These DirectMailer Terms of Service (the “Terms”) govern access to and use of the products and services provided by DirectMailer.io, LLC. (“DirectMailer”, “we” or “us”) to you. You are the individual or entity that creates an account or purchases/uses the DirectMailer Services (collectively “Customer”). Customers may be referred to in these Terms as “you” and “your” as applicable. These Terms incorporate by reference and include the Acceptable Use Policy and Service-Specific Terms as well as any policies or exhibits linked to or referenced herein.
To the extent that DirectMailer is, on behalf of the Customer, Processing Customer Data that is subject to EU Data Protection Laws, you are also agreeing to the Data Processing Agreement including the EU Standard Contractual Clauses, provided below, with directmailer.io, Inc. for the transfer of Personal Data to processors.
If you are agreeing to these Terms and, if applicable, the Data Processing Agreement, for use of the Services by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to these terms, otherwise you must not sign up for the Services.
ARBITRATION NOTICE: THIS AGREEMENT AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION, AND A WAIVER OF JURY TRIALS AND CLASS ACTIONS AS SET FORTH BELOW – PLEASE READ THESE SECTIONS CAREFULLY.
“DirectMailer Services” means the design, printing, mailing, address-verification, and mailing list creation services made available by DirectMailer to Customer, and subsequent updates or upgrades of any of the foregoing made generally available by DirectMailer. DirectMailer Services also include the DirectMailer website, application programming interfaces (the “APIs”), and any other technology or services that may be made available by DirectMailer to Customer. DirectMailer Services include, but are not limited to, designing, printing and mailing, address verification, and mailing list creating. DirectMailer also provides application programming interfaces that allows customers to write and execute software applications or websites (the “Customer Applications”) that interface with the DirectMailer Services using the APIs.
Certain DirectMailer products have specific terms (“Service Specific Terms”) which are currently available at: directmailer.io/service-specific-terms. In case of a conflict between the applicable Service Specific Terms for a certain product and these Terms, the Service Specific Terms will control.
3.1 Customer and its Authorized Users (as defined below) may need to register for a DirectMailer account in order to place orders or to access or use a DirectMailer Service. Account information must be accurate, current, and complete, and will be governed by DirectMailer’s Privacy Policy (currently available at directmailer.io/privacy). Customer agrees to keep account information up-to-date so that DirectMailer may send notices, statements, and other information by email or through Customer’s account. Customer must ensure that any passwords, and other access credentials (such as API tokens) for the DirectMailer Service are kept strictly confidential and not shared with any unauthorized person. If any Authorized User stops working for Customer, Customer must immediately terminate that person’s access to its account and any DirectMailer Service. Customer will be responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials. Customer must notify DirectMailer immediately of any breach of security or unauthorized use of its account. Accounts are granted to specific Customers and must not be shared with others.
3.2 An “Authorized User” is defined as an individual person (e.g. employee, contractor, agent of a Customer) who is registered and permitted by a Customer to use the DirectMailer Services subject to these Terms and any restrictions in an applicable Subscription Plan (as defined below). Customer shall ensure that its Authorized Users comply with these Terms and Customer is responsible for all actions of its Authorized Users.
4.1 Limited License. Subject to these Terms, DirectMailer grants to Customer a limited, non-exclusive, non-transferable license to use and access the DirectMailer Services for its business purposes as expressly permitted in these Terms. Your use and access to the Services are subject to any limitations set forth in an applicable order form, online plan or the Service Specific Terms (whether paid or free, collectively “Subscription Plan”).
4.2 General Restrictions. Customer must not (and must not allow any third party to):
5.1 Customer Data. As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the content, documents, and personally identifiable information that Customer uploads into the DirectMailer Service (excluding any DirectMailer intellectual property) (the “Customer Data”). Customer hereby grants DirectMailer a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, and create derivative works of the Customer Data solely to the extent necessary to provide the DirectMailer Service or as otherwise permitted in these Terms. Customer expressly authorizes DirectMailer to use and process Customer Data (including any Confidential Information contained therein) as described in these Terms and in the DirectMailer Privacy Policy (currently available at www.directmailer.io/privacy), which provides for, but is not limited to, designing, printing and mailing content to the individuals or business as directed by Customer through the Services. Customer acknowledges that, except as provided in this Agreement, DirectMailer has no obligation to retain any Customer Data or Personally Identifiable Information following DirectMailer’s performance of the DirectMailer Services and that Customer is responsible for maintaining proper back-ups of all Customer Data and Personally Identifiable Information for its general business purposes.
