Agreement and Amendments to the Terms of Use
Agreement
By accessing and using the Services Cakemail, you accept and agree to the provisions of these terms of use (the “Terms of Use”) without any reservations, modifications, additions or deletions. If you do not agree to any provisions contained in these Terms of Use, you are not authorized to use the Services. You may be denied access to the Services, with or without notice to you, if you do not comply with any provisions of these Terms of Use.
Amendments
We reserve the right to update and change these Terms of Use, in whole or in part at our sole discretion, from time to time and will post the updated amended Terms of Use on our website at the following address:
Terms of Use with the date of the amended version. If we make any substantial changes to these Terms of Use, we will notify you by posting a prominent notice when you log onto Cakemail. If you do not agree to, or cannot comply with, these Terms of Use as amended, you are not authorized to use the Services. You will be deemed to have accepted these Terms of Use, as amended, if you continue to use the Services after any such changes. Any new features that augment or enhance the current Services, including the release of new tools and resources, shall be subject to these Terms of Use. If you wish to cancel your account because you do not agree with these Terms of Use as amended, please contact us by email at
support@cakemail.com; we will refund you any amount you prepaid in respect of such Services for the period after the amended Terms of Use take effect.
Power and Authority
You represent and warrant to us that you have the full right, power and authority to access and use the Services and, to the extent necessary, that you have obtained all necessary corporate or other authorizations or consents to access and use the Services. Thus, if you are an individual (e.g., employee or consultant) acting on behalf of an Organization, you represent and warrant that you have obtained all necessary authorizations or consents (i.e., you must be an authorized representative) to accept these Terms of Use on behalf of such Organization so that, in addition to yourself, such Organization is bound by these Terms of Use.
Account Terms
Registration
We restrict access of the Services to registered users.
Age
You must be 18 years or older (or the age of majority in your jurisdiction of residence) to use the Services.
Account Information
You must provide true, accurate, current, and complete information about yourself (Organization and/or individual, as the case may be), including but not limited to a valid email address (collectively, your “Account Information”). You agree to update your Account Information as necessary to keep it accurate. You understand and agree that you are solely responsible for maintaining the confidentiality of your Account Information (including passwords) and for restricting access to your hardware device while using the Services. You agree to accept responsibility for all activities that occur under your account.
Login and Passwords
Your login may only be used by yourself. Sharing a login with other people is not permitted. An Organization may create separate logins for as many individual users as it wishes. You are responsible for maintaining the security of your account login and passwords.
Free Account
Only one free account per Organization is permitted.
Data Archival
For all accounts, we reserve the right to delete all user activity older than 90 days, after which only aggregate activity will be available to you.
Payments and Refunds
Credit Card Payment
Payment for Services must be made by a valid credit card accepted by us, unless other payment arrangements have been made. You hereby authorize us to charge your credit card for such amounts according to our pricing terms.
No Refund
All fees paid for services rendered are non-refundable, unless an account is terminated by us without cause, in which case, a refund may be granted on a pro-rata portion of your prepayment for such services.
Reactivation Fee
We will charge a reactivation fee of $100 to reactivate an account that has been deactivated due to non-payment.
API Terms and Specific Terms
Organizations may access their account data via an Application Programming Interface (“API”). Any use of the API, including use of the API through a third-party product that accesses our Services, is governed by the terms of these Terms of Use in addition to the following specific terms:
- We reserve the right to throttle API requests;
- Abuse or excessively frequent requests to the API may result in the temporary or permanent suspension of your account’s access to the API. We, at our sole discretion, will determine abuse or excessive usage of the API. We will make a reasonable attempt via email to warn the account owner prior to suspension; and
- We reserve the right to modify or discontinue, temporarily or permanently, the API (or any part thereof) at any time with or without notice.
Content and Intellectual Property
Your Content
All of your content and data used in connection with the Services (collectively, “User Content”) must comply with Canadian, U.S. and any other applicable intellectual property or other laws. You must only use images and text you are entitled to use. We claim no intellectual property rights over the material you provide through the Services. Your User Content materials remain yours or your licensors.
Sanctions
We may remove any Content or prohibit any use of the Services we believe may be (or is alleged to be) in violation of these Terms of Use.
