PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES. BY CLICKING ON THE “CREATE ACCOUNT” BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH Emailwish, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE AGREEMENT. THE TERM “YOU” OR “USER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED FOR THE SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
- DEFINITIONS. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
- 1“Access Protocols” means the passwords, keys, certificates, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Services.
- 2“Authorized User” means any individual who is an employee of Customer or an affiliate, partner, service provider, or such other person or entity as may be authorized by Customer to access the Services pursuant to Customer’s rights under this Agreement.
- 3“Customer Data” means any data, information, programs, and other content provided or transmitted by Customer to the Software and hosted through the Services, including, without limitation, End Customer Data, and Customer Marketing Content.
- 4“Customer Marketing Content” means Customer’s trademarks, trade names, service marks, slogans, logos, other source identifiers, and marketing and promotional content provided by Customer to Emailwish in connection with the advertising, promotion, and sale of Customer’s products and services.
- 5“Documentation” means written information (whether contained in user or technical manuals, training materials, specifications, or otherwise, whether in the paper, electronic, or other written form) regarding the Software that is made available by Emailwish to Customer online or in any other manner.
- 6“End Customer Communications” means Customer’s communications with its customers, including emails, communications through websites and transactions, and similar opt-in communications.
- 7“End Customer Data” means online data collected from Customer or an Authorized Reseller through the Software regarding Customer’s customers.
- 8“Intellectual Property Rights” means any and all intellectual property, industrial property, and other proprietary rights throughout the world, including all rights in, too, or arising out of patents, patent applications, inventions (whether patentable or not), invention disclosures, trade secrets, know-how, proprietary information, works of authorship, copyrights, mask works, moral rights, trademarks, service marks, software, data, technology, layout designs and design rights, and all registrations, applications, renewals, extensions, or reissues of any of the foregoing.
- 9“Services” means the Software, Documentation, and any related services agreed by the parties in a Service Order.
- 10“Service Order” means any online or written form or other communication provided by Emailwish evidencing the initial designation of the Service by the Customer and any subsequent orders to purchase the Services.
- 11“Software” means the software-as-a-service application hosted on Emailwish’s servers or those of its hosting services providers, and accessed and used by Customer via the worldwide web, including all changes, corrections, bug fixes, enhancements, updates, and other modifications to such software, whether made by or on behalf of Emailwish, Customer, or any third party.
- MODIFICATION TO THE AGREEMENT.
Emailwishmay amends the Agreement from time to time due to changes to the Services, to account for developments under the law, or for any other reason. When material modifications are made, Emailwishmay (and where required by law, will) send an email to you at the last email address you provided to us pursuant to the Agreement to provide an updated copy of the Agreement. Emailwish may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK Emailwish’S WEBSITE TO VIEW THE THEN-CURRENT TERMS.
- PROVISION OF SERVICES
- 1 Overview of Services. The Services include using the Software to retrieve customer information from End Customer Communications, viewing data available from the End Customer Communications, and using the Software to send messages to end customers through email and SMS and/or MMS text messages. The Services shall also include any required, usual, appropriate or acceptable methods to perform activities related to the Services, including (a) carrying out the Services or the business of which the Services are a part, (b) carrying out any benefits, rights, and obligations related to the Services, (c) maintaining records relating to the Services, and (d) complying with any legal or self-regulatory obligations related to the Services.
- 2 Access. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, Emailwish grants Customer and its Authorized Users a non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Services during the Term (as defined below).
- 3 Restrictions. Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Software or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (b) modify, adapt, alter, translate, or create derivative works of the Software or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (e) bypass, delete, or disable any copy protection or security mechanisms of the Software; (f) use or demonstrate the Services in any other way that is in competition with Emailwish; (g) remove any notice of proprietary rights from the Services; (e) copy, modify, translate or otherwise create derivative works of any part of the Services; (h) use manual or automated software, devices, robots, spiders, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Services in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Services; (i) use the Services in a manner which interferes with or disrupts its integrity or performance; (j) use or allow the transmission of, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Services in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (k) use or copy the Software or Documentation, except as expressly allowed herein. Emailwish shall have the right, but not the obligation, to review and monitor all use of the Services to ensure compliance with the terms and conditions of this Agreement.
- 4 Authorization and Account Information. Customer represents and warrants that: (i) the information Customer provides in connection with Customer’s registration for the Services is accurate and complete; (ii) if Customer is registering for the Services as an individual, that Customer is at least 18 years of age and has the legal capacity to enter into this Agreement; and (iii) if registering for the Services as an entity or organization, (a) Customer is duly authorized to do business in the country or countries and state and local jurisdictions where it operates, (b) the individual accepting this Agreement and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of Customer, and (c) Customer’s employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind Customer to this Agreement and all transactions conducted under Customer’s account.
