|This Delivery Watch Subscription- Agreement (the "Agreement") is a legal contract between you and emarsys eMarketing Systems AG, ("Delivery Watch"). The Agreement governs your purchase and use of the various e-mail deliverability measurements services, whether fee-based or free of charge, offered on Delivery Watch's website (each a "Service"). Your use of the Services is conditioned on your acceptance of this Agreement. By checking the acceptance box on Delivery Watch's website, you accept and agree to be bound by all the terms and conditions of this Agreement, as well as any additional terms specific to the particular Services for which you register. Since this is a binding legal agreement between you and Delivery Watch, please print a copy of this Agreement for your records.
1. THE SERVICES
Delivery Watch will provide you with the Services for which you register on Delivery Watch's website, subject to the terms and conditions of this Agreement. You acknowledge that the Services may be offered in various separately priced service levels or packages ("Service Plans"), and you will only receive the Service Plans that you have registered for, and for which you are paying all associated fees. Descriptions of each Service, and the various Service Plans that are available for each Service, are available on Delivery Watch's website.
You may upgrade to a higher service, if available, at any time during the term of this Agreement by completing and submitting Delivery Watch' then-current upgrade request form. Upon any such upgrade, Delivery Watch will terminate your previous Service Plan, refund you any excess payment for termination prior to completing the billing cycle and start the new Service Plan with a new billing cycle to which you agree to pay the increased fees for that service in accordance with this Agreement. Delivery Watch reserves the right to modify, enhance, or supplement the Services at any time in its sole discretion, provided that those modifications do not adversely affect your rights or obligations under this Agreement.
2. REGISTRATION PROCESS
3. YOUR PROMISES AND OBLIGATIONS
AS A CONDITION OF RECEIVING ANY SERVICES, YOU PROMISE, REPRESENT, AND WARRANT THE FOLLOWING.
Without limiting its other remedies, Delivery Watch may refuse or cancel your account or Services at any time for any violation of the foregoing promises. To assure compliance with the criteria in Subsection (b) above, Delivery Watch reserves the right to monitor the content of the web pages or sites that correspond to the URLs in the emails you test and track using the Service.
- All of the registration information you supply to Delivery Watch is true, complete, and accurate, and you will notify Delivery Watch of any changes to your registration data during the term of this Agreement and submit updated information within twenty (20) days of any such changes;
- None of the e-mails you test and track using the Service link to any web page or site that contains any:
- nudity, pornography, online dating, beauty contests or other sexual or adult material;
- hate propaganda or material that encourages or promotes illegal activity or violence;
- content that violates or infringes in any way upon any applicable law, or proprietary rights of others, including but not limited to copyrights, trademark rights, patents, or any other third party intellectual property, contract, privacy, or publicity rights;
- material that promotes or utilizes software or services designed to deliver unsolicited email;
- material that violates any applicable laws or regulation;
- misrepresentations or material that is threatening, abusive, harassing, defamatory, obscene, profane, indecent, or otherwise objectionable, offensive, or harmful; or
- other material that Delivery Watch, in its sole discretion, deems inappropriate, including any violations of standards posted on Delivery Watch's website or sent to you by email;
- You will safeguard your account user name and password by not disclosing your password to any third party, and you will assume responsibility for any and all harm or liability attributable to you or any other person accessing your account or any Services with your user name and password, provided that such use is attributable to you;
- You will not copy, sell, redistribute, license, sublicense, or otherwise transfer your account, or any materials provided to you in connection with the Services, to any third party without Delivery Watch's written consent;
- You will comply with all laws and regulations governing your actions under this Agreement, especially laws and regulations regarding unsolicited email; and
- You have full power and authority to enter into this Agreement and to perform your obligations hereunder.
You agree to pay Delivery Watch any set-up fees and recurring subscription fees listed on Delivery Watch's website for the service you select. Completion and submission of any Service activation form authorizes Delivery Watch to charge the credit card or bank account specified in your registration for all such fees and any related taxes corresponding to the selected Service. Such charges will be made on a monthly or yearly basis. In order to avoid the full fee for any new subscription period, you must cancel the Service 7 (seven) working days BEFORE the new period begins. Cancellation must be in writing (postal or electronic mail). The cancellation is valid only upon receipt by Delivery Watch. Delivery Watch will send an e-mail confirming the cancellation.
Any failure to pay the amounts due under this Agreement will be a material breach of your obligations under this Agreement. Without limiting any other remedies available to Delivery Watch, YOU AGREE TO FULLY REIMBURSE Delivery Watch FOR ANY COSTS AND EXPENSES THAT Delivery Watch MAY INCUR IN CONNECTION WITH COLLECTING OR ATTEMPTING TO COLLECT ANY SUCH UNPAID AMOUNTS.
