Terms of use
Through Services (“Services”), CakeMail, Inc. (“CakeMail”) provides companies and individuals a variety of tools and resources, namely the CakeMail Agency Console, CakeMail End User Interface, CakeMail Engine API and the CakeMail Modules API to use directly as customers, and provide indirectly to their end-users, access to email marketing technology (“Software”). The Software resides on the CakeMail servers, and includes the ability to manage and track end-user accounts, and the ability to collect website visitor e-mail addresses and to create, launch, and manage online e-mail campaigns. This Service or Software may not be used for the sending of unsolicited e-mail (referred to as “spam”). See our Anti-Spam Policy. The following are the terms and conditions for use of the Services or Software. You represent, covenant, and warrant that you and on behalf your end-users, you will use the Services or Software only in compliance with the Agreement and all applicable laws.
Services and Support
- The Services are provided subject to this Agreement, as it may be amended by CakeMail, and any guidelines, rules or operating policies that CakeMail may establish and post from time to time (the “Agreement”). By posting updated versions of the Agreement at the CakeMail web site, or otherwise providing notice to you, CakeMail may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Services or Software at its sole discretion.
- The Software is available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Services are not available to individuals under the age of 18. If you do not qualify, please do not use the Services.
- The Services enable web sites to sign up web site visitors, collect and retrieve visitor sign-up data, and develop and execute e-mail communications with visitors and other targeted prospects.
- All email delivery prices are subject to change at any time. All fees paid to CakeMail for Services are non-refundable, unless an account is terminated by CakeMail for a reason other than violation of the Anti-Spam Policy. Payment for Services will be made by a valid credit card accepted by CakeMail, unless other payment arrangements have been made between you and an authorized CakeMail representative. You hereby authorize CakeMail to charge your credit card for such amounts according to your service usage. Fees are payable in US dollars or Canadian dollars. If CakeMail is for any reason unable to effect automatic payment via your credit card, you will be notified via e-mail.
- For all accounts, CakeMail reserves the right to delete all email reporting logs older than 90 days (archived or not), after which only summarized mailing data will be available to the user. After an account has become de-activated due to non-payment or an untimely authorization for payment, CakeMail reserves the right to charge an account re-activation fee.
- You will provide true, accurate, current, and complete information about yourself as requested in the CakeMail Credit Card Authorization Form. As part of the registration process, you will use an e-mail address and password for your CakeMail account(s). You are responsible for maintaining the security of your account(s), passwords, and files, and for all uses of your account(s) and sub-accounts. CakeMail reserves the right to refuse registration of, or cancel, accounts it deems inappropriate.
- It is understood that CakeMail makes no guarantee that HTML messages will be rendered properly on all recipients’ e-mail programs, due to the wide variety of HTML generation tools available. CakeMail makes every attempt to make sure that all e-mail messages sent through our servers follow e-mail standards, but we cannot guarantee that messages will look consistent across all e-mail platforms due to the number of different HTML composition tools available. For example, if you use Microsoft Word to generate HTML e-mail messages, it is expected that recipients of your message using a non-Microsoft e-mail application may have difficulty reading your message. For best results CakeMail recommends, but does not guarantee, the use of HTML editors that generate HTML that adheres to W3C standards.
Restrictions and Responsibilities
- This is an Agreement for Services, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Services; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Software. The Services shall be used for your business purposes. If you are using the Services in any country in the European Community, the prohibition against modifying, translating, reverse engineering, decompiling, or disassembling the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
- You acknowledge and agree that the Services, Software and the CakeMail company names and logos and all related product and service names, design marks and slogans, are the property of CakeMail or its affiliates or suppliers (collectively, the “Marks”). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without the prior written consent of CakeMail. Your use of the Services confers no title or ownership in the Service, the Software or the Marks and is not a sale of any rights in the Service, the Software or the Marks. All ownership rights remain in CakeMail or its third party suppliers, as the case may be.
- You represent, covenant, and warrant that you and your end-users will use the Services and Software only in compliance with the Agreement and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation). You agree you will not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited e-mail to any third party. You agree you will not use any of your end-user’s subscriber lists or any other subscriber, end-user or customer information for any purposes other than those your end-users and customers intended with the Service. You agree you will not share your customer’s subscriber, end-user or general information with other customers or with any other parties. You and your end-users hereby agree to indemnify and hold harmless CakeMail against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise arising from or relating to your use of the Services or Software. Although CakeMail has no obligation to monitor the content provided by you or your use of the Services, CakeMail may do so and may remove any such content or prohibit any use of the Services it believes may be (or is alleged to be) in violation of the foregoing.
