Terms and Conditions

These Terms and Conditions (“Agreement”) supplement the Order and set forth the terms and conditions under which Mailshake LLC (“Mailshake”) will provide access to certain proprietary technology to you (“Customer”). The Agreement sets forth the terms and conditions under which Customer may Use (as defined herein) Mailshake’s software indicated on the Order (“Software”).

  1. LICENSE GRANT AND RIGHT OF USE
  1. License Grant. Subject to all limitations and restrictions contained herein and the Order, Mailshake grants Customer a subscription, software as a service (SaaS), nonexclusive and nontransferable right to use the Software as hosted by Mailshake as described in the Order (“Use”).
  2. Use. Customer shall not allow any website, that is not fully owned by Customer, to frame, syndicate, distribute, replicate, or copy any portion of Customer’s web site that provides direct or indirect access to the Software.
  3. Additional Restrictions. In no event shall Customer disassemble, decompile, or reverse engineer the Software or Confidential Information (as defined herein) or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (i) converting the Software from a machine-readable form into a human-readable form; (ii) disassembling or decompiling the Software by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (iii) examining the machine-readable object code that controls the Software’s operation and creating the original source code or any approximation thereof by, for example, studying the Software’s behavior in response to a variety of inputs; or (iv) performing any other activity related to the Software that could be construed to be reverse engineering, disassembling, or decompiling. To the extent any such activity may be permitted pursuant to written agreement, the results thereof shall be deemed Confidential Information subject to the requirements of this Agreement. Customer may use Mailshake’s Confidential Information solely in connection with the Software and pursuant to the terms of this Agreement.
  1. PAYMENT
  1. Fees. Customer shall pay Mailshake the fees indicated for the Software. The initial payment for the Software must be made on the Order Effective Date. Any late payment shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of one and one-half percent (1.5%) per month (prorated for partial periods) or at the maximum rate permitted by law, whichever is less.
  2. Taxes. The license, service fees, and other amounts required to be paid hereunder do not include any amount for taxes or levy (including interest and penalties). Customer shall reimburse Mailshake and hold Mailshake harmless for all sales, use, VAT, excise, property or other taxes or levies which Mailshake is required to collect or remit to applicable tax authorities. This provision does not apply to Mailshake’s income or franchise taxes, or any taxes for which Customer is exempt, provided Customer has furnished Mailshake with a valid tax exemption certificate.
  1. MAINTENANCE AND SUPPORT SERVICES
  1. Maintenance. Mailshake shall use commercially reasonable efforts to provide corrections to reported problems that (i) prevent the Software from conforming in material respects to its specifications, and (ii) are replicated and diagnosed by Mailshake as defects in the Software (“Maintenance and Support Services”). Mailshake shall use commercially reasonable efforts to begin working on a resolution to Customer’s written notice of reported problems within fourteen (14) days, provided corrections shall be prioritized in Mailshake reasonable discretion. A response is not a guaranty of a solution to the reported problem; however, Mailshake will keep Customer apprised of the resolution closure. Additional features and functions are not included as part of the maintenance and support services.
  2. Exclusions. Mailshake shall not be obligated to provide Maintenance and Support Services for any software other than the generally available Software delivered to Customer pursuant to this Agreement (collectively the “Unsupported Code”). Any Mailshake support services related to Unsupported Code shall be subject to execution of a mutually agreed upon assignment order issued under a professional services agreement.
  3. Third Parties. Mailshake shall have the right to use third parties, including employees of Mailshake’s affiliates and subsidiaries (“Subcontractors”) in performance of its obligations and services hereunder and, for purposes of this Section, all references to Mailshake or its employees shall be deemed to include such Subcontractors.
  1. OWNERSHIP
  1. Reservation of Rights.By signing the Order, Customer irrevocably acknowledges that, subject to the licenses granted herein, Customer has no ownership interest in the Software and/or Mailshake materials provided to Customer. Mailshake shall own all right, title, and interest in such Software and Mailshake materials, subject to any limitations associated with intellectual property rights of third parties. Mailshake reserves all rights not specifically granted herein.
  2. Data. Customer shall own all data collected through the Software including, but not limited to, user data (“Customer Data”). Nothing in this Agreement shall preclude Mailshake from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Mailshake in the performance of services hereunder.
  3. Suggestions/Improvements to Software. Notwithstanding this Section, unless otherwise expressly agreed in writing, all suggestions, solutions, improvements, corrections, and other contributions provided by Customer regarding the Software or other Mailshake materials provided to Customer shall be owned by Mailshake, and Customer hereby agrees to assign any such rights to Mailshake. Nothing in this Agreement shall preclude Mailshake from using in any manner or for any purpose it deems necessary, the know-how, techniques, or procedures acquired or used by Mailshake in the performance of services hereunder.
  1. WARRANTY
  1. Authorized Representative. Customer and Mailshake warrant that each has the right to enter into this Agreement and that the Agreement shall be executed by an authorized representative of each entity.
  2. Disclaimer of Warranties. Customer acknowledges and agrees that it is not relying on any statement or warranty not expressly provided herein with respect to the Software or maintenance, or other services provided hereunder. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS” AND MAILSHAKE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
  3. No Modifications. Notwithstanding anything to the contrary in this Section, any and all warranties under this Agreement are VOID if Customer has made changes to the Software or has permitted any changes to be made other than by or with the express, written approval of Mailshake.