- 5 Limitations on Use. The delivery of messages by means of the Software and Services may involve transmissions over various networks, and the messages (including Customer Marketing Content and other images and text contained therein) may need to be reformatted or otherwise revised by Emailwish to conform to the formatting or technical requirements of such networks in order for Emailwish to effectively provide the Services. Customer understands and agrees that messages exceeding maximum character limitations may be truncated, abbreviated, reduced, or otherwise abruptly cut short and that Customer Marketing Content and other images and text may need to be reformatted or otherwise modified by Emailwish in order to effectively provide the Services. As a result, Emailwish may establish general practices and limits concerning the maximum number of messages or campaigns that may be distributed by the Customer or the maximum size of any messages or campaigns that may be transmitted through the Services. Further, Emailwish will not materially alter any Customer Marketing Content without the prior written consent of Customer
- 6 Downtime. Customer acknowledges that Customer’s access to and use of the Services may be suspended for the duration of any scheduled 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, or any other acts, omissions or failures on the part of Emailwish.
- 7 Service Orders. Each Service Order is hereby incorporated into this Agreement by reference and is subject to the terms and conditions of this Agreement; provided, however, that in the event of a conflict with the terms contained in any Service Order, the terms contained in the body of this Agreement shall control unless express reference to the superseded term in the Agreement is set forth in the Service Order. Any terms and conditions that may be contained in any acknowledgment, invoice, purchase order, or other Customer-provided form are specifically null and void.
- USE OF THE SERVICES
- 1 IT Responsibilities of Customer. Customer shall be responsible for setting up and configuring the Software, including providing Emailwish with applicable configuration data to be used by the Software, including without limitation any Access Protocols that Customer provisions or causes to be provisioned to Customer’s employees, service providers, or other third parties authorized by Customer. Customer shall be responsible for obtaining and maintaining, at Customer’s expense, all of the necessary telecommunications, computer hardware, software, services, and Internet connectivity required by Customer or any Authorized User to access the Software from the Internet.
- 2 Access Protocols. The customer is solely responsible for protecting and safeguarding any Access Protocols that have been provided to the Customer or that are generated in connection with Customer’s use of the Services. Customer agrees not to disclose or make available any Access Protocols other than to its Authorized Users and shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Access Protocols and the Services. Customer is solely and fully responsible for any use of or access to the Services using Access Protocols, any Security Incident (as defined below) caused by Customer’s Authorized Users, and all activities that occur in connection with its Access Protocols and its use of the Services. Without limiting the foregoing, Customer is responsible for all charges and liabilities applicable to data and information transmitted to and stored under Customer’s account on the Services. In the event Customer believes the Access Protocols have been compromised, or there has been any unauthorized use or access of the Services under Customer’s account or any other known or suspected breach of security, Customer shall immediately notify Emailwish by email to success@Emailwish.com, but in no event more than twenty four (24) hours following discovery of such breach. Although Emailwish is not obligated to monitor Customer’s Access Protocols, in the event Emailwish believes Customer’s Access Protocols have been compromised, or there has been any unauthorized use or access of the Services under Customer’s account or any other known or suspected breach of security, Emailwish may suspend Customer’s access to the Services, terminate the affected Access Protocols, or take any other action Emailwish reasonably deems appropriate to protect the integrity of the Software and the Services. For purposes of this Section 4.2, a “Security Incident” means unauthorized access to, use, or disclosure of any data maintained by Emailwish.
- 3 Prohibited Activities. Customer may not, and shall not permit any of its employees, contractors or Authorized Users to use the Services (i) in violation of this Agreement; (ii) to infringe, misappropriate, or otherwise violate the Intellectual Property Rights of any third party or any rights of publicity or privacy; (iii) to violate any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export/import control (including the Export Administration Regulations, the International Traffic in Arms Regulations, and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control), unfair competition, anti-discrimination and/or false advertising); (iv) to store or transmit defamatory, libelous, unlawfully threatening, or unlawfully harassing data; (v) to store or transmit obscene, pornographic or indecent data in violation of applicable law; (vi) to introduce or propagate any unauthorized data, fraudulent messages or malicious content such as malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; (vii) to transmit any content that is designed to intentionally evade filters; (viii) to send any prohibited calls to life-line services, such as hospitals, fire, police, 911, or utility-related telephone numbers; (ix) for harvesting, or otherwise collecting, information about others without their consent; or (x) for misleading others as to the identity of the sender of messages or broadcasts by creating a false identity, impersonating the identity of someone/something else, or by providing contact details that do not belong to Customer. Customers may not attempt to discover, access, read, alter, destroy, or damage any programs, data, or other information stored on or in connection with the Services by any other party. Customer may not interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the Services. Customers may access the Services only through the interfaces and protocols provided or authorized by Emailwish. Customer may not access the Services through unauthorized means, such as unlicensed software clients. Customer may not compile or use the Emailwish provided materials or any other information obtained through the Services for the purpose of spamming, unsolicited contacting, or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations.
- 4 No Children’s Information. Customer agrees not to upload or incorporate into any customer lists, or otherwise provide to Emailwish any information about individuals that Customer knows or has reason to know are under the age of 13. If Customer discovers that it uploaded, incorporated into any customer lists, or otherwise provided to Emailwish any information about individuals that Customer knows or discovers are under the age of 13, Customer agrees to promptly remove such information from Emailwish’s systems and notify Emailwish of such occurrence.