5.2 Aggregate/Anonymous Data. Customer agrees that DirectMailer will have the right to generate aggregate or anonymous data and that aggregate or anonymous data is owned by DirectMailer, which DirectMailer may use for any business purpose during or after the term of these Terms (including without limitation to develop and improve DirectMailer’s products and services and to create and distribute reports and other materials). For clarity, DirectMailer will only disclose aggregate or anonymous data externally in a de-identified (anonymous) form that does not identify Customer, Authorized Users, or end users, and that is stripped of all persistent or personal identifiers. Customer is not responsible for DirectMailer’s use of aggregate or anonymous data.
5.3 DirectMailer Intellectual Property. This is a subscription agreement for access to and use of the DirectMailer Services. Customer acknowledges that it is obtaining only a limited right to use the DirectMailer Services and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer (or its Authorized Users or end users) under these Terms. Customer agrees that DirectMailer (and its suppliers) retain all rights, title and interest (including all intellectual property rights) in and to all DirectMailer Services, and all related or underlying documentation, technology, code, know-how, logos, templates, anything delivered as part of support of other services, and any updates, modifications, or derivative works of any of the foregoing (all of which is deemed DirectMailer’s Confidential Information) and that DirectMailer reserves any licenses not specifically granted in these Terms. Other than the applicable APIs, the DirectMailer Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any DirectMailer Service and that DirectMailer at its option may make updates, bug fixes, modifications or improvements to the DirectMailer Service from time-to-time.
5.4 Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to DirectMailer (collectively, “Feedback”), Customer hereby grants DirectMailer a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Nothing in these Terms limits DirectMailer’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
6.1 DirectMailer Privacy Policy. The information you provide to us or that we collect will be used as described in these Terms and in the DirectMailer Privacy Policy (currently available at directmailer.io/privacy). Please carefully read the DirectMailer Privacy Policy, which contains important details about our collection, use and retention of information.
6.2 Security. DirectMailer protects your information from unauthorized use or disclosure by taking reasonable technical and organizational measures designed to secure our systems from unauthorized access, use or modification.
6.3 Data Transfers.
7.1 Customer agrees to: (i) maintain a legally-adequate privacy policy on its Customer Applications, and provide all required disclosures; (ii) obtain all necessary rights, releases, and consents to allow Customer Data or other information (including any personal information) to be collected, used, and disclosed in the manner contemplated by these Terms and to grant DirectMailer the rights and licenses set out in these Terms; (iii) use the DirectMailer Service in compliance with DirectMailer’s then-current Acceptable Use Policy (currently available at https://www.directmailer.io/aup) ; and (iv) not take any action that would cause DirectMailer, the DirectMailer Service or APIs to become subject to any third-party terms (including open source license terms).
7.2 Customer represents and warrants that its Customer Applications, and the collection, use, and disclosure of Customer Data will not violate any third-party rights, including intellectual property, privacy and publicity rights. Customer further represents and warrants that its collection and use of any personal information or data provided to DirectMailer complies with all applicable data protection laws, rules, and regulations. If Customer receives any take down requests or infringement notices related to Customer Data, it must promptly: (i) stop using the related item with the DirectMailer Service; and (ii) notify DirectMailer. If DirectMailer receives any take down requests or infringement notices related to Customer Data, DirectMailer may respond in accordance with its policies, and will notify and consult with the Customer on next steps.
7.3 Mail responsibilities: Customer acknowledges and agrees that: (i) Customer has exclusive control and responsibility for the content of all Customer Data, including any personally identifiable information used with the Services; and,(ii) certain types of content may have specific requirements and regulations regarding the use of such content in mail; and, (iii) Customer is solely responsible for ensuring that the Customer Data and content it uses with the Services are appropriate and legal to mail, and DirectMailer is not responsible or liable for any such determination or use; and, (iv) consumer protection laws or other regulations may impose specific requirements for mail. Customer is solely responsible for ensuring it complies with all such laws/regulations, and DirectMailer has no obligations to make such determination or assist with fulfilling any requirements therein.
