Terms of Service
Last Updated: Jan 01, 2020
THESE TERMS OF SERVICE (the « Terms ») are a legal and binding agreement between MimePost (« MimePost » or « We » or « Service Provider ») and you, or if you represent an employer or client, than the employer or client (« You » or « Client »), governing your use of MimePost’s https://mimepost.com website, the email delivery service and all other related services that MimePost provides (collectively the « Services »).
MimePost reserves all rights to modify or update these Terms at any time and at its individual choice, by posting on its Website or by giving any other notice, if possible at least 30 days before its entry into effect, and your rights under these Terms will be subject to the most current version posted on the Website at the time of use.
PLEASE CAREFULLY READ THESE TERMS. BY SUBSCRIBING OR BY ACCESSING OR USING THE WEBSITE OR THE SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE, WITHOUT RESERVATIONS, TO BE BOUND BY THE LATEST VERSION OF THE AGREEMENT BEING THE FOLLOWING DOCUMENTS, LISTED BY ORDER OF PRIORITY:
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Specific Terms (defined below in article 1), if any;
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These Terms;
Article 1. Definitions
Each capitalized term herein shall have the meaning given below unless otherwise expressly stated.
« Assistance Services » means any consulting services, development, configuration and settings assistance provided by Service Provider in order to allow Client to access and use the Service, including integration of an API into its own website or implementation of an « SMTP-IN » protocol for email transfers. Assistance Services include Consulting Services, On-boarding and training services, as well as all related services.
« Data » means Client’s electronic data, whether or not personal data, which are collected, managed, processed and/or shared by Client and Service Provider, and which may be intended for third parties, through the Service access and use rights.
« Operating Policies » means the operational rules, guidelines and processes followed by Service Provider in the operation of the Service, and with which Customer’s compliance is also required in some cases. These Operating Policies are comprised of the Privacy Policy, Service Level Agreement (SLA), and MimePost Sending Policy, as updated from time to time, and are incorporated herein.
« Specific Terms » means all specific terms and conditions mutually agreed with the Client stating in particular the f inancial and technical elements specified in quotation.
« Website » means the web pages associated with the technological features of the Service described in the Service Documentation that can be accessed by and configured for and/or by Client, especially the “Admin” interface, in accordance with the Agreement.
Article 2. Support and Service Levels
2.1 We shall use reasonable efforts, in accordance with the customary state of the art principles, to ensure that emails sent by You are properly routed to their recipients’ electronic mailboxes.
2.2 Support and Service Levels
You shall be responsible for appointing an administrator (the « Administrator »), who shall be in charge of collecting information and assistance requests from your users and for trying to respond to them.
We shall provide client support for the Service (« Support »), consisting of (i) responding to the Administrator’s requests for information and support in connection with use of the Service, or (ii) resolving faults arising from use of the Service that the Administrator has not been able to fix despite its best efforts.
The Administrator is to create a Support ticket by sending a request to: support@mimepost.com, including as much detail as possible relating to the request for Support, it being agreed that only the Administrator may contact/access Support.
Support access conditions and service levels commitments are detailed in the Service Level Agreement (SLA) where applicable.
Article 3. Use of the Services
3.1 Use of the Services
You shall comply with the terms and use restrictions, if any, set out in these present Terms, and in the Operating Policies. You shall be responsible for assuring that your users also comply with said Terms and use restrictions.
You shall not interfere with or disrupt the operation of the Service and shall comply with the Agreement for access to and use of the Service.
When You use the MimePost API, You shall be responsible for your usage of the MimePost platform and shall limit your API calls to a reasonable volume. MimePost reserves the right, at its sole preference, to take any necessary action to address any inappropriate use.
3.2 Credentials
When You create your account, You undertake to share the information required to process your orders as requested on line, including, your surname, first name, company name, address and valid email. This Data shall be processed in accordance with our Privacy Policy. You are responsible for the consequences of false or inaccurate information You have shared with us.
You shall keep confidential and secure all credentials, User IDs and passwords associated with your account and to immediately notify Us of any unauthorized use of your account, or of any theft or loss of credentials allowing access to the account. Each account is personal and can only be accessed and used by You or the users duly authorized by You. You recognize and acknowledge that You may be liable for any unlawful, wrongful or fraudulent use of the account, and You shall indemnify and hold Us harmless against any action or claim arising from such a use. We reserve the right to request proof of your identity or authority before granting access to your account.
3.3 Content
You shall be completely and totally liable (i) for any Data, information or content, in particular the content of emails or newsletters sent by You through the Service, including if such content is provided by a third party, such as an SMTP relay or via the routing of an entire infrastructure (hereinafter collectively referred to as « Content »), and (ii) for the Content’s compliance with the regulations in force in accordance with article 4 below.