- You or your end-users may only use CakeMail for lawful purposes. Transmission or solicitation of any material that violates Canadian federal, provincial or other laws that may apply in your local area is prohibited. This may include material that is obscene, threatening, harassing, libelous, or in any way a violation of intellectual property laws or a third party’s intellectual property rights.
- In using the varied features of the Services, you may provide information (such as name, contact information, or other registration information) to CakeMail. CakeMail may use this information and any technical information about your use of the Services to tailor its presentations to you, facilitate your movement through the Service, or communicate separately with you.
- CakeMail will not use any of your subscriber lists or any other end-user or customer information for any other purposes than those intended with the Service. Your customer information will not be shared with any other parties. In addition, CakeMail will not use your customer information for the purpose of sending unsolicited commercial e-mail.
- You will adopt and maintain the Privacy Policy, which may be modified by CakeMail from time to time.
- You or your end-users may not use CakeMail to distribute illegal contests, pyramid schemes, chain letters, or multi-level marketing campaigns.
- You or your end-users may not use CakeMail to send email campaigns that link to or display obscene content, pharmaceutical related content, illegal software, viruses, or to distribute any other content that we deem inappropriate.
System Requirements
CakeMail can be used in most current PC-based or Macintosh-based internet browsers. A stable connection to the Internet is required to work with CakeMail. CakeMail does not guarantee functionality.
Compliance rules for sending e-mail
All CakeMail customers and end-users must follow the rules of the federal CAN-SPAM act, the Fighting Internet and Wireless Spam Act (Bill C-28), and CakeMail’s Anti-Spam policy when sending e-mail through the service. Accordingly, we require the following of e-mail messages sent through the CakeMail system:
- - All e-mails must contain a one-click unsubscribe link. CakeMail scans every mailing for the existence of an unsubscribe link. If an unsubscribe link is not detected, the user is informed and is recommended to include an unsubscribe link before continuing.
- - All e-mails must contain non-Internet contact information of the sender, such as your company’s address, and your company’s phone number.
- - All e-mails must state the reason the recipient is receiving the message. For example, “You are receiving this message from ABC Company because you signed up for our e-mail list at www.abc.com.”
These 3 guidelines will help ensure that you and your end-users help CakeMail maintain its reputation and white-listing status and whitelisting programs. If at any time your mailing is flagged as SPAM by a recipient, CakeMail reserves the right to cancel your account without notice.
Email and Permission Practices
- Every email message sent in connection with the Services must contain an “unsubscribe” link or other mechanism that allows subscribers to remove themselves from your mailing list. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to CakeMail. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link.
- You agree to import, access or otherwise use only permission-based lists (note: purchased lists may not be used; please contact CakeMail if you have questions).
- You cannot mail to distribution lists, newsgroups, or spam email addresses.
- You are responsible for monitoring, correcting, processing unsubscribe requests within 10 days, and updating the email addresses to which messages are sent through any CakeMail account.
- Emails that you send through the Service may generate abuse complaints from recipients. You are responsible for ensuring that your (customers) email campaigns do not generate a number of abuse complaints in excess of industry norms. CakeMail, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement.
- CakeMail, at its own discretion, may immediately disable your access without refund to the Services if CakeMail believes in its sole discretion that you have violated any of the email and permission practices listed above, or the CakeMail Anti-Spam Policy.
Termination
- CakeMail may delete any of your or your end-users archived data within 30 days after the date of termination. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.
- If you do not log into your account for more than 120 days, CakeMail (at its sole discretion) reserves the right to classify the account as inactive. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER SIGNUPS, MAY BE PERMANENTLY REMOVED FROM THE CAKEMAIL DATABASE.
Warranty Disclaimer; Remedies
USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. CAKEMAIL DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED “AS IS” AND CAKEMAIL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Your sole and exclusive remedy for any failure or nonperformance of the Services shall be for CakeMail to use commercially reasonable efforts to adjust or repair the Services or Software.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL CAKEMAIL OR ANY OF ITS SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS “CakeMail “) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF CAKEMAIL SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT NOTWITHSTANDING THE FOREGOING, CAKEMAIL IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE LIABILITY OF CAKEMAIL TO YOU WILL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SERVICE.
Miscellaneous
- If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- CakeMail and you agree that the Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of the Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.
- No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind CakeMail in any respect whatsoever.
- In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
- The Agreement shall be governed by the laws of Canada without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the state or federal courts located in Montreal, Quebec, Canada.