- 5 Suspension, Limitation, and Termination of Access. Emailwish shall be entitled, without liability to Customer, to immediately suspend, terminate or limit Customer’s access to the Services at any time in the event that Emailwish determines, in its reasonable discretion, that (i) the Services are being used by Customer, or its Authorized Users, in violation of applicable federal, state or local law or ordinance or this Agreement; (ii) the Services are being used by Customer in an unauthorized, inappropriate, or fraudulent manner; (iii) the use of the Services by Customer adversely affects Emailwish’s equipment or service to others; (iv) Emailwish is prohibited by an order of a court or other governmental agency from providing the Services; (v) there is a denial of service attack or any other event which Emailwish determines, in its sole discretion, may create a risk to the Services or to any other customers if the Services were not suspended; (vi) there is a security incident or other disaster that impacts the Services or the security of Customer Data; or (vii) any amount due under this Agreement is not received by Emailwish within fifteen (15) days after it was due. Without limiting the generality of this Section, Emailwish shall have no liability for any damages, liabilities, or losses as a result of any suspension, limitation, or termination of Customer‘s right to use the Services pursuant to this Section 4.5.
- INTELLECTUAL PROPERTY
- 1 Ownership. The customer acknowledges and agrees that the Services (including the Software and Documentation) are protected by copyright and other laws relating to Intellectual Property Rights and that the Services embody valuable confidential information of Emailwish and its suppliers, the development of which required the expenditure of considerable time and financial resources. All right, title, and interest in and to the Services, and all worldwide Intellectual Property Rights therein and associated therewith, are the exclusive property of Emailwish and its suppliers. All rights in and to the Services not expressly granted to Customer in this Agreement are reserved by Emailwish and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, or any part thereof, including any right to obtain possession of any source code, data, or other technical material related to the Software. Customer shall not obscure, alter, or remove any notice of copyright, trademark, or other Intellectual Property Right designation appearing on or contained within the Services.
- 2 Continuous Development. The customer acknowledges that Emailwish may continually develop, deliver, and provide to Customer ongoing innovation to the Software in the form of new features, functionality, and efficiencies. Accordingly, Emailwish reserves the right to modify the Services, or any Software, from time to time. Some modifications will be provided to the Customer at no additional charge. In the event Emailwish adds additional functionality to a particular Service, Emailwish may condition the implementation of such modifications on Customer’s payment of additional fees, provided that Customer may continue to use the version of the Software that Emailwish makes generally available (without such features) without paying additional fees.
- 3 Feedback. In the event that Customer elects, in connection with any of the Services, to communicate to Emailwish, either directly or through an applicable Authorized Reseller, any comments and suggestions for improvements to the Services, whether written or oral (collectively, the “Feedback“), Emailwish, in its sole discretion, shall be entitled to use the Feedback without restriction, and such Feedback will not be treated as confidential to Customer. Customer hereby grants Emailwish, on behalf of itself and its Authorized Users, a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Emailwish products and services.
- FEES AND EXPENSES; PAYMENTS
- 1 Fee Generally. In consideration for the Services, Customer will pay to Emailwish(or the applicable Authorized Reseller) the then-current fees set forth in the “Account” section of Customer’s account in the Software unless otherwise set forth in an applicable Service Order(s) (“Fees“). Emailwish shall be entitled to withhold performance and suspend or discontinue the Services until all amounts due are paid in full.
- 2 SMS and MMS Services. Customers who elect to use Emailwish’s SMS and/or MMS Services (“SMS/MMS Services“) will make advance payments that will be deposited into an account created for the Customer (“SMS/MMS Account“) and Emailwish shall debit the Customer’s SMS/MMS Account for the SMS/MMS Services used each month. Advance payments made by Customer and deposited into an SMS/MMS Account must be used within twelve (12) months of the deposit date or they will be forfeited by the Customer.
- 3 Fee Increases. Emailwish or Authorized Reseller will provide Customer fourteen (14) days advance notice for any increase in fees. Any increases to the Fees shall apply at the beginning of the Customer’s following Term. Customer’s continued use of the Services after a Fee increase will constitute Customer’s agreement to the increase in Fees.
- 4 Billing, Invoicing, and Payment Terms. Emailwish will charge Customer the Fees for the Services in advance for each billing period on or after the first day of such billing period. All Fees for Services are due and payable in US Dollars and are non-refundable. If Customer is paying by credit card or eCheck, (a) Customer hereby irrevocably authorizes Emailwish, or if applicable, the Authorized Reseller, to charge the credit card or other payment method provided for any such amounts when due, (b) amounts due will be automatically charged, (c) if Customer’s credit card is declined, Emailwish, or if applicable, the Authorized Reseller, will attempt to reach out to Customer for a new payment method, and (d) if Customer’s credit card expires, Customer hereby gives Emailwish, or if applicable, the Authorized Reseller, permission to submit the credit card charge with a later expiration date. If Emailwish or, if applicable, an Authorized Reseller, fail to resolve an issue with Customer resulting from a credit card decline or expiration, Emailwish may terminate the account due to non-payment. All billing disputes must be emailed to success@Emailwish.com within fourteen (14) days of delivery of the billing statement or invoice, and disputes not made within that time are waived by the Customer. Late payments, including those resulting from credit card declines, will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by applicable law, whichever is lower. If Emailwish, or if applicable, the Authorized Reseller, must initiate a collections process to recover Fees due and payable hereunder, then Emailwish, or if applicable, the Authorized Reseller shall be entitled to recover from Customer all costs associated with such collections efforts, including but not limited to reasonable attorneys’ fees. In the event Emailwish, or if applicable, the Authorized Reseller, delivers to Customer an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due within thirty (30) days of the date of such invoice.