You acknowledge and warrant that the Content, whether in entire or in part, shall in no event:
- encroach, misappropriate or violate any right, especially any Intellectual Property Right, of any third party whatsoever;
- contain any virus or program designed to cause damage, intercept or misappropriate any system or Data or personal data in a fraudulent manner;
- contain any unlawful, bullying, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature or any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable laws or regulations ;
- contain any sensitive personal data, including social security number, individually identifiable health or health insurance information, bank account information or credit card information;
- be false, misleading or inaccurate; or,
- be in breach with the Operating Policies.
You acknowledge that We have the right, but not the obligation, to monitor the Service and any Data submitted. To comply with legal obligations in this respect, We may take any actions (including removing Content or denying routing of certain Data and emails) We reasonably believe are necessary to prevent unlawful activity in connection with the Service.
You expressly acknowledge and agree that MimePost shall not be liable for any loss or destruction of the Content, including the Data, and that You shall be responsible for ensuring that You have proper backups thereof.
3.4 Sending PolicyYou undertake to comply with Our Sending Policy and, in particular, You acknowledge that You have been informed that in the event of breach of the provisions of this Policy, in particular if emails are sent to recipients who did not specifically ask to receive such emails, or if We receive an unusual number of complaints, We shall be entitled to terminate your subscription and/or close the master account or any associated sub-account, in which case You shall not be entitled to claim any refund or compensation.
We also reserve the right to temporarily limit your sending – which means that your daily and total emails sent will be limited in number and You will need to take the necessary measures to ensure that your practices comply with our Policy and requirements – before MimePost can lift the temporary sending limit and allow You to send your desired volumes. A temporary sending limit subsequent to a breach of your contractual obligations means that You will remain liable for the payment of the amounts contractually due during the limitation period despite the limitation on your email sending options and no refund whatsoever will be made.
Some internet service providers (« ISP ») may suspend the routing of emails from certain addresses if they detect or suspect any dishonest or illegal behavior (« blacklisting »). If Your account is blacklisted by an ISP, We shall use reasonable efforts to attempt to re-establish communication with such ISP, and You agree to pay for the additional Services We may be required to perform for this purpose.
Article 4. Compliance with the Law
You (i) shall comply with all laws and regulations in force that are applicable in any country from which You access the Website and/or use the Service, as well as in any country to which You send emails, and (ii) shall indemnify and hold Us harmless from any action brought against Us, judgment entered against Us or loss We may sustain due to Your non-compliance with applicable laws and regulations.
Furthermore, You agree to reimburse Us for any action or formality We may be required to carry out to comply with a legal demand or request from an administrative or judicial authority in relation to your use of the Service.
In the event You become aware of a violation by any third party of any provision of these Terms or of any laws or regulations and, in particular, if You become aware of a security breach by a third party or discover a security breach, You shall immediately notify Us by any means, including by sending an email to abuse@mimepost.com.
Article 5. Fees and Payment
5.1 Service Fees
We calculate and bill fees and charges monthly. We may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. You will pay us the applicable fees and charges for use of the Service Offerings as described on the MimePost Site using one of the payment methods we support. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on the MimePost Site, unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Services you are using by giving you at least 30 days’ prior notice. We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
5.2 Taxes
Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of Indirect Taxes. We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from you. We will not collect, and you will not pay, any Indirect Tax for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption from such Indirect Tax.
Article 6. Termination
6.1 Right of withdrawal
The Services are reserved exclusively for a professional use and any regulations on consumer or retraction rights are not applicable to the Services.
6.2 Termination and/or deletion of an account upon MimePost’s initiative
MimePost may terminate your Account and the performance of Services at its sole discretion under the following circumstances:
- at any time and for any legitimate reason for a free plan or inactive account provided reasonable notice is given; or,
- after You have been notified by MimePost following any breach of laws or regulations or these Terms, including but not limited to: if payment or partial payment of any sum due by You is not received by MimePost; in the event of a payment incident; when using the Services to send emails that do not comply with the Sending Policy; in the event of a breach or attempted breach of the Website security; or, in the event of fraud or attempted fraud when using the Website.
6.3 Consequences of the termination
Upon expiration or termination of your account for any reason whatsoever, all amounts still owed by You, shall become due and payable immediately. We will not refund any prepaid fees and will charge You the full amount that We would have been entitled to charge for the remaining term.
You are advised that as of the effective termination date of your account, You will cease to have access to your account and to the Data stored therein, subject to the provisions of the Privacy Policy and applicable laws.
Article 7. Intellectual Property – Access and Use Rights
7.1 Trademarks
The service name MimePost and all trademarks referenced on the Website, without limitation, are among the registered trademarks of Service Provider. You are not allowed to use any such trademarks without Service Provider’s express written agreement.
7.2 Copyrights
All elements on the site, such as graphic elements (including graphical interface), logos, headers, icons, service names, literary content, computer programs, etc. are protected by copyright laws, and remain the full property of their authors. You are not allowed to use the content or design of the site without Service Provider’s express written agreement.
