Effective as of April, 2014
Welcome to CakeMail! We hope that you will enjoy our email marketing online services that will, among other things, enable you to collect visitor email addresses and to create, launch, and manage online email campaigns (“Services”).
Power and Authority
- Registration. We restrict access of the Services to registered users.
- Age. You must be 18 years or older (or age of majority in your country of residence) to use the Services.
- Account Information. You must provide true, accurate, current, and complete information about yourself (Organization and/or individual, as the case may be), including but not limited to a valid email address (collectively, your “Account Information”). You agree to update your Account Information as necessary to keep it accurate. You understand and agree that you are solely responsible for maintaining the confidentiality of your Account Information (including passwords) and for restricting access to your hardware device while using the Services. You agree to accept responsibility for all activities that occur under your account.
- Login and Passwords. Your login may only be used by yourself. Sharing a login with other people is not permitted. An Organization may create separate logins for as many individual users as it wishes. You are responsible for maintaining the security of your account login and passwords.
- Free Account. Only one free account per Organization is permitted.
- Data Archival. For all accounts, we reserve the right to delete all user activity older than 90 days, after which only aggregate activity will be available to you.
Payments and Refunds
- Credit Card Payment. Payment for Services will be made by a valid credit card accepted by us, unless other payment arrangements have been made. You hereby authorize us to charge your credit card for such amounts according to our pricing terms.
- No Refund. All Services fees paid are non-refundable, unless an account is terminated by us without cause, in which case, a refund may be granted on a pro-rata portion of your prepayment.
- Reactivation Fee. We will charge a reactivation fee to reactivate an account that has been deactivated due to non-payment.
API Terms; Specific Terms
- We reserve the right to throttle API requests;
- Abuse or excessively frequent requests to the API may result in the temporary or permanent suspension of your account's access to the API. We, at our sole discretion, will determine abuse or excessive usage of the API. We will make a reasonable attempt via email to warn the account owner prior to suspension; and
- We reserve the right to modify or discontinue, temporarily or permanently, the API (or any part thereof) at any time with or without notice.
Content; Intellectual Property
- Your Content. All of your Content must comply with Canadian, U.S. and your local copyright and other intellectual property or other laws. You must only use images and text you are entitled to use. We claim no intellectual property rights over the material you provide through the Services. Your Content materials remain yours.
- Our Content and Software. All content displayed by us as well as all the software (including any source code) used in connection with the Services are our exclusive property or the property of third parties and is protected by copyright laws.
- Trademarks. Our company or other third party names and logos and all related product and service names, design marks, trademarks and slogans that our displayed on or through the Services or used in connection with the Services, are our sole property or the property of our affiliates or licensors (collectively, “Marks”). You are not authorized to use any of the Marks in any advertising, publicity or any other commercial manner without our prior written consent.
- No License. Nothing appearing on or through the Services will be construed as granting you any license, right, title or interest relating to the Marks or other intellectual property used in connection with the Services (collectively, “Intellectual Property”) and the Intellectual Property remains our exclusive property or the property of its owners. Except as stated herein, you agree not to display, copy, reproduce, use or distribute any Intellectual Property without our prior written consent. Also, you cannot mirror any material contained on the Services or made available through the Services.
- Restrictions. You shall not (i) permit any third party to access the Services except as permitted herein, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
- Feedback. We shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Services or other feedback provided by you relating to the operation of the Services (collectively, “Feedback”). You hereby irrevocably assign all right, title and interest in and to the Feedback to us and waive all your moral rights in the Feedback.
- Interruptions. You acknowledge that: (i) the provision of Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we are entitled, without any liability to you, to suspend access to any portion or all of the Services at any time (a) for scheduled downtime to permit us to conduct maintenance or make modifications to the Services; (b) in the event of a denial of service attack or other attack on the Services or other event that we determine, in our sole discretion, that a risk to the Services, to you or to any of our other users may be created if the Services were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Interruptions”).
- No Liability. We shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Interruption.
- Notice of Interruption. To the extent we are able, we will endeavor to post updates on our website on this page, regarding any Service Interruption and resumption of service following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.
Prohibited Acts; Prohibited Services
- Use automated tools to operate the Services (scripts, etc.);
- Use the Services to store Social Security Numbers, passwords, security credentials or sensitive personal information;
- Host images and files on our servers other than those intended for use in your email campaigns;
- Use the Service to design an email campaign and send it through another means; or
- Prohibited Services. We do not allow Organizations that offer the following types of services, products, or content, to use our Services:
- Pornography, nudity, escorts or anything sexually explicit
- Illegal goods or services
- Pharmaceutical products
- Work from home opportunities
- Online trading
- Multi-level marketing
- Affiliate marketing
- Credit repair, Mortgages and/or Loans
- List brokers or List rental services
- Any other Content that we deem inappropriate
- Contact. Any misuse of the Services may be reported to firstname.lastname@example.org.