- 5 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and the Customer will be responsible for payment of all such taxes (other than taxes based on Emailwish’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees, the delivery of the Services, or the licensing of the Software to Customer. To the extent that Emailwish charges any of the aforementioned taxes, they are calculated using the tax rates that apply based on the billing address provided by Customer. Such amounts are in addition to the Fees and will be billed to Customer’s authorized payment method. If Customer is exempt from payment of any such taxes, Customer must provide Emailwish with evidence of exemption. If Customer is not charged any of the aforementioned taxes by Emailwish, Customer is responsible for determining if taxes are payable, and if so, self-remitting such taxes to the appropriate tax authorities in Customer’s jurisdiction. Customer will make all payments of Fees to Emailwish free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of Fees to Emailwish will be Customer’s sole responsibility, and Customer will provide Emailwish with official receipts issued by the appropriate taxing authority, or such other evidence as Emailwish may reasonably request, to establish that such taxes have been paid. Customer shall indemnify, defend, and hold Emailwish harmless in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
- 6 Expenses.If pre-approved by Customer in a Service Order, Customer shall reimburse Emailwish for reasonable out-of-pocket expenses (including travel and living) incurred in performing its obligations for specific Services under such Service Order. All costs and expenses incurred by Customer in connection with this Agreement are the sole responsibility of Customer.
- 7 Audit. Emailwish may audit Customer’s records relating to its use of the Services to verify Customer’s compliance with the terms of this Agreement. Emailwish will give Customer at least ten (10) days’ advance notice of any such audit and will conduct the same during normal business hours in a manner that does not unreasonably interfere with Customer’s normal operations. If any such audit should disclose any underpayment of Fees, Customer shall promptly pay Emailwish such underpaid amount, together with interest thereon, at the rate specified in Section 6.4. If the amount of such underpayment exceeds five percent (5%) of Fees actually paid during the audited period, the Customer shall also pay Emailwish for Emailwish’s reasonable expenses associated with such audit.
- CUSTOMER DATA AND RESPONSIBILITIES
- 1 Customer Data. The Customer Data hosted by Emailwish as part of the Services, and all worldwide Intellectual Property Rights therein, is, as between Emailwish and Customer, the exclusive property of Customer. Customer grants Emailwish a non-exclusive, sublicensable, transferable, worldwide, royalty-free, and fully-paid license to use the Customer Data as necessary for purposes of providing the Services and enabling the operation of the Software. Customer warrants that Customer is the owner or legal custodian of, or otherwise has the right to provide to Emailwish, Customer Data transmitted via the Services and has the full authority to transmit and store the Customer Data through the Services. Notwithstanding anything to the contrary herein, Emailwish, as a part of the Services, shall have the right to collect and analyze aggregated data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (“Aggregated Data“), and Emailwish shall be free (during and after the term of this Agreement) to (a) use Aggregated Data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other Emailwish offerings, and (b) disclose Aggregated Data solely in aggregate or another de-identified form in connection with its business.
- 2 End Customer Data. In connection with Emailwish’s performance of the Services, Emailwish may collect End Customer Data. Customer acknowledges that such End Customer Data may include non-personal information and Customer Personal Data (as defined in the Data Protection Addendum) of Customer’s customers as well as data relating to End Customer Communications. Emailwish will not retain, use or disclose such End Customer Data for any purpose other than to provide the Services to Customer, to improve the Services generally, or as otherwise directed by Customer, provided, however, that Emailwish may create and derive from processing related to the Services anonymized and/or aggregated data that does not identify any Customer or End Customer, and use, publicize or share with third parties such data for Emailwish’s legitimate business purposes. If Customer cancels its account with Emailwish or becomes inactive due to unpaid past-due amounts, Emailwish may delete all End Customer Data after a period of two (2) months. Emailwish will provide Customers with self-service functionality that enables Customers to export, correct, and delete End Customer Data associated with a specific email address. The customer acknowledges and agrees that if the Customer requires further assistance in addition to the self-service functionality described in this Section 7.2 Customer shall reimburse Emailwish for such assistance at Emailwish’s then-current professional services rates, which shall be made available to Customer upon request. The customer agrees that it may be necessary for Emailwish to access End Customer Data to respond to the Customer’s request for assistance with any technical problems and/or queries, and all such access will be logged by the Services. The customer shall hold Emailwish, its subcontractors, suppliers, and licensors harmless from any and all data protection claims relating to such access. Emailwish may transfer End Customer Data to its successor or acquirer in a merger, acquisition or other consolidation, including without limitation the sale of all or substantially all of Emailwish’s stock or assets or business to which this Agreement applies.
- 3 Customer Personal Data. Emailwish shall collect, use, disclose and otherwise process Customer Personal Data, and safeguard the privacy, confidentiality, and security of Customer Personal Data in accordance with the requirements set forth in the Data Protection Addendum, which is hereby incorporated into this Agreement by reference.