5. PRICING CHANGES AND OTHER MODIFICATIONS
The Delivery Watch services are based on a set of usage limitations (e.g. number of emails tested, number of mail servers monitored, etc.) for each part of the Service per month. Delivery Watch may change its Service fees, or any other terms of this Agreement, at any time by updating the applicable pricing information or other terms posted on Delivery Watch's website and informing you by e-mail about the changes. New pricing terms will become effective beginning with the first full billing cycle after Delivery Watch posts such changes to its website. Changes to terms not related to pricing will become effective fifteen (15) days after such notification. If you do not agree to any changes posted by Delivery Watch in accordance with this Section, you must cancel your account or the affected Service as provided herein before the given changes become effective; Delivery Watch will inform you about this right to cancel the account in the e-mail by which the changes are notified. If you do not cancel your account in accordance with the aforesaid you will be deemed to have accepted and agreed to the changes.
No failure by Delivery Watch to enforce any term of this Agreement shall be construed as a waiver thereof, nor shall it affect your obligations or Delivery Watch's rights and remedies hereunder.
6. DURATION AND CANCELLATION OF SERVICES
Unless stated otherwise on Delivery Watch's web pages applicable to a given Service, each Service, depending on the payment plan selected, will be provided and billed on a monthly or yearly subscription basis, measured from the beginning of the exact day of activation of the given Service. Subscriptions will automatically renew with each monthly or annual period, as applicable, until cancelled in accordance with this section. At any time after activation of a Service, either you or Delivery Watch may cancel that Service (or Delivery Watch may discontinue the Service completely) by providing written notice to the other party, in which case the Service will terminate on the date specified in the cancellation notice. If no date is specified, the Service will terminate at the end of the then-current billing period (for paid Services) or calendar month (for free Services).
Delivery Watch also reserves the right to cancel any individual Service immediately and without prior notice in the event that you materially breach any provision of this Agreement or any other terms that apply to that Service. NO REFUNDS WILL BE AVAILABLE ON ACCOUNT OF ANY SERVICE CANCELLATION BY EITHER PARTY, EXCEPT AS EXPRESSLY PROVIDED IN THE SECTION ENTITLED "REFUNDS" BELOW.
7. TERM AND TERMINATION OF AGREEMENT
The term of this Agreement will begin on the date that Delivery Watch accepts your initial registration and will continue in force until terminated according to this section. Upon cancellation of all active Services, or any time thereafter, either party may terminate your account and this Agreement by written notice to the other party. Termination must be in writing (postal or electronic mail). The termination is valid only upon receipt by the other party. In case of termination by the customer Delivery Watch will send an e-mail confirming the termination.
Delivery Watch also reserves the right to terminate your account and this Agreement immediately and without notice in the event that you materially breach any provision of this Agreement. No refunds will be available on account of any termination of this Agreement, except as expressly provided in the Section entitled "Refunds" below. Sections 10 through 15 of this Agreement shall survive and remain in effect notwithstanding any termination of this Agreement. If this agreement is terminated by us or by you for any reason, you agree to remove all seed list e-mail addresses (paying customers only) and any other parts of the Service from all of your mailing lists, address books, Web sites and other items.
If you cancel any Service you acknowledge and agree that NO REFUNDS WILL BE ISSUED. If Delivery Watch cancels any Service for other reasons than your breach of the Agreement, Delivery Watch will reimburse amounts already paid by you for the cancelled Service on a pro rata temporis base.
9. USE OF SEED LISTS
Some of the Services rely on the use of email seed lists or other email addresses in your mailing lists. Subject to your compliance with all the terms of this Agreement, Delivery Watch grants you permission to use the email seed lists or other email addresses supplied to you by Delivery Watch (the "Seed Emails") solely for your use in receiving the Services for which you have paid. You agree to follow all instructions and restrictions provided to you by Delivery Watch with respect to your use of the Seed Emails. You agree that Delivery Watch will not be responsible for any malfunctions, errors, data inaccuracies, or improper results attributable to your incorrect, unauthorized, or unsupported use of any Seed Emails.
10. OWNERSHIP RIGHTS
You agree and understand that the Services and all graphic designs, icons, Seed Emails, HTML code, computer programming, and other elements incorporated therein are the exclusive property of Delivery Watch. In addition, you acknowledge that Delivery Watch owns all right, title, and interest in and to Delivery Watch's trademarks, trade names, service marks, inventions, copyrights, trade secrets, patents, technology, software, and know-how related to the design, function, or operation of the Service. Your rights to the Services are strictly limited to the rights expressly granted in this Agreement.
