Effective as of August, 2012
Welcome to CakeMail! We hope that you will enjoy our email marketing online services that will, among other things, enable you to collect visitor email
addresses and to create, launch, and manage online email campaigns (“Services”).
legal entity) (“Organization”) and each of the individuals (e.g., employees or consultants) acting on your behalf (the Organization and the individuals,
collectively “you” or “your”), setting forth, among other things, the terms and conditions for the provision of the Services by CakeMail to you. The
Services are available through the following address: http://cakemail.com.
website at the following address: http://cakemail.com/terms-of-use, so we encourage you to review them periodically. If we make any substantial
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
please contact us by email at firstname.lastname@example.org ; we will refund you any amount you prepaid.
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
Payments and Refunds
Credit Card Payment. Payment for Services will 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 Services fees paid 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.
Reactivation Fee. We will charge a reactivation fee to reactivate an account that has been deactivated due to non-payment.
API Terms; 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
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
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; Intellectual Property
Your Content. All of your Content must comply with Canadian, U.S. and your local copyright and other 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 Content
materials remain yours.
Our Content and Software. All content displayed by us as well as all the software (including any source code) used in connection with the Services are
our exclusive property or the property of third parties and is protected by copyright laws.
Trademarks. Our company or other third party names and logos and all related product and service names, design marks, trademarks and slogans that our
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 in any advertising, publicity or any other commercial manner without our prior
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
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
Restrictions. You shall not (i) permit any third party to access the Services except as 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.
Interruptions. You acknowledge that: (i) the provision of Services may be suspended for the duration of any unanticipated 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;
and (ii) we are entitled, without any liability to you, to suspend access to any portion or all of the Services at any time (a) for scheduled downtime
to permit us to conduct maintenance or make modifications to the Services; (b) in the event of a denial of service attack or other attack on the
Services or other event that we determine, in our sole discretion, that a risk to the Services, to you or to any of our other users may be created if
the Services were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is
necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Interruptions”).
No Liability. We shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other
consequences that you may incur as a result of any Service Interruption.
Notice of Interruption. To the extent we are able, we will endeavor to post updates on our website on this page, regarding any Service Interruption and resumption of service following any such suspension, but
shall have no liability for the manner in which we may do so or if we fail to do so.
Prohibited Acts; Prohibited 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
all applicable laws, including without limitation all privacy 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, 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 or otherwise making available any Content that (i)
(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 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”; (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) collect
or “harvest” 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 messages; or (xi) otherwise violates any local, national or other applicable laws or
regulations including applicable privacy laws and regulations.
Prohibited Services. 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
Work from home opportunities
Credit repair, Mortgages and/or Loans
List brokers or List rental services
Any other Content that we deem inappropriate
PROHIBITED AND MAY RESULT, AT OUR DISCRETION, IN THE SUSPENSION OR TERMINATION OF YOUR ACCOUNT.
Contact. Any misuse of the Services may be reported to email@example.com.
Security. We endeavor to use reasonable 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 (COLLECTIVETLY, “REPRESENTATIVES”), as applicable, for any improper,
unauthorized or illegal uses of your account. You agree to immediately notify us of any unauthorized use or your account, or any other breach of
security at firstname.lastname@example.org For the purposes of this Section “Disclaimer” and Section “Limitation of Liability; Indemnity”, “we” or “us” means CakeMail
and our Representatives.
“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
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; 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, AND 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 SERVICE
PRECEEDING 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
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
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. All of your content and data used in connection with the Services (collectively, “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 terminate it.
of your account, including, without limitation, all ownership provisions, warranty disclaimers, limitations of liability and indemnification
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
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
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
federal or provincial courts located in the Province of Québec, Canada (district of Montreal), and you hereby irrevocably and unconditionally consent
use of the Services.
up in the English language. Les parties aux présentes reconnaissent avoir expressément exigé que les présentes Conditions d’utilisation, la Politique
relative à la protection des renseignements personnels et la Politique antipourriel (spam) soient rédigées en anglais.
Services you were provided, please contact us by email at email@example.com.