- 4 Customer Responsibilities for Data and Security. Customer and it’s Authorized Users shall have access to the Customer Data and shall be responsible for all changes to and/or deletions of Customer Data and the security of all passwords and other Access Protocols required in order to access the Software. Customers shall have the ability to export Customer Data out of the Software and are encouraged to make its own back-ups of the Customer Data. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data, and for the adequate security, protection, and backup of Customer’s Data on Customer’s equipment. The customer understands that the Services may store and backup files that are no longer usable due to corruption from viruses, software malfunctions, and other causes, which might result in the Customer restoring files that are no longer usable. Emailwish will have no liability to Customer for any unauthorized access to or use, alteration, corruption, deletion, destruction, or loss of any Customer Data on Customer’s equipment.
- 5 Compliance with Applicable Laws.
- (a) General.With respect to End Customer Communications and Customer Marketing Content, Customer shall be responsible for compliance with all applicable United States Federal and State, local, and foreign laws and regulations, including but not limited to (i) any applicable laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, and the sending of electronic marketing messages, including the Telephone Consumer Protection Act (the “TCPA“), the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM“), the Children’s Online Privacy Protection Act, and the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (“HIPAA“), and the sending of SMS and/or MMS text messages (including but not limited to the TCPA, Federal Trade Commission and Federal Communications Commission rules, the National DNC list registry rules, and various state laws, rules, and regulations that place restrictions on certain types of phone calls and text messages); and (ii) laws and regulations that apply to commerce, including the Federal Trade Commission Act, Fair Credit Reporting Act, and Equal Credit Opportunity Act.
- (b) Responsibility for Messages. For the avoidance of doubt, the Customer is solely responsible for the information or content submitted, posted, transmitted, or made available through the Customer’s use of the Services. Customer shall comply with all applicable laws and regulations relating to the sending of emails and/or text messages (“Messages“) and the protection and privacy of End Customer Data. The customer acknowledges and agrees that Emailwish does not control nor does it monitor Customer’s Messages nor guarantees the accuracy, integrity, security, or quality of such Messages. Customer represents and warrants that: (a) Customer is solely responsible for Messages; (b) Customer has the legal right to use and send all Messages; (c) the timing and purpose of all Messages, campaigns, and programs are in compliance with all applicable laws, rules and regulations; and (d) Emailwish’s use of the Messages as directed for the purpose of delivering the Services shall not violate the rights of any third party or any laws, rules or regulations. With respect to email communications sent on Customer’s behalf, Emailwish and/or its respective affiliates or third-party service providers shall be an initiator but not a sender for purposes of CAN-SPAM and Customer shall be deemed the sender of such messages and shall be solely responsible for complying with Customer’s obligations as a sender. With respect to text message communications sent on Customer’s behalf, Emailwish and/or its respective affiliates or third-party service providers shall be a provider but not a maker or initiator for purposes of the TCPA and Customer shall be deemed the maker or initiator of such messages and shall be solely responsible for complying with Customer’s obligations as a maker or initiator. The customer agrees to only send permission-based Messages in connection with its use of the Services. “Permission-based” means that all recipients must have opted-in to receive messages from Customers.
- (c) Consent.In addition, Customer represents and warrants that Customer has obtained and/or will obtain prior express consent to contact each wireless phone number Customer has delivered to and/or will deliver to Emailwish (the “Recipient“) in connection with the provision of any Services and the intended Recipient is the current subscriber to, or the non-subscriber customary user of, the wireless phone number. If the Messages are initiated to induce the purchase of goods or services or to solicit a charitable contribution (“Solicitations“), Customer represents and warrants that: (a) Customer has incorporated an interactive opt-out mechanism; and (b) Customer has, unless an exemption applies, obtained from the Recipient of any Solicitation, an express written agreement that meets the requirements set forth in Section 310.4(b)(1)(v)(A) of the FTC’s Telemarketing Sales Rule and Section 64.1200(f)(8) of the FCC’s Telephone Consumer Protection Act Rules. Upon request, Customer shall provide reasonable proof of compliance with the provisions set forth in this Section and Emailwish shall have no obligation to provide Services where Emailwish reasonably believes that Customer has not so complied.
- REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
- 1 Mutual Representation and Warranties. Emailwish and Customer each represent and warrants that: (i) it has full corporate right, power, and authority to enter into this Agreement; (ii) the execution of this Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or is otherwise bound; (iii) it shall comply with all applicable federal, state, local, and foreign laws and regulations.
- 3 Limited Warranty.Emailwish warrants solely to Customer that the Software, when used in accordance with the terms of this Agreement, will function substantially in accordance with the Documentation during the term of this Agreement. The foregoing warranty shall not apply to performance issues of the Software or Services resulting from (i) content provided by or passed through Customer or third parties in connection with the Services (including Customer Data and End Customer Data); (ii) Customer’s data structures, operating environment, equipment or other technology; (iii) the use or combination of the Software or the Services with any other software or hardware not supported by Emailwish; (iv) causes external to the Software or Services, such as problems with the hardware, network or other infrastructure with which the Software or Services are used; (v) unauthorized or improper use of the Software or Services; (vi) any modification of the Software or Services by Customer or its Authorized Users; or (vii) third party components incorporated into the Services, including open-source software. Provided that Customer notifies Emailwish in writing of any breach of the foregoing warranty during the term of this Agreement, Emailwish shall, as Customer’s sole and exclusive remedy, use commercially reasonable efforts to correct such non-conformance.