  1. LIMITATION OF LIABILITY
  1. Liability Cap. IN NO EVENT SHALL MAILSHAKE BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE AMOUNT OF THE FEES PAID BY CUSTOMER FOR THE SOFTWARE WHICH GAVE RISE TO SUCH DAMAGES IN THE SIX (6) MONTHS PRIOR TO THE CLAIM AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
  2. Disclaimer of Damages. IN NO EVENT SHALL MAILSHAKE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
  1. TERM AND TERMINATION
  1. Termination by Mailshake. This Agreement and any license created hereunder may be terminated by Mailshake (i) if Customer fails to make any payments due hereunder within fifteen (15) days of the due date; (ii) on thirty (30) days written notice to Customer if Customer fails to perform any other material obligation required of it hereunder, and such failure is not cured within such thirty (30) day period; or (iii) Customer files a petition for bankruptcy or insolvency, has an involuntary petition filed against it, commences an action providing for relief under bankruptcy laws, files for the appointment of a receiver, or is adjudicated a bankrupt concern.
  2. Termination by Customer. This Agreement may be terminated by Customer on thirty (30) days written notice to Mailshake if Mailshake fails to perform any material obligation required of it hereunder, and such failure is not cured within thirty (30) days from Mailshake’s receipt of Customer’s notice or a longer period if Mailshake is working diligently towards a cure.
  3. Termination. Upon termination of this Agreement, Customer shall no longer access the Software and Customer shall not circumvent any security mechanisms contained therein.
  4. Other Remedies. Termination of this Agreement shall not limit either party from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve Customer’s obligation to pay all fees that have accrued or are otherwise owed by Customer under this Agreement.
  1. MISCELLANEOUS
  1. Compliance With Laws. Customer agrees to comply with all applicable laws, regulations, and ordinances relating to its performance under this Agreement. The parties agree that the Agreement shall not be governed by the United Nations Convention on the International Sale of Goods or by UCITA, the application of which is expressly excluded.
  2. Assignment. Customer may not assign this Agreement or otherwise transfer any license created hereunder whether by operation of law, change of control, or in any other manner, without the prior written consent of Mailshake. Any assignment or transfer in violation of this Section shall be null and void.
  3. Survival. The provisions set forth in Sections 2, 5.2, 6, 7.4, and 8 of this Agreement shall survive termination or expiration of this Agreement and any applicable license hereunder.
  4. Notices. Any notice required under this Agreement shall be given in writing and shall be deemed effective upon delivery to the party to whom addressed. All notices shall be sent to the applicable address specified on the face page hereof or to such other address as the parties may designate in writing. Unless otherwise specified, all notices to Mailshake shall be sent to the attention of the CEO. Any notice of material breach shall clearly define the breach including the specific contractual obligation that has been breached.
  5. Force Majeure. Mailshake shall not be liable to Customer for any delay or failure of Mailshake to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of Mailshake. Such causes shall include, but are not limited to, acts of God, war, terrorist act, invasion, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, bank closures/failures, natural catastrophes, floods, fires, loss of electricity or other utilities, generalized lack of availability of raw materials or energy, governmental acts or omissions, changes in laws or regulations, labor strikes, or delays by Customer in providing required resources or support or performing any other requirements hereunder.
  6. Restricted Rights. Use of the Software by or for the United States Government is conditioned upon the Government agreeing that the Software is subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. Customer shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Software, when delivered to the Government, is correctly marked as required by applicable Government regulations governing such Restricted Rights as of such delivery.
  7. Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect thereto. Any signed copy of this Agreement made by reliable means (e.g., photocopy or PDF) shall be considered an original.
  8. Modifications. The parties agree that this Agreement cannot be altered, amended or modified, except by a writing signed by an authorized representative of each party.
  9. Nonsolicitation. During the term of this Agreement and for a period of two (2) years thereafter, Customer agrees not to hire, solicit, nor attempt to solicit, the services of any employee or Subcontractor of Mailshake without the prior written consent of Mailshake. Customer further agrees not to hire, solicit, nor attempt to solicit, the services of any former employee or Subcontractor of Mailshake for a period of one (1) year from such former employee’s or Subcontractor’s last date of service with Mailshake. Violation of this provision shall entitle Mailshake to liquidated damages against Customer equal to two hundred percent (200%) of the solicited person’s gross annual compensation.
  10. Publicity. Customer agrees to cooperate with Mailshake (i) in preparation of at least one (1) press release, where the aforementioned materials can be used in/on Mailshake’s Web site, marketing materials, trade shows, public advertisements, and other associated marketing uses (“Mailshake Marketing Materials”); and (ii) in preparation of an Mailshake-sponsored testimonial advertisement to be run in newspapers, magazines, and other publications and for use in Mailshake Marketing Materials. The parties further agree that Mailshake may include Customer’s logo on publicly displayed customer lists (including Mailshake’s Internet Web site and public advertisements).
  11. No Waiver. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy.
  12. Severability and Reformation. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
  13. Choice of Law. THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS OF ANY STATE OR JURISDICTION. ANY ACTION RELATED TO THIS AGREEMENT SHALL BE BROUGHT IN THE STATE OR FEDERAL COURTS LOCATED IN AUSTIN, TEXAS AND EACH PARTY HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.