- Security. We endeavour to use reasonable security measures to protect against unauthorized access to your account and Account Information, and to any data which may be stored by us. We cannot, however, guarantee absolute security of your account or the personal information we collect, and we cannot promise that our security measures will prevent third-party “attackers” from illegally accessing the Services or their content. YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF ANY INFORMATION ON OR THROUGH THE SERVICES IS AT YOUR OWN RISK AND you accept all risks of unauthorized access to the Services, your Account Information and any other information you provide to us or through the Services. We will not be responsible for any losses arising out of the unauthorized use of your account and you agree to indemnify and hold us harmless, our officers, directors, shareholders, employees, distributors, agents, partners, licensors, information providers and account providers (COLLECTIVELY, “REPRESENTATIVES”), as applicable, for any improper, unauthorized or illegal uses of your account. You agree to immediately notify us of any unauthorized use or your account, or any other breach of security at email@example.com For the purposes of this Section “Disclaimer” and Section “Limitation of Liability; Indemnity”, “we” or “us” means CakeMail and our Representatives.
- "As is" Basis. THE SERVICES ARE PROVIDED “AS IS”. THE 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. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THE SERVICES WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND WE DISCLAIM ANY LIABILITY RELATING THERETO.
- Warranty Disclaimer. WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES (I) THAT THE SERVICES ARE OR WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR ERROR FREE OR (II) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. IN PARTICULAR, EMAIL DELIVERY TO THE RECIPIENT INBOX IS NOT GUARANTEED. WITHOUT PRIOR NOTICE, WE MAY MODIFY, SUSPEND, OR DISCONTINUE ANY ASPECT OR FEATURE OF THE SERVICES OR YOUR USE OF THE SERVICES. IF WE ELECT TO MODIFY, SUSPEND, OR DISCONTINUE ANY PART OF OR ALL OF THE SERVICES, WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY.
- Exclusive Remedy. The sole and exclusive remedy for any failure or NONPERFORMANCE of the Services shall be for US to use commercially reasonable efforts to adjust or repair ANY PORTION OF THE Services THAT CAUSED ANY SUCH FAILURE OR NONPERFORMANCE.
Limitation of Liability; Indemnity
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, DELICT, QUASI-DELICT, NEGLIGENCE, CONTRACT, WARRANTY, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, SHALL WE OR ANY OF OUR REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE DAMAGES, SPECIAL ADMINISTRATIVE MONETARY PENALTIES OR OTHER PENALTIES OR DAMAGES UNDER ANTI-SPAM LEGISLATION, OR OTHER DAMAGES ARISING OUT OF OR RELATING TO (I) YOUR USE, MISUSE OR INABILITY TO USE THE SERVICES, (II) THE INTERRUPTION, SUSPENSION OR TERMINATION OF ANY PART OF OR ALL THE SERVICES, OR (III) YOUR VIOLATION OF ANY APPLICABLE LAW INCLUDING BUT NOT LIMITED TO ANTI-SPAM LAWS AND EVEN IF WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, WE ARE FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, OUR LIABILITY TO YOU WILL BE LIMITED TO THE AMOUNT PAID FOR THE LAST 3 MONTHS OF SERVICE PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
Termination of Your Account
- Account. For the purposes of this Section “Termination of Your Account”, “account” includes, for an Organization, the account of that Organization and all of the accounts of the users of the Services which act on behalf of such Organization, such as employees and consultants.
- Termination by You or by Us. Your account will be automatically terminated at the end of your pre-paid period if you ask us to stop providing the Services to you (you must send us a notice at least 7 days in advance). We reserve the right to modify or discontinue, temporarily or permanently, all or part of the Services, at any time with or without notice, without any liability whatsoever.
- No Liability. We shall have no liability to you or any third party because of any termination of your account.
- Consequences of Termination. All of your content and data used in connection with the Services (collectively, “Content”) will be immediately deleted from our servers upon termination of your account. This information cannot be recovered once your account is terminated.
- Account Inactive. If you do not log into a free account for more than 6 months, we reserve the right, at our sole discretion, to classify the account as inactive and terminate it.