- 4 Disclaimer. THE LIMITED WARRANTY SET FORTH IN SECTION 8.3 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.3 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES (INCLUDING THE SOFTWARE AND DOCUMENTATION) ARE PROVIDED “AS IS,” AND Emailwish MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY Emailwish, AND ANY OFFERS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, Emailwish DOES NOT WARRANT THAT THE SOFTWARE OR THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR BE ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
- 5 Authorized Reseller Warranties. Notwithstanding anything in this Agreement to the contrary, the warranties provided by Emailwish hereunder with respect to the Software or the Services may not be extended, supplemented or modified by an Authorized Reseller, and if an Authorized Reseller makes any additional warranty, representation or commitment regarding the Software or the Services (or modifies an existing warranty, representation or commitment granted by Emailwish regarding the Software or the Services), the Authorized Reseller shall be solely responsible for any such additional warranties, representations or commitments or modifications.
- LIMITATION OF LIABILITY
- 1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Emailwish, NOR ANY OF ITS AFFILIATES, SUBCONTRACTORS, LICENSORS, VENDORS, SUPPLIERS OR RESELLERS, NOR ANY OF ITS THIRD PARTY PARTNERS, BE LIABLE TO CUSTOMER OR ANY OTHER THIRD PARTY FOR LOST REVENUES, LOST PROFITS OR OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES ARISING FROM CUSTOMER’S OR ANY OTHER THIRD PARTY’S USE OF OR INABILITY TO USE THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOSS OF TECHNOLOGY, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE DAMAGES WHETHER OR NOT Emailwish HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. THE MAXIMUM AGGREGATE LIABILITY OF Emailwish, ITS LICENSORS, VENDORS, AND RESELLERS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), SHALL NOT EXCEED THE ACTUAL FEES PAID BY CUSTOMER FOR THE SERVICE FOR THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER, LESS ANY DAMAGES PREVIOUSLY PAID BY Emailwish TO YOU IN THAT SIX (6) MONTH PERIOD.
- 2 Partner Services. Furthermore and notwithstanding anything herein to the contrary, Customer acknowledges and agrees that: (i) any Services (“Partner Services“) provided by, through or in partnership with an Authorized Reseller or any other third-party partner of Emailwish (“Partners“) ARE PROVIDED TO CUSTOMER “AS IS,” WITHOUT WARRANTY OF ANY KIND. Emailwish HEREBY DISCLAIMS ON BEHALF OF THE PARTNERS ALL OTHER WARRANTIES WITH RESPECT TO SUCH PARTNER SERVICES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NO PARTNER SHALL HAVE ANY LIABILITY TO CUSTOMER OTHER THAN AS MAY BE SET FORTH IN THE PARTNER’S STANDARD TERMS AND CONDITIONS FOR THE PARTNER SERVICES, (ii) each Partner is hereby granted a limited license to use any content supplied by Customer in connection with the Partner Services (“Partner Marketing Content“), with the right to sublicense to its partners in connection with the operation of the Partner Services, provided that Partner and its publisher partners shall not provide any third party with access to Partner Marketing Content nor use Partner Marketing Content for its or their own commercial benefit beyond the provision of the Partner Services; (iii) at Customer’s request, reasonable efforts will be used by the Partners to remove from publication any Customer Marketing Content, but in no event will a Partner or its publisher partners have any liability if such Customer Marketing Content nonetheless continues to be published; (iv) Customer will cooperate to provide Emailwish with all information reasonably required by a Partner to provide any Partner Services; (v) each Partner is an intended third party beneficiary of this Section 9.3; and (vi) the terms and conditions of all Partner Services shall be subject to the Partner’s standard end user terms and conditions for such Services.
- 3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this Section 9 shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the Fees have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- 1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party“) may provide the other party (the “Receiving Party“) with certain information regarding the Disclosing Party’s business, technology, products, or services, or other confidential or proprietary information (collectively, “Confidential Information“) in whatever form (written, oral or visual) that is furnished or made available to the Receiving Party by or on behalf of the Disclosing Party that (a) if, in a tangible form, the Disclosing Party has labeled in writing as proprietary or confidential, (b) if, in oral or visual form, the Disclosing Party has identified as proprietary or confidential at the time of disclosure, or (c) is of a character that is commonly and reasonably regarded as confidential and/or proprietary. For the avoidance of doubt, the Software, Documentation, and all enhancements and improvements thereto, will be considered Confidential Information of Emailwish.
- 2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except for exercising its rights and performing its obligations under this Agreement. The Receiving Party will limit access to the Confidential Information to its employees and contractors who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and, upon request, the Receiving Party shall provide to the Disclosing Party written notice certifying compliance with this sentence, unless prohibited by applicable law.