Our Content and Software
All content displayed by us or otherwise on the web site and including, without limitation, all the software (including any source code) used in connection with the Services, style guide, design, text, photographs, illustrations, audio clips, video clips, tools, artwork and other graphic material (the “Cakemail Content”) is protected by applicable copyright laws. The content, and the copyright in the content, are owned or controlled by us and/or our affiliates, licensors, suppliers, representatives or agents. You must abide by all copyright notices, information and restrictions contained in any content on or accessed on the web site and maintain such notices in the Cakemail Content.
Trademarks
Our company or other third party names and logos and all related product and service names, design marks, trademarks and slogans that are displayed on or through the Services or used in connection with the Services, are our sole property or the property of our affiliates or licensors (collectively, “Marks”). You are not authorized to use any of the Marks for any purpose whatsoever including without limitation, in any advertising, publicity or any other commercial manner, without our prior written consent.
No License
Nothing appearing on or through the Services will be construed as granting you any license, right, title or interest relating to the Marks or other intellectual property used in connection with the Services (collectively, “Intellectual Property”) and the Intellectual Property remains our exclusive property or the property of its owners. Except as stated herein, you agree not to display, copy, reproduce, use or distribute any Intellectual Property without our prior written consent. Also, you cannot mirror any material contained on the Services or made available through the Services.
Reservation of Rights
Subject to the limited rights expressly granted hereunder, we reserve all right, title and interest in and to the Services, including all related Intellectual Property rights, to the fullest extent possible under applicable laws. You may not assign, transfer or otherwise affect any rights granted to you under these Terms of Use, and any attempt to assign, transfer or otherwise affect any part of your rights under these Terms of Use is void.
Restrictions
You shall not (i) permit any third party to access the Services except as specifically permitted herein, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
Feedback
We shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Services or other feedback provided by you relating to the operation of the Services (collectively, “Feedback”). You hereby irrevocably assign all right, title and interest in and to the Feedback to us and waive all your moral rights in the Feedback.
Prohibited Acts and Services
Prohibited Acts
So that the Services are available for all users to enjoy, you represent, warrant and covenant that you (including, if you are an Organization, an individual acting on your behalf such as an employee or consultant) (i) will use the Services only in compliance with these
Terms of Use (including the
Privacy Policy and
Anti-Spam Policy) and all applicable laws, including without limitation all applicable privacy laws and anti-spam laws and (ii) will not, and will not or permit or enable third party to:
- Use automated tools to operate the Services (scripts, etc.);
- Use the Services to store Social Security Numbers, social insurance numbers, passwords, security credentials or sensitive personal information;Host images and files on our servers other than those intended for use in your email campaigns;Use the Service to design an email campaign and send it through another means; or
- Use the Services in a way (including without limitation displaying, posting, transmitting, distributing or otherwise making available any Content) that (i) violates these Terms of Use (including, without limitation, through the posting of any Content that violates third party rights or applicable laws including anti-spam laws); (ii) you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships (such as proprietary and confidential information collected, learned or disclosed as part of employment relationships or under non-disclosure agreements); (iii) is unlawful, infringing, harmful, threatening, tortious, defamatory, libelous, abusive, obscene, invasive of another’s privacy, hateful, fraudulent or malicious; (iv) harasses or advocates harassment of another person; (v) involves the transmission of “junk mail,” “chain letters,” or unsolicited mass mailing or “spamming” as those terms are normally understood, or as defined in any anti-spam law applicable to you; (vi) involves the sending of any virus, Trojan horse, worm, harmful code, shutdown mechanism or similar mechanism; (vii) promotes information that you know is false, misleading, defamatory or promotes illegal activities or conduct; (viii) solicits passwords, or personal identifying information for commercial or unlawful purposes from other users; (ix) interferes with or disrupts the Services ; (x) collects or “harvests” from or through the Services the names and/or other information of other users for the purpose of transmitting to third parties (including other users of the Services) unsolicited commercial electronic messages; or (xi) otherwise violates any local, national or other applicable laws or regulations including applicable privacy laws, anti-spam laws and regulations.