8.1 Subscription Plan. The DirectMailer Services are made available on a subscription basis with additional usage fees for mailing list creation and mailpieces if you use the applicable services. The fees applicable for the DirectMailer Services ("Fees") are listed in the applicable online plan or order form. You agree to pay all Fees incurred in connection with your DirectMailer account. For the avoidance of doubt, Customer’s Tier upon the beginning of each contract year (assessed as of the first day of the Order Term) shall be the same Tier that Customer ended the previous contract year in.
8.2 Recurring Charges and Upgrades. By signing up for a Subscription Plan, Customer authorizes DirectMailer to charge Customer’s payment method on a recurring basis (e.g. weekly, monthly, quarterly, or yearly depending on Customer’s Subscription Plan) without an invoice. Customer expressly authorizes DirectMailer to charge its payment method (such as credit card or bank account withdrawal) for the applicable subscription charges, any usage or overage charges, and any and all applicable taxes and fees. You also agree, unless otherwise stated in the applicable Order Form, Customer is responsible for ensuring there are sufficient funds prior to DirectMailer releasing mailikng list or mailpiece orders for print. Promptly following any termination your Account, DirectMailer shall refund any remaining amounts to Customer, if any, after final reconciliation. In the event that Customer fails to remit payment for their List or Mailpiece Fees, DirectMailer may suspend Customer’s Account until such time as Customer replenishes the Prefund Amount.
8.3. Listing fee increases. DirectMailer will conduct an evaluation twice a year to assess the cost and expense of mailing list data. DirectMailer reserves the right to increase prices every six months. In the event of an increase in list fees, any affected Listing Fees will be automatically deemed increased on a pro-rata basis proportionate to such increase.
8.4. Postal rate fee increases. DirectMailer reserves the right to increase prices based on increases in applicable postal fees. In the event of an increase in applicable postal fees, any affected Mailpiece Fees will be automatically deemed increased on a pro-rata basis proportionate to such increase.
8.5 Mailpiece fee increases. DirectMailer will conduct an evaluation twice a year to assess the cost and expense of print materials. DirectMailer reserves the right to increase prices every six months. In the event of an increase in mailpiece fees, any affected Mailpiece Fees will be automatically deemed increased on a pro-rata basis proportionate to such increase.
8.6 Mailpiece Disputes. With respect to DirectMailer’s Print & Mail Service, Customer acknowledges and agrees that, where DirectMailer has provided Customer with an Intelligent Mail Barcode tracking code for a mailpiece sent via the DirectMailer Services, DirectMailer will have no liability for, and Customer will not be entitled to a refund, payment or any other remedy in the event the addressee does not receive such mailpiece. If any mailpiece contains a printing or rendering error, Customer must notify DirectMailer of such error within thirty (30) days of such mailpiece printing in order to qualify for a credit or reimbursement for such mailpiece. Any fee credits or reimbursements will be made in DirectMailer’s sole but reasonable discretion.
8.7 Taxes. DirectMailer’s fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of DirectMailer, but excluding taxes for which you have provided a valid resale or exemption certificate to DirectMailer (please submit to [email protected]). Customer will not deduct any applicable taxes from the payments to DirectMailer, except as required by law. If such deduction is required by law, Customer will increase the amount payable as necessary so that after making all required deductions and withholdings, DirectMailer receives and retains (free from any such liabilities) an amount equal to the amount it would have received had no such deductions or withholdings been made.
8.8 Auto-renewals and Trials. IF YOUR ACCOUNT IS SET TO AUTO-RENEWAL OR IS IN A TRIAL PERIOD AND YOU HAVE PROVIDED A METHOD OF PAYMENT TO DIRECTMAILER FOR THE SERVICES, DIRECTMAILER MAY CHARGE YOU AUTOMATICALLY AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS YOU NOTIFY DIRECTMAILER THAT YOU WANT TO CANCEL YOUR SUBSCRIPTION.
8.9 Purchase Orders. Customer agrees that it will pay all amounts owed, including recurring charges, without any referenced purchase order number. If a purchase order is required, then Customer will promptly notify DirectMailer at least thirty (30) days prior to such requirement and the parties will cooperate in good faith in implementing a billing process that includes references such purchase order numbers. Customer expressly agrees that any legal terms in such Purchase Order are null and void.
