Last updated: 4 March 2019
The services provided to You under the EmailOctopus Terms of Service from which these Email Serive Provider Terms are linked (“Terms”) include certain services developed, provided or maintained by third-party service providers of Us including SendGrid Inc. and its affiliates (“Email Delivery Service Providers”). Access to or use of any those services (“Email Delivery Service”) by You are subject to any separate agreement that You may enter into (or may have entered into) relating to those Email Delivery Services (each, a “Email Delivery Service Agreement”). The terms of any Email Delivery Service Agreement will apply to the applicable Email Delivery Services provided under that Email Delivery Service Agreement in addition to the Terms. Except as set forth in the Terms, the terms of any Email Delivery Service Agreement will control in the event of a conflict between the terms of the Terms and that Email Delivery Service Agreement. All other Email Delivery Services will be subject to the terms of the Terms. Each Email Delivery Service Provider retains all right, title and interest in and to all Email Delivery Services and all software, hardware or other technology used to provide those services, and any additions, improvements, updates, and modifications thereto. Each Email Delivery Service Provider will be a beneficiary of the Terms as to the Email Delivery Services provided by the Email Delivery Service Provider and will have all rights necessary to enforce Terms against You in the case of any breach of those terms.
You represent, warrant, and covenant that: (a) You have the legal right and authority to enter into the Terms; (b) You have the legal right and authority to perform its obligations under the Terms and to grant the rights and licenses described in the Terms and in any applicable additional agreement You enter into in connection with any of the services provided under the Terms; (c) all Content (as defined below) is in compliance with the terms of the Terms; (d) You will access and use the services provided under the Terms in compliance with the terms of the Terms and all laws, rules and regulations applicable to its obligations under the Terms; (e) You will not export or re-export the Service except in compliance with the U.S. Export Administration Act and the related rules and regulations and similar non-U.S. government restrictions, if applicable; (f) You will not remove or export from the United States or allow the export or re-export of the Service (i) into (or to a national or resident of) any embargoed or terrorist-supporting country, (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the U.S. government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or (iv) otherwise in violation of any export or import laws; and (g) You are not located in, under the control of, or a national or resident of any prohibited country or on any prohibited party list referred to in subsection (f) immediately above.
THE SOLE WARRANTIES REGARDING THE SERVICES PROVIDED UNDER THE TERMS ARE THOSE EXPRESS WARRANTIES (IF ANY) PROVIDED TO YOU BY US UNDER THE TERMS. ALL EMAIL DELIVERY SERVICES ARE PROVIDED BY EACH EMAIL DELIVERY SERVICE PROVIDER STRICTLY “AS IS” AND “AS AVAILABLE” AND ALL EMAIL DELIVERY SERVICE PROVIDER S EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ALL EMAIL DELIVERY SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. THE SERVICES ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR HIGH RISK ACTIVITIES (AS DEFINED BELOW). NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR ANY EMAIL DELIVERY SERVICE PROVIDER WILL CREATE ANY WARRANTIES BY OR ON BEHALF OF EMAIL DELIVERY SERVICE PROVIDER .
You agrees to and hereby does indemnify, defend, and hold harmless Us, the Email Delivery Service Provider s and their respective affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from or relate to any claim or allegation against any Indemnified Party arising from You accessing or using the services provided under the Terms (including any Email Delivery Services) or from any email or other communication generated or sent through such services or any content contained therein, whether or not in breach of the Terms. Limitation on Liability. YOU AGREE THAT RESPONSIBILITY AND LIABILITY FOR THE SERVICES PROVIDED UNDER THE TERMS IS STRICTLY WITH US. NO EMAIL DELIVERY SERVICE PROVIDER WILL HAVE ANY LIABILITY UNDER THE TERMS OR OTHERWISE IN CONNECTION WITH ANY SERVICES PROVIDED UNDER THE TERMS (INCLUDING EMAIL DELIVERY SERVICES), INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR OTHER FORM DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. IN JURISDICTIONS WHERE THE FOREGOING LIMITATION OF LIABILITY IS NOT PERMITTED, THE LIABILITY OF ANY EMAIL DELIVERY SERVICE PROVIDER WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. NEITHER WE NOR ANY EMAIL DELIVERY SERVICE PROVIDER WILL BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU, FOR (A) SENSITIVE DATA (AS DEFINED BELOW) SENT TO US OR SUCH EMAIL DELIVERY SERVICE PROVIDER ; (B) VIOLATION OF ANY LAW BY US OR SUCH EMAIL DELIVERY SERVICE PROVIDER WHEN ACTING AT YOUR DIRECTION; OR (C) THE SENDING BY US OR SUCH EMAIL DELIVERY SERVICE PROVIDER OF YOUR EMAILS, INCLUDING ANY CLAIMS AGAINST US OR SUCH EMAIL DELIVERY SERVICE PROVIDER DUE TO YOUR SENDING OR DATA COLLECTION PRACTICES OR CONTENT (AS DEFINED BELOW).
You will be responsible for all data, information and other content (“Content”) provided by You in connection with the services provided under the Terms. You will not provide and will not permit any third party to provide or to use the services provided under the Terms to provide, any Content that: (a) infringes, misappropriates or violates any intellectual property or other rights of any third-party; (b) is defamatory, harmful to minors, obscene or child pornographic; (c) contains any viruses or programming routines intended to damage the services or any software, hardware or other technology used to provide the services or surreptitiously intercept or expropriate any data or information; (d) is false, misleading or inaccurate; or (e) constitutes Sensitive Data. For the purposes of the Terms, “Sensitive Data” means (i) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof), (ii) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), (iii) employment, financial, genetic, biometric or health information, (iv) racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation, (v) account passwords, (vi) date of birth, (vii) criminal history, (viii) mother’s maiden name or (ix) or any other information that falls within the definition of “special categories of data” under EU General Data Protection Regulation 2016/679 (“GDPR“), or any other applicable law relating to privacy and data protection. You will not use the Service for any high risk activities including, but not limited to, the operation of nuclear facilities, air traffic control, life support systems, emergency services or where the use or failure of the Service could lead to death, personal injury or environmental damage (collectively, “High Risk Activities”). We and the Email Delivery Service Provider s do not intend uses of the Email Delivery Services to create obligations under The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), the Gramm-Leach-Bliley Act (“GLBA”) or similar laws and makes no representations that such Email Delivery Services satisfy the requirements of such laws. If You are (or become) a Covered Entity or Business Associate (as defined in HIPAA) or a Financial Institution (as defined in GLBA), You agree not to use the Email Delivery Services for any purpose or in any manner involving Protected Health Information (as defined in HIPAA) or Nonpublic Personal Information (as defined in GLBA). You acknowledge that email is an insecure medium that is generally not encrypted in transit, and security of information transmitted through the Internet can never be guaranteed. We and the Email Delivery Service Provider s will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any Content. We and the Email Delivery Service Providers may take remedial action if any Content violates this Section, however We and the Email Delivery Service Providers are under no obligation to review any Content for accuracy or potential liability.
You grant to Us and the Email Delivery Service Provider s all necessary rights and licenses in and to all Content necessary for Us and the Email Delivery Service Provider s to provide the services under the Terms. You will maintain an adequate back-up of all Content and Us and the Email Delivery Service Provider s will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of any Content. You represent and warrant that You has all necessary right, title, interest and consent necessary to allow Us and the Email Delivery Service Providers to use all Content as set forth in the Terms and as otherwise necessary to provide the services under the Terms.
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