will be unable to use such services until you have purchased additional Credit, and Viive Cloud will not be liable to you or your Third Party Customers for any loss or damage resulting from such limitation on use.
11.4 Support. You agree that you will be solely responsible for all aspects of customer relations management and support with respect to the Services for your Third Party Customers.
11.5 Indemnity. You agree to defend, indemnify and hold Viive Cloud harmless from and against any and all claims, actions or demands, including without limitation, reasonable legal and accounting fees, resulting from or related to the use of the Services by your Third Party Customers. You will use your best efforts to cooperate with Viive Cloud in the defense of any claim. Viive Cloud reserves the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
12.1 Governing Law. You agree that these Terms, and your use of the Services, are governed exclusively by the laws of the Province of British Columbia and the federal laws of Canada applicable therein (excluding conflicts and choice of laws principles). Any contract formed through the use of the Services will be deemed to have been formed and executed within the Province of British Columbia, Canada. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
12.2 Dispute Resolution.
(a) Means of Resolution. You and Viive Cloud agree that any disputes arising under these terms or otherwise in connection with your use of the Site will be resolved through arbitration under the Commercial Arbitration Act, R.S.B.C. 1996, c. 55, as amended from time to time. Arbitration will be held in Victoria, BC, Canada, and conducted in the English language. Notwithstanding the foregoing, you agree that: (i) the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief, and for the purposes of enforcing the decision of any arbitrator appointed in accordance with this provision, and (ii) Viive Cloud may bypass arbitration in cases of fraud or other crimes against it, and in the case of interference with its technical operations or violations of its rights or property.
(b) Class Waiver. You acknowledge and agree that you and Viive Cloud are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Viive Cloud otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable, then the entirety of this Section 12.2 will be deemed void.
12.3 Jurisdiction and Venue. If Section 12.2 is deemed void or is otherwise inapplicable, all disputes under these Terms will be resolved by a court of competent jurisdiction located in Victoria, British Columbia, Canada, provided that the courts in any relevant venue will have jurisdiction for the purposes of obtaining and enforcing injunctive or other equitable relief.
12.4 Force Majeure. Neither party shall be liable for delay or failure in performance (other than the making of payments) resulting from any cause beyond the reasonable control of such party, including but not limited to, acts of God, acts of war, riot, fire, flood, or other disaster, acts of government, strike lockout, power failures, or the inability to use or the failure of any third party telecommunications carrier or other services, which events or conditions prevent in whole or in part the performance by such party of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make performance commercially unreasonable.
12.5 Assignment. You may not assign any of your rights or obligations under these Terms without our prior written consent. Viive Cloud may freely assign our rights and obligations under these Terms, either in part or in full, without notice to you.
12.6 Notice. Viive Cloud may communicate with you about the Services or these Terms, including any changes to these Terms, by email or by posting notices on the Site. Unless expressly prohibited by law, you consent to receive communications relating to the Services or our business relationship from Viive Cloud electronically, and agree that all notices, waivers, agreements, disclosures and other communications satisfy any legal requirements that such communications be in writing. You may provide legal notice to Viive Cloud at [address].
12.7 Nature of Relationship. Nothing in these Terms or from your use of the Services will create or be deemed to create any partnership, joint venture, agency, franchise or other business relationship between you and Viive Cloud, even if your use of the Services is for a commercial purpose which has been authorized by us. You and Viive Cloud will, at all times, be and remain independent contractors.
12.8 Severability. The provisions of these Terms are severable. If any individual provision is held to be invalid, unenforceable or contrary to applicable law, such provision shall be construed, limited, altered or deleted, as necessary, to eliminate the invalidity, unenforceability or conflict with applicable law while endeavoring to preserve the intention of these Terms, and all other provisions shall remain in full force and effect.
12.10 Waiver. The failure by Viive Cloud to exercise or enforce any right or remedy under these Terms will not constitute a waiver of such right or remedy.
12.11 Contact. If you wish to contact Viive Cloud with any questions, comments or concerns regarding the Services or these Terms, please refer to our Contact Us page.