Article 8. Warranties
MimePost makes all reasonable efforts to deliver a functional Service and substantially compliant with its documentation and/or SLA, but does not guarantee an error or “bug” free service. If You notice a non-compliance issue, You must notify MimePost as soon as possible and MimePost undertakes to make every reasonable effort to remedy the non-compliance issue, as this is Your only recourse.
You declare, warrant and agree, in MimePost’s favor, that: (1) You have the right and authority to subscribe and use the Services, and accept these Terms, and if You accept the Agreement on behalf of a corporation or other entity, to link that company or other entity hereunder; (2) You have the right and executing authority of your obligations under these Terms; and, (3) all Data, information or content that You provide to MimePost in the context of your access to the Website and use of the Services is accurate and up-to-date.
Furthermore, You acknowledge that MimePost does not control the transfer of Data via the internet, and cannot be held responsible for delays or delivery problems arising from internet or other outside connection issues.
Article 9. Limitation of Liability
The Service, as well as the Website may include links to other websites or other Internet sources. Insofar as We cannot control these sites and external sources, MimePost cannot be held responsible for the availability of such external websites or sources, and may not be held liable in any way for the content, advertising, products, services or other materials on or available from such external websites or sources. MimePost provides links only as a convenience, and such inclusion of any link does not imply that We endorse the linked websites or any part of their content. In addition, MimePost cannot be held responsible for the behavior or actions of other users, nor for any proven or alleged damage or loss subsequent to or in connection with access to, use of or the fact of having relied upon the content, products or services available on such external sites or sources.
MimePost will be freed from the performance of Services, following an event of Force Majeure, as defined in article 10.5 of these Terms.
Furthermore, for maintenance reasons, MimePost may suspend temporarily access to the Services; in such cases, MimePost will endeavor to notify You and to keep the length of the interruption to a minimum.
In any event, MimePost (including its third party suppliers, employees or representatives) may not, under any circumstances, be liable for indirect or consequential damages of any kind, including and without limitation, loss of revenue, profits, chance, business interruption, or Data loss, even if the parties were informed of the possibility of such damages.
Moreover, as to any indirect MimePost subscriber, in no event shall MimePost be liable for any End User, in particular in the event of temporary or permanent suspension of the Services due to non respect of the MimePost Sending Policy by Yourself or the End User.
Article 10. Miscellaneous
10.1 Transfer of the Agreement – Change of Control
For the avoidance of doubt, it is hereby reiterated that Client has a personal, temporary, non-transferable and non-exclusive right to access and use the Service.
Under these conditions, it is expressly agreed that Client shall not transfer the Agreement or any right derived from the access and use of the Service to a third party, whether by a contribution, assignment, concession, merger, demerger, loan or otherwise, including without consideration, or within the group to which Client belongs, without Service Provider’s prior written agreement.
10.2 Subcontracting
Service Provider reserves the right to use subcontractor(s) of its choice to provide the services in connection with the Services, and shall remain liable to Client for the performance thereof in accordance with the present Terms and subject to the reservations stipulated in the Agreement.
10.3 Entire Agreement
These Terms, including the Operational Policies along with any purchase order and/or special conditions, constitute the entirety of the commitments between You and us. It establishes all of the Parties’ rights and obligations and supersedes all prior oral or written commitments that directly or indirectly concern the subject matter of the agreement between us. This Agreement binding us may only be modified by a written amendment which is signed and designated as such by both Parties (You and us).
10.4 Severability
If any one of the provisions of the Agreement is deemed void under any legal principle, law or regulation, or is invalidated by a court decision, it shall be severed from the Agreement, but the other provisions of the Agreement shall remain in full force and effect.
10.5 Force Majeure
MimePost shall not be responsible for any default or delay due to extraordinary events beyond its control including, without limitation, strikes, lock-outs, shutdown of internet connections by Internet provider, cyber-attacks on the Website (« Force Majeure »).
If a Force Majeure event occurs, this Agreement shall be automatically suspended during the time the Force Majeure event continues, and neither Party shall be liable to the other for non-performance or delay in the performance of required obligation(s) due to the Force Majeure event, provided the non-performing Party gives prompt written notice of its inability to perform specified obligation(s) due to the event and uses reasonable efforts to resume its performance of its obligation(s) as soon as possible. It is agreed that the other Party may, during the time the Force Majeure event continues, similarly suspend performance of its obligations until such time as the non-performing Party resumes performance of its obligation(s). The Parties shall meet in order to jointly determine the conditions for resuming performance of the Agreement as soon as possible. If a Force Majeure event continues for more than a period of sixty (60) days, the Agreement may be terminated by either Party, by giving notice by certified mail, return receipt requested, effective immediately, if the impacted obligations are material obligations under the Agreement. Notwithstanding the foregoing, in no event shall a Force Majeure event, excuse or delay a Party’s obligation(s) with respect to confidentiality or Intellectual Property Rights.