- 3 Exceptions. The confidentiality obligations set forth in this section will not apply to any information that: (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) the Receiving Party can prove, by clear and convincing evidence, was already known to the Receiving Party without restriction at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
- 1 By Emailwish.Emailwish will defend at its expense any suit brought against Customer and will pay any settlement Emailwish makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Software infringes or misappropriates any U.S. Intellectual Property Rights. If any portion of the Software becomes, or in Emailwish’s opinion is likely to become, the subject of a claim of infringement, Emailwish may, at Emailwish’s option: (a) procure for Customer the right to continue using the Software; (b) replace the Software with non-infringing software which does not materially impair the functionality of the Software; (c) modify the Software so that it becomes non-infringing, or (d) terminate this Agreement and refund to Customer the pro-rated portion of any prepaid fees attributable to any unused Services, and upon such termination, Customer will immediately cease all use of the Services. Notwithstanding the foregoing, Emailwish shall have no obligation under this Section or otherwise with respect to any infringement claim based upon (v) the Customer Data (w) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (x) any use of the Services in combination with other products, equipment, software or data not supplied by Emailwish; (y) any modification of the Software by any person other than Emailwish or its authorized agents; (z) modification of the Software based upon specifications furnished by Customer (any of the foregoing circumstances under clauses (v) through (z) will be collectively referred to as a “Customer Indemnity Responsibility“). Section 11.1 states the sole and exclusive remedy of Customer and the entire liability of Emailwish, or any of the officers, directors, employees, shareholders, contractors, or representatives of the foregoing, for third party claims and actions described in this Section 11.1.
- 2 By Customer. Customer will indemnify, defend and hold Emailwish, its officers, directors, affiliates, subsidiaries, licensors, agents, and employees (each an “Emailwish Party“) harmless from and against any and all losses, damages, liability, costs, and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs arising out of or relating to: (a) a Customer Indemnity Responsibility; or (b) Customer’s breach or alleged breach of any representation, warranty or obligation under the Agreement, or any violation of law; (c) claims relating to the Offers or the fulfillment thereof (including claims by purchasers or other Customers of the Offers on the Service relating to Customer’s products or services); or (iv) the use, transmission, access, disclosure, or other processing of Customer Data.
- 3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit, and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
- TERM AND TERMINATION
- 1 Term. Unless otherwise specified on an applicable Service Order, this Agreement commences on Customer’s registration for an account and shall continue in effect for thirty (30) days (the “Initial Term“). Thereafter, and unless otherwise specified in a Service Order, this Agreement and each applicable Service Order shall automatically renew for successive thirty (30) day terms (each a “Renewal Term“), unless either party provides notice to the other of its intention not to renew at least fifteen (15) days prior to the expiration of the Initial Term or the then-current Renewal Term. Notification of such non-renewal from Customer to Emailwish must be emailed to success@Emailwish.com, which must be confirmed by Emailwish. If Customer chooses not to renew, Customer must fully notify Emailwish in writing at least fifteen (15) days prior to the expiration of the Initial Term or the then-current Renewal Term, in which case, Customer will continue to have access to the Services and be billed until the end of the then-current term. The customer shall not receive a refund for any unused portion of the Term. In the case Customer fails to fully notify Emailwish of its intent not to renew within this time, the Renewal Term will commence at the end of the then-current term and Customer is responsible for the payment of fees for the Services rendered for that Renewal Term. Customer shall not, in any event, be entitled to any refund of any Fees previously paid to Emailwish for Services. The Initial Term and all Renewal Terms will collectively be referred to as the “Term“.
- 2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. Emailwish may terminate this Agreement at any time without cause and without notice. In addition, Emailwish may terminate this Agreement upon written notice to Customer (or upon written notice provided to an Authorized Reseller and then passed along by an Authorized Reseller to a Customer) if (a) Customer becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, or liquidation for the benefit of creditors or (b) in the event of non-payment in accordance with Section 6.4. Upon termination by Emailwish without cause, the Customer may be entitled to a pro-rata refund of any pre-paid and unused Fees advanced to Emailwish.
- 3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate (except that all payment obligations accrued prior to termination or expiration shall survive); and (b) within thirty (30) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in Section 10.2. All liabilities accrued under this Agreement prior to the effective date of termination and the following Sections will survive expiration or termination of this Agreement for any reason: 1, 2, 3.3, 3.4, 3.5, 4.3, 4.5, 5, 6, 7.4, 7.5, 8.4, 8.5, 9, 10, 11, 12.3, 12.4, 13 and 14.
- 4 Data Deletion, Preservation, Retrieval, or Transfer.
- (a)In the event of a temporary suspension of Customer’s access to Services, (i) Emailwish will not take any action to intentionally erase or delete Customer Data stored on the Services; and (ii) applicable Fees will continue to accrue. In the event Customer becomes inactive due to past-due amounts, Customer agrees that Emailwish may delete all End Customer Data after a period of sixty (60) days. In the event of the expiration or earlier termination of this Agreement, Customer may, upon reasonable notice to Emailwish, elect to retrieve Customer Data using the self-service tools Emailwish makes available to Customer. If this Agreement is terminated for any reason other than Customer’s breach, Emailwish will not take any action to intentionally erase or delete Customer Data stored on the Services for a period of sixty (60) days, after which Emailwish may delete the End Customer Data. If this Agreement is terminated on account of Customer’s breach or alleged breach of these this Agreement, Emailwish will not take any action to intentionally erase or delete Customer Data stored on the Services for a period of fifteen (15) days, or for sixty (60) days with respect to customer Communications as discussed above, after which Emailwish may delete End Customer Data, unless required by applicable law. In each case, Customer’s post-termination retrieval or transfer of Customer Data will be conditioned on Emailwish’s receipt of all applicable Fees for the period following termination, payment in full of any other amounts owed, and Customer’s compliance with such reasonable terms and conditions as Emailwish may establish with respect to such retrieval or transfer. In addition, if the Customer utilizes the professional services of Emailwish to assist the Customer in connection with such retrieval or transfer, the Customer will be responsible for Emailwish’s then-current charges for such professional services. In the event that Emailwish does not receive all such Fees and amounts due within the applicable time periods described above, or in the event that Customer fails to notify Emailwish of Customer’s election with respect to the retrieval or transfer of Customer Data within such period, Emailwish shall have no obligation to continue to store Customer Data or permits Customer to retrieve or transfer the same.
