This agreement (the “Agreement”) is entered into between BEE Content Design, Inc., a Delaware corporation (“BCD”), acting for and on behalf of itself and each of its Affiliates, and the user (the “User”). BCD and User individually also the “Party”, and collectively, the “Parties.”
I. BCD is a company specialized in the digital marketing and digital communications sector;
II. BCD has developed a software called Beefree Web Builder, which is an online email editor (the “Software”);
III. User wishes to procure from BCD the Software, and BCD wishes to provide such Software to User, each on the terms and conditions set forth in this Agreement;
IV. By using the Software, User agrees to comply with and be bound by this Agreement;
Now therefore, the parties agree as follows
1. Recital, exhibits and external links
The recitals, the exhibits and the external links to the Agreement constitute an integral and substantive part hereof.
When used in this Agreement, the following terms in capital letters shall have the meaning stated in this section.
means any person, corporation, or other legal entity that, directly or indirectly, controls, is controlled by, or is under common control with BCD. For this purpose, “control” shall mean (i) possession, direct or indirect, of the power to direct or cause direction of the management and policies of a party, whether through voting securities, by contract or other means; and/or (ii) ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding equity or voting shares of a party.
means these terms and conditions.
- Harmful Code
means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent User from accessing or using the Software as intended by this Agreement.
- Intellectual Property
means all current and future worldwide copyright, patents, utility models industrial designs, trademarks, domain names, database right and other intellectual property rights, whether or not capable of registration, whether or not registered, and applications of any of the foregoing and all intellectual property rights whether now known or created in the future.
- Send Test
An email testing feature included in the Software for the purpose of sending an email message to themselves or an email testing service to review the content or rendering of the message in different email programs.
Subject to and conditioned on User’s compliance with the terms and conditions of this Agreement, BCD shall use commercially reasonable efforts to provide to User a limited, non-exclusive and non-transferable license to use the Software.
User accepts that:
a. BCD cannot and does not represent that the Software will work as User desires, since the effectiveness of the Software depends, in large part, on User;
b. BCD shall have the right at any time to change or discontinue any aspect or feature of the Software, including, but not limited to, content, hours of availability, equipment needed for access or use, fees and charges for use.
3.3 Reservation of Rights.
Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to the Software, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Software are and will remain with BCD and its licensors.
4. Use Policy
User shall not access or use the Software except as expressly permitted by this Agreement. Any use of the Software shall be deemed an acceptance by User of this Agreement, and any subsequent amendments thereof. For purposes of clarity and without limiting the generality of the foregoing, User shall not, except as this Agreement expressly permits:
- Directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to access the source code of the Software, or underlying structure, ideas, or algorithms of the Software or any software, documentation, or data related to the Software; modify, translate, or create derivative works based on the Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Software; rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software to any person, including on or in connection with the use of Software for timesharing or service bureau purposes, software as a service, cloud or other technology or service; or otherwise for the benefit of a third party unless specifically authorized by BCD;
- Bypass or breach any security device or protection used by the Software;
- Remove or alter the BCD’s trademarks, or any trademark, copyright or other proprietary notices, legends, symbols or labels in the Software;
- Use the Software in connection with sending unsolicited email messages, also known as spamming or engaging in other unlawful activities such as phishing. Any attempt to use the Software for the purpose of sending solicited or unsolicited bulk or transactional email will result in immediate termination of this Agreement;
- Without limiting the generality of the foregoing provision, use of the Send Test feature for sending bulk or transactional email is prohibited. The Send Test feature is intended strictly and only for the purpose of sending a test message. Test sending is limited in the number of messages that can be sent at the same time and within a period of time (such limits may change).
- Address test sending to e-mail addresses which, although corporate, refer to natural persons (e.g. ): the User shall send test messages exclusively to generic and not personal email addresses (e.g. );
- Communicate or disseminate any personal data and information by inserting those personal data and information in the sent test messages;
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others;
- Distribute or disseminate any information or materials that are inappropriate, profane, defamatory, obscene, indecent, unlawful or injurious, or contain, transmit or activate any Harmful Code;
- Use the Software to upload, or otherwise make available, files that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright, trademark or privacy laws unless User owns or controls the rights thereto or has received all necessary consent to do the same;
- Use any material or information, including images or photographs, which are made available through the Software in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any third party;
- input, upload, transmit or otherwise provide to or through the Software, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
- Falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of the Software or other material contained in a file that is uploaded;
- Violate any applicable laws or regulations.
5. Representations and Warranties
5.1 Warranties by User
User represents and warrants that:
- It has the full power to enter into and fully perform this Agreement.
- User’s services, products, materials, contents of the messages, data, and information used by User in connection with this Agreement and the Software will not operate in any manner that would violate any applicable law or regulation.