8.10 No Refunds. Except as expressly provided in these Terms, all charges and payments are non-refundable, non-cancellable, and non-creditable.
8.11 Late Fees & Collection Costs. Late payments may be subject to a service charge equal to the lesser of 1.5% per month of the amount due or the maximum amount allowed by law. You agree to reimburse DirectMailer for any costs or expenses incurred by DirectMailer to collect amounts that remain unpaid after the due date. Amounts due to DirectMailer may not be withheld or offset by you against amounts due for any reason.
8.12 ACH Payment Terms. If you choose to use a bank account as your payment method, you will be able to pay the fees due for your use of our Services by using any valid automated clearing house (“ACH”) enabled bank account at a United States-based financial institution. Whenever you choose to pay by ACH, you are authorizing DirectMailer (or its agent) to debit your bank account for the total amount of the fees due. If you choose to provide your bank account credentials to us, you authorize us to use this information to facilitate debiting your bank account. Your transaction must be payable in U.S. dollars. DirectMailer, in its sole discretion, may refuse this payment option service to anyone or any user without notice for any reason at any time. Transactions that we process using your bank account will be identified as “DirectMailer” (or similar identifier) on the statement issued by your bank or other financial institution holding your account.
By choosing your bank account as your payment method, you: (a) consent to the electronic delivery of the required disclosures, (c) authorize DirectMailer (or its agent) to make any inquiries we consider necessary to validate any dispute involving your payment, which may include ordering a credit report and performing other credit checks or verifying the information you provide against third party databases, and (c) you authorize DirectMailer (or its agent) to initiate one or more ACH debit entries (withdrawals), and you authorize the financial institution that holds your bank account to deduct such payments, in the amounts and frequency designated in your then-current payment plan. We reserve the right to cancel the ability to pay by Authorized Bank Account for any reason at any time.
9.1 Term. These Terms are effective until all Subscription Terms for the DirectMailer Service(s) have expired or are terminated as expressly permitted herein.
9.2 Subscription Term and Renewals. Customer agrees to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 9.4 (Termination for Cause). If no subscription start date is specified on the applicable order form, the subscription starts when Customer first obtains access to the applicable DirectMailer Service. Each Subscription Term will automatically renew for additional successive periods equal to the initial subscription (e.g. if Customer has an annual plan then the subscription will renewal for an additional 12 month term, if Customer has a monthly plan then the subscription will renewal for additional month terms) unless: (i) otherwise stated on the applicable order form; or (ii) either party gives written notice of non-renewal at least ninety (90) days before the end of the then-current Subscription Term.
9.3 Suspension of Service.DirectMailer in its sole discretion may suspend Customer’s access to the DirectMailer Service(s) if: (i) Customer’s account is overdue; or (ii) Customer has exceeded its service allocations / service limits. DirectMailer may also suspend Customer’s access to the DirectMailer Service(s) or remove Customer Data if it determines that: (a) Customer has breached any portion of these Terms, or (b) suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the DirectMailer Service. DirectMailer will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this Section 9.3. However, unless these Terms have been terminated, DirectMailer will cooperate with Customer to promptly restore access to the DirectMailer Service once we verify that Customer has resolved the condition requiring suspension. For the avoidance of doubt, in the event that DirectMailer suspends Customer’s access as provided in this Section, Customer shall be subject to a restoration fee in the amount of ten percent (10%) of Customer’s annual spend with DirectMailer (the “Suspension Reinstatement Fee”), no fee shall be due if Customer is erroneously suspended by DirectMailer.
9.4 Termination for Cause. DirectMailer party may terminate these Terms, including any related order form, if Customer: (i) fails to cure any material breach of these Terms (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter).