11. DISCLAIMER OF WARRANTY
Delivery Watch makes no guarantees of any kind regarding the use or the results derived from any Services in terms of dependability, accuracy, security, timeliness, availability, reliability, or usefulness. The Services and all related materials are provided "AS IS" without warranty of any kind. Delivery Watch HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SERVICES AND RELATED MATERIALS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Delivery Watch DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES WILL BE SUITABLE FOR YOUR NEEDS OR YOUR INTENDED APPLICATIONS, OR THAT THE SERVICES WILL BE COMPATIBLE WITH OR OPERATE IN THE HARDWARE, SOFTWARE, OR WEBSITE CONFIGURATIONS THAT YOU SELECT.
12. LIMITATION OF LIABILITY
IN NO EVENT WILL Delivery Watch BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO LOSS OF INCOME, LOSS OR DAMAGE OF DATA, AND DAMAGE TO BUSINESS REPUTATION, UNDER ANY THEORY OF LAW OR EQUITY, AND WHETHER OR NOT Delivery Watch IS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHERMORE, IN NO EVENT WILL Delivery Watch's TOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT RECEIVED BY Delivery Watch FROM YOU UNDER THIS AGREEMENT. Without limiting the foregoing, Delivery Watch is not responsible for any of your data residing on Delivery Watch hardware. You are responsible for backing-up your data and information that may reside on the Delivery Watch hardware, whether or not such information is produced through the use of the Service.
The above limitations of liability shall not apply in regard to damages caused by fraudulent or willful actions or omissions by Delivery Watch, its officers, employees or agents or in regard to damages to life or health.
You agree to indemnify, hold harmless, and (at Delivery Watch request) defend Delivery Watch and its officers, directors, shareholders, and representatives from and against any and all liability, damages, losses, costs, or expenses (including but not limited to attorneys' fees and expenses) incurred in connection with any claim related to (a) your breach of any term, condition, representation, warranty, or covenant in this Agreement; or (b) the information you supply to Delivery Watch or make available to any third party, including your registration data and the content of the e-mails corresponding to the ones you submit to Delivery Watch for monitoring, tracking or testing. This obligation shall survive any termination of your relationship with Delivery Watch.
14. SOLE AND EXCLUSIVE REMEDY
If you are dissatisfied with any portion of any Service, your sole and exclusive remedy is to cancel your account or your subscription to the given Service according to this Agreement. No refunds are available.
15. GENERAL PROVISIONS
The laws of The Republic Of Austria govern this agreement. You hereby consent to the jurisdiction of and venue in courts located in Austria in all disputes arising out of or relating to this Agreement or your use of the Services. In addition, you hereby consent to the exclusive jurisdiction of, and venue in, such courts for any action commenced by you against Delivery Watch.
This Agreement, along with Delivery Watch's other terms, conditions, and policies referenced herein, constitutes the entire agreement between you and Delivery Watch with respect to the Services. If any part of this Agreement is held to be unenforceable, that part will be amended to achieve its intended effect as nearly as possible, and the remainder of the Agreement will remain in full force.
No party shall be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to circumstances beyond the party's reasonable control, including without limitation, acts of any governmental body or failure of the software or equipment of third parties.
Except as provided otherwise herein, any notice given under this Agreement will be made by email and will be effective on the business day after it is sent.
You may not assign this Agreement or any rights and obligations thereunder.
You acknowledge that your account is part of the Delivery Watch network, and, consequently, you will receive periodic announcements and information regarding Delivery Watch's services. You may request to be removed from the network's news mailing list at any time.
Delivery Watch may include your web site's domain name & logo on its customer lists, testimonials and press releases related to the Services. Additionally Delivery Watch may use the anonymous results of your Delivery Watch account for displaying aggregated benchmark reports on its website and within the Service.
17. SPECIAL REMARKS FOR UNSOLICITED USAGE
The following types of emails are NOT allowed to participate in the Service: (a) emails which promote illegal activity or racism, or which are libelous, defamatory, racist, hate-crime oriented, obscene, pornographic, abusive, harassing or threatening, (b) emails which contain viruses or other contaminating or destructive features, (c) emails which violate the rights of others, such as content which infringes any copyright, trademark, patent, trade secret or violates any right of privacy or publicity, (d) emails which provide instructions or discussions about performing illegal activities, (e) emails that are considered unsolicited (="Spam") by the applicable federal regulations regarding unsolicited emails, or (f) emails which otherwise violate any applicable law or that we otherwise deem to be inappropriate.
If you have any questions about this Agreement or Delivery Watch's Services, please contact Delivery Watch by email at email@example.com. Thank you for choosing Delivery Watch to measure your e-mail deliverability. We look forward to doing business with you and hope you find our services valuable.