Prohibited Service
We do not allow Organizations that offer the following types of services, products, or content, to use our Services:
- Pornography, nudity, escorts or anything sexually explicit
- Illegal goods or services
- Pharmaceutical products
- Work from home opportunities
- Online trading
- Gambling
- Multi-level marketing
- Affiliate marketing
- Credit repair, Mortgages and/or Loans
- List brokers or List rental services
- Any other Content that we deem inappropriate
Sanctions
ANY USE OF THE SERVICES (i) IN BREACH OF THESE TERMS OF USE (INCLUDING BUT NOT LIMITED TO THE ABOVE SUBSECTIONS ENTITLED “PROHIBITED ACTS” AND “PROHIBITED SERVICES”, THE PRIVACY POLICY OR THE ANTI-SPAM POLICY) OR (II) THAT IS NOT SPECIFICALLY PERMITTED UNDER THESE TERMS OF USE, IS STRICTLY PROHIBITED AND MAY RESULT, AT OUR SOLE DISCRETION, IN THE SUSPENSION OR TERMINATION OF YOUR ACCOUNT.
Contact
Disclaimer
Security
We endeavour to use commercially reasonable and appropriate security measures to protect against unauthorized access to your account and Account Information, and to any data which may be stored by us. We cannot, however, guarantee absolute security of your account or the personal information we collect, and we cannot promise that our security measures will prevent third-party “attackers” from illegally accessing the Services or their content. YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF ANY INFORMATION ON OR THROUGH THE SERVICES IS AT YOUR OWN RISK AND you accept all risks of unauthorized access to the Services, your Account Information and any other information you provide to us or through the Services. We will not be responsible for any losses arising out of the unauthorized use of your account and you agree to indemnify and hold us harmless, our officers, directors, shareholders, employees, distributors, agents, partners, licensors, information providers and account providers (collectively,
“Representatives”), as applicable, for any improper, unauthorized or illegal uses of your account by a third party. You agree to immediately notify us of any unauthorized use or your account, or any other breach of security at
support@cakemail.com For the purposes of this Section “Disclaimer” and Section “Limitation of Liability; Indemnity”, “we” or “us” means Cakemail and our Representatives.
GDPR related terms
Cakemail users should consult with their legal professionals to understand the full scope of their compliance obligations under GDPR. As a general rule, if you are an organization that is established in the EU, or if your organization is processing EU individuals’ personal data, the GDPR will be applicable to you.
One crucial GDPR objective is the Accountability Principle. The Accountability Principle states that the data controller (Cakemail client) has to be able to demonstrate that its processing activities are compliant with the data protection principles set forth in the GDPR. The easiest way to demonstrate compliance is by documenting and communicating your GDPR compliance approach.
C.F.
Art. 24 – EU GDPR – Responsibility of the controller“As is” Basis
THE SERVICES ARE PROVIDED “AS IS”. THE USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THE SERVICES WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND WE DISCLAIM ANY LIABILITY RELATING THERETO TO THE EXTENT PERMITTED BY APPLICABLE LAW.
Warranty Disclaimer
WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES (I) THAT THE SERVICES ARE OR WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR ERROR FREE OR (II) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. IN PARTICULAR, EMAIL DELIVERY TO THE RECIPIENT INBOX IS NOT GUARANTEED. WITHOUT PRIOR NOTICE, WE MAY MODIFY, SUSPEND, OR DISCONTINUE ANY ASPECT OR FEATURE OF THE SERVICES OR YOUR USE OF THE SERVICES. IF WE ELECT TO MODIFY, SUSPEND, OR DISCONTINUE ANY PART OF OR ALL OF THE SERVICES, WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY.
Exclusive Remedy
The sole and exclusive remedy for any failure or nonperformance of the Services shall be for us to use commercially reasonable efforts to adjust or repair any portion of the Services that caused any such failure or nonperformance.
Limitation of Liability and Indemnity
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, DELICT, QUASI-DELICT, NEGLIGENCE, CONTRACT, WARRANTY, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, SHALL WE OR ANY OF OUR REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE DAMAGES, OR OTHER DAMAGES ARISING OUT OF OR RELATING TO (I) YOUR USE, MISUSE OR INABILITY TO USE THE SERVICES, (II) THE INTERRUPTION, SUSPENSION OR TERMINATION OF ANY PART OF OR ALL THE SERVICES, OR (III) YOUR VIOLATION OF ANY APPLICABLE LAW INCLUDING BUT NOT LIMITED TO ANTI-SPAM LAWS EVEN IF WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, WE ARE FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, OUR LIABILITY TO YOU WILL BE LIMITED TO THE AMOUNT PAID FOR THE LAST 3 MONTHS OF SERVICES PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.