9.5 Effect of Termination. Upon any expiration or termination of these Terms or an order form: (i) Customer’s license rights terminate and it must promptly: (a) stop use of the applicable DirectMailer Service; (b) delete (or, at DirectMailer’s request, return) any and all copies of any DirectMailer code, documentation, passwords or access codes, and any other DirectMailer Confidential Information in Customer’s possession, custody, or control; (ii) Customer’s right to access any Customer Data in the applicable DirectMailer Service will cease and DirectMailer may delete the Customer Data at any time after 30 days from the date of termination; and (iii) promptly following any termination of an applicable order form in which Prepaid Funds exist, DirectMailer shall refund to Customer the amount, if any, of Prepaid Funds then held by DirectMailer that exceeds the total fees that remain owing and payable by Customer as of the termination of such order form. If DirectMailer terminates these Terms for cause as provided in Section 9.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where these Terms specify an exclusive remedy, all remedies under these Terms, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
9.6 Survival. The following Sections survive any expiration or termination of these Terms: 3 (Account Registration and Use); 4.2 (General Restrictions); 4.3 (Beta Releases and Free Access Subscriptions); 5 (Ownership and Feedback); 8 (Payment Terms); 9 (Term and Termination); 10 (Confidential Information); 11 (Warranties and Disclaimers); 12 (Indemnification Obligations); 13 (Limitations of Liability); 14 (Third-Party Products and Integrations); 15 (General); and anything that by its nature would reasonably be considered to survive these Terms.
10.1 “Confidential Information” means (a) for DirectMailer, the DirectMailer Services and Documentation; (b) for Customer, Customer Data; (c) any other information of a party that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure (and, in the case of oral disclosures, summarized in writing within thirty (30) days of the initial disclosure and delivered to the recipient), or that due to the nature of the information the recipient would clearly understand it to be confidential information of the disclosing party; and (d) the specific terms and conditions of these Terms, and any amendment and attachment thereof, between the parties.
10.2 Confidentiality Obligation. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by these Terms; and (ii) only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under these Terms. Each party may share the other party’s Confidential Information with its, and its affiliates’, employees, agents or contractors having a legitimate need to know (which, for DirectMailer, includes the subcontractors referenced herein) provided that the party remains responsible for any recipient’s compliance with the terms of this Section 10 and that these recipients are bound to confidentiality obligations no less protective than these Terms.
10.3 Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party before it received the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.
10.4 Remedies. The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section 10, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
For example, fulfilling your print and mail request.
ALL DIRECTMAILER SERVICES, DOCUMENTATION, AND SITES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER DIRECTMAILER NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. DirectMailer MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT DIRECTMAILER SERVICE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT DIRECTMAILER SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. DIRECTMAILER DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. DIRECTMAILER WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER APPLICATIONS, CUSTOMER DATA, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-DIRECTMAILER SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR THE COLLECTION, OR THE USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT. THE DISCLAIMERS IN THIS SECTION 11 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER AND SITE VISITORS MAY HAVE OTHER STATUTORY RIGHTS, HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MINIMUM EXTENT PERMITTED BY LAW.
12.1 Customer agrees to defend, indemnify, and hold DirectMailer, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys' fees) arising from or related to, as applicable: (a) Customer’s access to and use of the DirectMailer Services; (b) violation of these Terms by Customer or its Authorized Users, as applicable; (c) infringement of any intellectual property or other right of any person or entity by Customer; (d) the nature and content of all Customer Data, and (e) the Customer Applications.
12.2 DirectMailer will indemnify, defend, and hold Customer, and Customer’s respective officers, directors, employees, agents, and contractors (collectively the “Customer Indemnitees”) harmless from and against any and all claims, and all liabilities, damages, losses, costs and expenses, in each case that are paid or payable by Customer Indemnitees to unaffiliated third parties resulting therefrom (including but not limited to reasonable attorneys’ fees), to the extent arising out of any actual or alleged infringement, violation, or misappropriation of the intellectual property and/or proprietary rights of any third party by the Service. In response to any claim or potential claim of infringement, if required by settlement or injunction, or if DirectMailer’s determine such actions are reasonably necessary to avoid material liability, DirectMailer may at our option: (i) procure a license for the affected portion of the DirectMailer Service; (ii) modify the DirectMailer Service so as to avoid infringement but be materially equivalent; or (iii) terminate the affected DirectMailer Service and refund any subscription fees Customer has pre-paid for the terminated portion of the applicable subscription term. Notwithstanding the above, DirectMailer’s obligation under this section do not apply to the extent infringement results from: (a) third party products/services or combinations with these items; or (b) modification of the DirectMailer Service or DirectMailer APIs by someone other than DirectMailer or its subcontractors.