In the event of any breach, or reasonably anticipated breach, of any of User’s warranties herein, in addition to any other remedies available at law or in equity, BCD will have the right to immediately suspend the access and use of the Software, in BCD’s sole discretion, if deemed reasonably necessary by BCD to prevent any harm to BCD or its business.
5.2 Warranties by BCD
BCD represents and warrants that:
- it has the full power and authority to enter into and fully perform this Agreement.
- it owns or controls all right, title, and interest in and to all Intellectual Property rights therein, necessary to carry out its obligations hereunder and to grant and assign any rights and licenses granted to User herein.
EXCEPT FOR THE FOREGOING, THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS, AND USER’S USE OF THE SOFTWARE IS AT ITS OWN RISK. BCD DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BCD DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. WITHOUT LIMITING THE FOREGOING, BCD MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN USER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
6. SLA & Support
6.1 Service Level
BCD will not provide any service level agreements.
BCD will not provide any support to User, but online manuals and other documentation will be available at http://help.beefree.io. Furthermore, technical information is available on the online community at http://help.beefree.io/hc/communities/public/topics.
7. Ownership of the Software
All right, title and interest in and to the Software, including all Intellectual Property Rights therein, are and will remain with BCD or BCD licensor’s, as applicable. User has no right, license or authorization with respect to any of the Software except as expressly set forth in Section 3. All other rights in and to the Software are expressly reserved by BCD and its third-party licensors.
8. Data Protection.
- Each Party undertakes to comply with the data protection legislation applicable at the time and place and to process all personal data and information of the other Party, its legal representatives and/or employees and/or collaborators to which it may have access in the context of the conclusion and execution of this Contract, solely for specified and legitimate purposes.
- User acknowledges that during the performance of this Agreement, BCD does not process personal data and information on behalf of User as a Data Processor, but it acts autonomously as Data Controller establishing the purposes and means of the processing operations.
- User hereby accepts that BCD may process and store for statistical, legal and quality analysis all data deriving from User’s use of the Software. User acknowledges and accepts that BCD may use such data in order to contribute to the effective improvement of the Software functioning and the production of statistical information that may be published by BCD in aggregate form. BCD, as owner of these aggregated data, will assure the full anonymization of the analyzed data to avoid any processing and diffusion or communication of personal data of User.
User recognizes that BCD is always innovating and finding ways to improve the Software with new features and services. Therefore, User agrees that the Software may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Software.
10. Force Majeure
BCD may not be deemed in any way liable for the failure to perform this Agreement caused by factors falling outside its reasonable control (a “Force Majeure Event”) including by way of example and without any limitation, acts of God, uprisings, acts of terrorism and war, strikes, labor stoppages or slowdowns or other industrial disturbances, riots, tornadoes, hurricanes, floods, mudslides and landslides, fire, earthquake or explosion, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, passage of law or any action taken by a governmental or public authority, or national or regional shortage of adequate power or telecommunications or transportation.
Unless otherwise provided in this Agreement, any notice or communication under this Agreement shall be in writing, and shall be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier; (c) when sent, if by e-mail, with confirmation of transmission and shall be sent to BCD at the address indicated at the following page: https://beefree.io/contact
12. Validity of amendments and supplements
BCD may unilaterally amend or supplement this Agreement. All amendments or supplements will be effective from the moment in which BCD makes available the new version of this Agreement on the Website. Any subsequent use of the Software shall be deemed an acceptance by Client of the same amendments and/or supplements.
13.1 Entire agreement
This Agreement, including the external links which constitute an integral part hereof, abrogates and supersedes all previous agreements, understandings and negotiations, whether written or oral, between the Parties concerning the subject matter of this Agreement.
No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If one or more of the clauses of this Agreement is declared null and void or unenforceable by the competent court of law, the remaining clauses of this Agreement shall continue to be valid and effective between the Parties, unless such clause constituted a determinant reason for the conclusion of this Agreement.
The headings contained in this Agreement or in any exhibit or schedule hereto, or linked document, as applicable, are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
13.5 No relationship
The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
14. Governing Law, Venue and Jurisdiction
This Agreement shall be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State. Each party hereto irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of California, San Francisco County, or (b) the United States District Court for the Northern District of California, for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby or thereby. Each of Client and BCD agrees to commence any such action, suit or proceeding either in the United States District Court for the Northern District of California or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Superior Court of the State of California, San Francisco County. Each of Client and BCD further agrees that service of any process, summons, notice or documents by U.S. registered mail to such party’s respective address set forth above shall be effective service of process for any action, suit or proceeding in California with respect to any maters to which it has submitted to jurisdiction in this Section. Each of Client and BCD irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby and thereby in (i) the Superior Court of the State of California, San Francisco County, or (ii) the United States District Court for the Northern District of California, and hereby and thereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. The prevailing party in any such litigation shall be entitled to reimbursement of reasonable attorneys’ fees and court costs.