Indemnity
YOU WILL INDEMNIFY AND HOLD US AND OR OUR REPRESENTATIVES HARMLESS WITH RESPECT TO ANY SUITS, CLAIMS OR DEMANDS (INCLUDING REASONABLE LAWYERS’ FEES) ARISING OUT OF (I) YOUR BREACH OF THESE TERMS OF USE, INCLUDING THE PRIVACY POLICY OR THE ANTI-SPAM POLICY; (II) ANY DAMAGES CAUSED BY YOU OR THROUGH YOUR USE OF THE SERVICES, INCLUDING THIRD PARTY DAMAGES; AND (III) YOUR USE OR MISUSE OF THE SERVICES.
Termination of Your Account
Account
For the purposes of this Section “Termination of Your Account”, “account” includes, for an Organization, the account of that Organization and all of the accounts of the users of the Services which act on behalf of such Organization, such as employees and consultants.
Termination by You or by Us
Your account will be automatically terminated at the end of your pre-paid period if you ask us to stop providing the Services to you (you must send us a notice at least 7 days in advance). We reserve the right to modify or discontinue, temporarily or permanently, all or part of the Services, at any time with or without notice, without any liability whatsoever.
Termination for Breach
We may suspend your account immediately in the event of any breach by you (including, if you are an Organization, somebody acting on your behalf such as an employee or consultant) of these Terms of Use, including the Privacy Policy and the Anti-Spam Policy. Specifically, but without limiting the generality of the foregoing, an account will be suspended for malicious use or malicious intention, violation of any applicable laws including anti-spam laws, or any use of the software in a manner for which it is not designed or intended to be used. We will notify you by email of your account suspension. If the breach is not cured within 72 hours of the notice of suspension, we may, at our sole discretion, terminate immediately your account without incurring any liability whatsoever. If we terminate your account(s) for breach, no refund will be issued.
No Liability
We shall have no liability to you or any third party because of any termination of your account.
Consequences of Termination
To the maximum extent permitted by applicable laws, including privacy laws, all of your User Content will be immediately deleted from our servers upon termination of your account. This information cannot be recovered once your account is terminated.
Account Inactive
If you do not log into a free account for more than 6 months, we reserve the right, at our sole discretion, to classify the account as inactive and to terminate it, without any liability whatsoever.
Survival
All provisions of these Terms of Use which by their nature should survive expiration or termination shall survive the expiration or termination of your account, including, without limitation, all ownership provisions, warranty disclaimers, limitations of liability and indemnification obligations contained in these Terms of Use.
Miscellaneous
Severability
If any provision of these Terms of Use is found to be unenforceable or invalid, that provision will be limited or struck to the minimum extent necessary so that these Terms of Use will otherwise remain in full force and effect and enforceable.
Entire Agreement
You agree (i) that these Terms of Use (including the Privacy Policy and Anti-Spam Policy) are the complete and exclusive statement of the mutual understanding between you and us and supersede and cancel all previous written and oral agreements, communications, and other understandings relating to the subject matter hereof and (ii) that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under these Terms of Use or existing at law or equity shall be considered a waiver of such right or remedy.
No Agency
No agency, partnership, joint venture, or employment is created as a result of the Terms of Use, and you do not have any authority of any kind to bind us in any respect whatsoever.
Subcontract
We may subcontract, without having to obtain your consent, any or all part of the provision of the Services and our obligations under the Terms of Use.
Governing Law and Jurisdiction
These Terms of Use shall be governed by and construed in accordance with the laws of the Province of Québec, Canada applicable to agreements made and entirely to be performed within the Province of Québec, Canada, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. Regardless of where you access or use the Services, you agree that any action at law or in equity arising out of or relating to these Terms of Use or your use of the Services shall be filed and adjudicated only in the federal or provincial courts located in the Province of Québec, Canada (district of Montreal), and you hereby irrevocably and unconditionally consent and attorn to the exclusive jurisdiction and venue of such courts over any suit, action or proceeding arising out of these Terms of Use or your access or use of the Services.
Language
The parties hereto acknowledge having expressly required that these Terms of Use, the Privacy Policy and the Anti-Spam Policy are to be drawn up in the English language.
Prevailing Version
In case there are several versions of the Terms of Use in different languages, you agree that the English language version of the Terms of Use shall be the controlling version.