- (b)Emailwish will respond to requests to transfer or delete End Customer Data only to the extent such requests are addressed to Emailwish from an email address from the email domain that is the same as the domain associated with Customer’s Emailwish To the extent the request does not originate from the specific email address associated with Customer’s Emailwish account (the “Authorized Email“), Emailwish will notify Customer of the request at the Authorized Email, and Emailwish will deem such request valid unless it receives a response within 5 business days from the Authorized Email objecting to the request. Emailwish will deem valid any request addressed to Emailwish from the Authorized Email, and Customer is solely responsible for the validity of all requests or communications addressed to Emailwish from the Authorized Email.
- DIGITAL MILLENNIUM COPYRIGHT ACT; TAKEDOWN NOTICE AND PROCEDURES
It is Emailwish’s policy to respond to notices alleging that any material uploaded by users of the Services or the Software infringes another person’s copyright. If you believe any material accessible on or from the Emailwish website or the Services infringes your copyright, you may request removal of those materials (or access thereto) from this website by contacting the Emailwish copyright agent (identified below) and providing the following information:
- (a)Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (URL) of an authorized version of the work.
- (b)Identification of the material that you believe to be infringing and its location. Please describe the material and provide us with its URL or any other pertinent information that will allow us to locate the material.
- (c)Your name, address, telephone number and (if available) email address.
- (d)A statement that you have a good faith belief that the use of the materials is not authorized by the copyright owner, its agent, or the law.
- (e)A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- (f)A signature or the electronic equivalent from the copyright holder or authorized representative.
Our agent for copyright issues relating to the Emailwish website or Services is:
125 Summer Street
Boston, Massachusetts 02111
For all email submissions please include the subject line: DMCA Takedown Request.
Emailwish has adopted a policy of terminating, in appropriate circumstances, accounts of users of the Services or Software who are deemed to have repeatedly uploaded content that infringes the intellectual property rights of others.
14.1 Marketing. Customer agrees that Emailwish may refer to Customer by name and trademark in Emailwish’s marketing materials and website. Customer acknowledges and agrees that Emailwish does not certify or endorse, and has no obligation to certify or endorse, any of Customer’s products, services, or content.
14.2 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Massachusetts, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts located in Boston, Massachusetts for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer may not bring any suit or action against Emailwish for any reason whatsoever more than one (1) year after the cause of action accrued.
14.3 Export. Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Emailwish, or any products utilizing such data, in violation of the United States export laws or regulations.
14.4 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
14.5 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
14.6 Remedies. Customer acknowledges that the Services contain valuable trade secrets and proprietary information of Emailwish and that any actual or threatened breach by Customer of its obligations with respect to Intellectual Property Rights of Emailwish will constitute immediate, irreparable harm to Emailwish for which monetary damages would be an inadequate remedy. In such a case, Emailwish will be entitled to seek immediate injunctive relief without the requirement of posting a bond.
14.7 No Assignment. Customer may not assign its rights or delegate any obligations hereunder without the express prior written consent of Emailwish. Any assignment by Customer without the prior written consent of Emailwish shall be null and void. Emailwish may assign its rights or obligations hereunder without notice or consent; provided, however, that the Services shall continue to operate as specified in this Agreement. This Agreement shall inure to the benefit of each party’s permitted successors and assigns.
14.8 Force Majeure. Without limiting any other provision in the Agreement, Emailwish, or any Emailwish Party, is not responsible or liable to any Customer for delay or failure to perform its obligations hereunder in the event that any of Emailwish or Emailwish Parties’ operations or activities are affected by any cause or event beyond the sole and reasonable control of the applicable Emailwish Party (as determined by such party in its sole discretion), including, without limitation, by reason of any acts of God, equipment failure, threatened or actual terrorist acts, air raid, act of public enemy, war (declared or undeclared), civil disturbance, insurrection, riot, epidemic, pandemic, fire, explosion, earthquake, flood, hurricane, unusually severe weather, blackout, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slowdown, any law, rule, regulation, action, order, or request adopted, taken, or made by any governmental or quasi-governmental entity (whether or not such governmental act proves to be invalid), or any other cause, whether or not specifically mentioned above.
14.9 Independent Contractors. The customer’s relationship to Emailwish is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.
14.10 Notices. Where Emailwish requires you to provide an email address, you are responsible for providing Emailwish with your most current email address. In the event that the last email address you provided to Emailwish is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Emailwish’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Emailwish at the following email address: legal@Emailwish.com. Notice shall be deemed to have been duly given on the first business day following successful email transmission to Emailwish.
14.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
14.13 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Services, please contact us at success@Emailwish.com. We will do our best to address your concerns.
Previous Version: December 30, 2019