12.3 Each party’s obligations pursuant to this Section 12 are expressly conditioned on the party seeking indemnification providing the indemnifying party with (i) prompt written notice of all indemnifiable claims, and (ii) sole control over, and reasonable cooperation with, the defense and/or settlement of all indemnifiable claims; provided that the indemnifying party may not settle any Claim or otherwise enter into any agreement imposing any obligation or admission of fault on the indemnified party (that is not fully covered by an indemnification obligation hereunder). Neither party shall be obligated to indemnify the other party in case that claims are a result from the other party’s gross negligence or willful misconduct.
13.1 Disclaimer of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DIRECTMAILER OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF THESE DAMAGES.
13.2 Cap on Damages. EACH PARTY AND THEIR RESPECTIVE SUPPLIERS’ TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO DIRECTMAILER FOR THE APPLICABLE DIRECTMAILER SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, DIRECTMAILER’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE FIFTY U.S. DOLLARS ($50 US).
13.3 Exceptions. NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 13 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION 13. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 13 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13.4 Failure of Essential Purpose. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 13 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY DIRECTMAILER SERVICE OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
DirectMailer may provide, or third parties may provide, links to other third-party websites, services, or resources that are beyond our control. DirectMailer is not responsible for these third-party products or content. DirectMailer makes no representations or warranties as to the quality, suitability, functionality, or legality of any third-party products or third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such. Customer agrees that DirectMailer is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third-party products or third-party content.
15.1 Assignment. These Terms will bind and inure to the benefit of each party’s permitted successors and assigns. Customer may not assign these Terms without the advance written consent of DirectMailer. Any attempt to transfer or assign these Terms except as expressly authorized under this Section 15.1 will be void.
15.2 Notices. Any notice or communication under these Terms must be in writing. Customer must send any notices under these Terms (including breach notices) to DirectMailer, in English, at the following address, [email protected], and include “Attention: Legal Department” in the subject line. DirectMailer may send notices to the email addresses on Customer’s account or, at DirectMailer’s option, to Customer’s last-known postal address. DirectMailer may also provide operational notices regarding the DirectMailer Service or other business-related notices through conspicuous posting of the notice on DirectMailer’s website or the DirectMailer Service. Each party consents to receiving electronic notices. DirectMailer is not responsible for any automatic filtering Customer or its network provider may apply to emails.
15.3 Publicity. Unless otherwise specified in the applicable Order Form, DirectMailer may use Customer’s name, logo, and marks to identify Customer as a DirectMailer customer on DirectMailer’s website and other marketing materials.
15.4 Subcontractors. DirectMailer may use subcontractors and permit them to exercise the rights granted to DirectMailer in order to provide the DirectMailer Service and related services. These subcontractors may include, for example, DirectMailer’s hosting services and print partners. However, subject to all terms and conditions of these Terms, DirectMailer will remain responsible for: (i) compliance of its subcontractors with the terms of these Terms; and (ii) the overall performance of the DirectMailer Services if and as required under these Terms.
15.5 Subpoenas. Nothing in these Terms prevents DirectMailer from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but DirectMailer will use good faith efforts to notify Customer where permitted to do so.
15.6 Independent Contractors. The parties to these Terms are independent contractors, and these Terms does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. Non-parties do not benefit from and cannot enforce these Terms. There are no third-party beneficiaries to these Terms. Customer must not represent to anyone that it is an agent of DirectMailer or is otherwise authorized to bind or commit DirectMailer in any way without DirectMailer’s prior written authorization.
15.7 Force Majeure. Neither party will be liable for any delay or failure to perform its obligation under these Terms (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, epidemic regardless of geographic location, or government act.
15.8 Export Control. Customer acknowledges that the DirectMailer Services, documentation, website, and all related products, information, technology, and software are subject to export control laws and regulations of the United States (including, but not limited to, the US Export Administration Act, sanction regulations from the U.S. Department of Treasury Office of Foreign Assets Control [“OFAC”]), and of other jurisdictions. Customer is responsible for obtaining any required export or import authorizations for use of the DirectMailer Services. Customer represents and warrants that it, its affiliates, and its Authorized Users are not on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country. Customer must not access or use the DirectMailer Service in violation of any U.S. export embargo, prohibition or restriction.
15.9 Mandatory Arbitration; Waiver of Class Actions. If Customer is based in the United States, Customer also agree to the following mandatory arbitration provisions: