Last modified January 3rd, 2022.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
MailGraf allows Users to provide personalized marketing and send email campaigns to current and prospective customers (collectively, “Customers”) through a marketing automation platform that monitors and manages your marketing efforts.
This is a contract between you and MailGraf Digital. You must read and agree to these terms before using MailGraf. If you do not agree to the terms and conditions of this Agreement, you do not have our permission to use MailGraf. You may use MailGraf only if you can form a binding contract with MailGraf Digital, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to MailGraf by anyone under eighteen (18) years of age is strictly prohibited and in violation of this Agreement. MailGraf is not available to any Users previously removed from MailGraf by MailGraf Digital.
Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use MailGraf as permitted by the features of MailGraf. MailGraf Digital reserves all rights not expressly granted herein in MailGraf and the MailGraf Digital Content (as defined below). MailGraf Digital may terminate this license at any time for any reason or no reason.
Your account on MailGraf (your “MailGraf Account”) gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of MailGraf Accounts for different types of Users. If you open a MailGraf Account on behalf of a company, organization, or other entity, then: (i) “you” includes you and that entity; and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf. By connecting to MailGraf Digital with a third-party service, you give us permission to access and use your information from that service as permitted by that service, and to store your log-in credentials for that service.
You may never use another User’s MailGraf Account without permission. When creating your MailGraf Account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your MailGraf Account, and you must keep your MailGraf Account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your MailGraf Account. You must notify MailGraf Digital immediately of any breach of security or unauthorized use of your MailGraf Account. MailGraf Digital will not be liable for any losses caused by any unauthorized use of your MailGraf Account.
You may control your User profile and how you interact with MailGraf by changing the settings in your Settings page. By providing MailGraf Digital your email address you consent to our using the email address to send you MailGraf-related notices, including any notices required by law, in lieu of communication by postal mail. With your consent, we may also use your email address to send you other messages, such as changes to features of MailGraf and special offers. If you do not want to receive such email messages, you may opt out by clicking on the unsubscribe link on the bottom of our emails. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
The person who first completes the MailGraf registration on behalf of any company, entity or organization (“Subscribing Organization”) is the initial “Administrator” for purposes of such Subscribing Organization’s use of MailGraf, and exercises certain options to initially determine the level of access, privacy, and security for MailGraf related to the Subscribing Organization (“Administrator Account“). For example, the Administrator will determine who can be a User of MailGraf under the Subscribing Organization associated with that Administrator and the level of privileges that such Users will possess. Once initial registration has been completed, each Subscribing Organization will be able to register additional Administrators). Each Administrator may designate other Users as additional and/or successor Administrators; provided that, each Administrator is responsible for confirming that those person(s) accept such responsibility. Upon becoming an Administrator, each person will be deemed to agree to the obligations hereunder. In addition, any person designated as the billing contact in the billing record for a Subscribing Organization will be deemed to assume the rights and obligations of an Administrator. Administrator Accounts must comply in all respects with all terms and conditions applicable to MailGraf Accounts.
You may choose to allow MailGraf Digital to automatically retrieve data from your system(s) or third-party systems or services on your behalf. You hereby represent and warrant that you have the permission, authority, and rights to allow MailGraf Digital to so automatically access such system(s) and services and you hereby grant MailGraf Digital permission to access such system(s) and services and retrieve Customer Data (as defined below) therefrom by indicating the same within your MailGraf Account. MailGraf Digital disclaims any and all liability associated with accessing and retrieving Customer Data from such system(s) and services on your or your Subscribing Organization’s behalf. In order to connect MailGraf with any third-party service, you hereby designate MailGraf Digital as your agent and attorney-in-fact in connection with such service and further authorize is to: (a) store your Customer Data relating to such service; (b) access such service using Customer Data you provide us; (c) use any materials you provide us in order to provide you MailGraf; (d) gather and export from such service any Customer Data reasonably necessary for us to provide MailGraf to you; and (e) otherwise take any action in connection with such service as is reasonably necessary for us to provide MailGraf to you. You agree that those third-party service providers are entitled to rely on the foregoing authorization, agency, and power of attorney granted by you. If at any time you do not have the right and authority to allow MailGraf Digital automatic access to such system(s), then you hereby agree to immediately disable such functionality within your MailGraf or Administrator Account.
It’s simple; don’t use MailGraf to do anything illegal, harmful or spammy. By spammy we mean the definition outlined at Spamhaus.
Additionally you agree not to: (a) use MailGraf in any manner to send emails with the following content: offer or suggest any illegal goods, pornography, sexually explicit material, advice, drugs, novelty items, or pharmaceutical information or products, credit repair services or opportunities, prostitution or illegal escorts, free product/free sample giveaways, claim your money/benefit/assistance or similar, excessive third-party promotions, and “get rich quick” or similar content; (b) use MailGraf in any manner to repeatedly import, send, and delete Customers from an account; (c) use MailGraf in any manner to contact your Customers at such a rate that your bounce, abuse, or unsubscribe rates move above MailGraf’s acceptable use limits; or (d) use MailGraf to send email or text messages to Customers who have not explicitly opted in to hear from you (including, without limitation, purchased Customers, purchased lists, or Customers attained through co-registration (where a Customer is added to your list from filling out a form on a different website)).
In order to maintain strong deliverability for our customers the following categories are allowed but subject to additional monitoring. Traditionally these have had higher spam and unsubscribe rates so we do it to maintain strong deliverability for our customers.
By using MailGraf, you represent and warrant that you meet all the requirements listed above, and that you won’t use the service in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise. MailGraf may refuse service, close accounts of any users, and change eligibility requirements at any time.
As part of MailGraf, we may send marketing and advertising communications on your behalf to Customers. In connection with such communications and your use of MailGraf, you hereby represent and warrant that: (i) you have all necessary consents, licenses, rights and authorizations for us to send such communications on your behalf; (ii) you will not, either directly or indirectly, direct us to send communications to any person under the age of thirteen (13) years of age (including, without limitation, by including any individual under the age of thirteen (13) in any list of Customers you may provide to us; and (iii) your use of MailGraf (including, without limitation, your provision of User Content, your creation of communications for Customers, collection of Customer lists and contact information, and your instructions for us to send such communications to Customers on your behalf) will be in compliance with any and all applicable laws, rules and regulations, including (without limitation) any data privacy and advertising laws, in each jurisdiction in which you will be sending marketing communications to a resident of the jurisdiction. You agree that, as between the parties, you are the sender of any email message, text message or other communication transmitted through the Service on your behalf. MailGraf Digital is not responsible for reviewing the contents of any communication transmitted through the Services or transmitted by you related to your use of the Service, nor is it responsible for obtaining any necessary consents or permissions from the message recipients.
We may, without prior notice: (i) change MailGraf; (ii) stop providing MailGraf or features of MailGraf, to you or to Users generally; or (iii) create usage limits for MailGraf. We may permanently or temporarily terminate or suspend your access to MailGraf without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
Some areas of MailGraf allow Users to submit, provide, or otherwise make available content such as marketing materials, videos, images, music, text, comments, questions, and other content or information (any such materials a User submits, provides, or otherwise makes available on MailGraf is referred to as “User Content”).
We claim no ownership rights over User Content created by you. The User Content you create remains yours.
For the purposes of this Agreement, “Intellectual Property Rights” means any and all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
In connection with your User Content, you affirm, represent and warrant the following:
MailGraf Digital takes no responsibility and assumes no liability for any User Content that you or any other User submits, provides or otherwise makes available over MailGraf. You shall be solely responsible for your User Content and the consequences of submitting it, providing it, or otherwise making it available on MailGraf, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content.
As part of MailGraf, we may allow you to submit, store and access and we may collect certain Personal Data (as defined below), business data and other information related to your current and potential Customers, including (without limitation) subscriber lists and personalized email content (collectively, “Customer Data”).
By submitting Customer Data to MailGraf Digital, you hereby grant, and represent and warrant that you have all rights necessary to grant, all rights and licenses to the Customer Data required for MailGraf Digital and its subcontractors and service providers to provide MailGraf. MailGraf Digital shall have no right to sublicense or resell Customer Data, except however, that you agree that MailGraf Digital may collect, analyze, and use data derived from Customer Data (including without limitation Personal Data) and/or information collected from or about an individual but which does not identify the individual personally for purposes of operating, analyzing, improving, or marketing MailGraf and any related services. If MailGraf Digital shares or publicly discloses information (e.g., in marketing materials, or in application development) that is derived from Customer Data, such data will be aggregated or anonymized such that a specific individual is no longer identifiable. You further agree that MailGraf Digital will have the right, both during and after the term of this Agreement, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data. You may request that MailGraf Digital delete Customer Data at any time, but agree that MailGraf Digital will have no obligation to delete information or data which is de-identified and does not reasonably identify any individual or you.
In the event that Customer Data is disclosed to or accessed by an unauthorized party, MailGraf Digital will promptly notify you and use reasonable efforts to cooperate with your investigation of the incident. In the event we have a reasonable, good faith belief that an unauthorized party has accessed Customer Data, we will promptly notify you and will use reasonable efforts to cooperate with your investigation of the incident. If such incident triggers any third-party notice requirements, you (not MailGraf Digital) shall be solely responsible for the timing, content, cost and method of any such notice and compliance with applicable laws. You (not MailGraf Digital) bear sole responsibility for adequate security, protection and backup of Customer Data when in your or your representatives’ or agents’ possession or control. We are not responsible, and you are fully responsible, for what your authorized Users do with Customer Data.
MailGraf Digital will not be responsible for any backup, recovery or other steps required to ensure that Customer Data is recoverable in the case of data loss. You are solely responsible for backing up your Customer Data on a regular basis, and taking appropriate steps to safeguard and ensure the integrity of your Customer Data.
You own all right, title and interest (including all Intellectual Property Rights) in and to Customer Data.
Except for your User Content, MailGraf and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (the “MailGraf Digital”), and all Intellectual Property Rights related thereto, are the exclusive property of MailGraf Digital and its licensors (including other Users who post User Content to MailGraf). Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any MailGraf Digital Content. Use of the MailGraf Digital Content for any purpose not expressly permitted by this Agreement is strictly prohibited.
You may choose to or we may invite you to submit comments or ideas about MailGraf, including without limitation about how to improve MailGraf or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place MailGraf Digital under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, MailGraf Digital does not waive any rights to use similar or related ideas previously known to MailGraf Digital, or developed by its employees, or obtained from sources other than you.
We will charge you fees (Fees) for your use of MailGraf. You agree to pay any and all Fees specified in an ordering document or online order for your access and use of MailGraf (“Ordering Document”). Your Fees are based on the number of Customers you identify for our marketing services OR the number of emails you send to Customers. For the most current information about our pricing and payment, please review our Pricing and Payment Terms, which are incorporated by reference herein. MailGraf Digital may add new services for additional fees and charges, and add or amend fees and charges for existing services, at any time in its sole discretion. If we add or amend our Fees, we will update our Pricing and Payment Terms. Any change to our Pricing and Payment Terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement; provided however that if we have offered a specific duration and Fees for your use of MailGraf, we agree that the Fees will remain in force for that duration.
Unless otherwise provided in an Ordering Document any purchases for access and use of MailGraf are on an automatically renewing subscription basis. YOUR MAILGRAF SUBSCRIPTION WILL COMMENCE UPON THE EFFECTIVE DATE OF THE ORDERING DOCUMENT AND WILL AUTOMATICALLY RENEW AT THE END OF YOUR SUBSCRIPTION TERM IDENTIFIED IN YOUR ORDERING DOCUMENT FOR SUBSEQUENT TERMS EQUAL IN LENGTH TO THE INITIAL SUBSCRIPTION TERM (EACH A “SUBSCRIPTION TERM”) UNLESS AND UNTIL YOU CANCEL YOUR MAILGRAF SUBSCRIPTION IN ACCORDANCE WITH THE CANCELLATION PROCEDURES IDENTIFIED IN SECTION 7.4 OF THIS AGREEMENT. When you purchase MailGraf, you expressly acknowledge and agree that: (1) MailGraf Digital is authorized to charge you at the beginning of each Subscription Term the Fees identified in an Ordering Document, any applicable taxes, and any other charges you may incur in connection with your use of MailGraf, subject to automatic adjustment as described in Section 7.3 of this Agreement, for as long as your subscription continues; and (2) your subscription is continuous until you cancel it or MailGraf is suspended, discontinued or terminated in accordance with this Agreement. You acknowledge and agree that the amount billed may vary due to promotional offers, changes in your subscription plan, changes in applicable taxes, and changes in Fees in accordance with Sections 7.1 and 7.3 and you authorize us to charge your payment method for the changed amounts.
Fees are assessed according to a tier system based on the number of Customers or the amount of emails to be sent to Customers. For the initial Subscription Term, you agree to pay the Fees for the tier you identify in an Ordering Document. For subsequent Subscription Terms, in the event that the actual number of Customers or emails sent to Customers in a Subscription Term exceeds the number of Customers or emails sent to Customers in the previous Subscription Term, your Fees will automatically be increased to the corresponding higher tier and you will be charged the increased Fees for the subsequent Subscription Term. For subsequent Subscription Terms, in the event that the actual number of Customers or emails sent to Customers decreases in the subsequent Subscription Term, then we may automatically reduce your Fees to the corresponding lower tier for the subsequent Subscription Term.
You may cancel your MailGraf Account and/or the MailGraf services at any time, and you will continue to have access to your MailGraf Account and the MailGraf services through the end of your billing period; however, there are no refunds for cancellation. If you cancel your MailGraf Account, your MailGraf Account and the MailGraf services will automatically terminate at the end of your current Subscription Term. To cancel the MailGraf services, you must notify us at least three (3) business days before the start of the next Subscription Term using the appropriate functionalities of MailGraf or by emailing [email protected]. In the event that MailGraf Digital suspends or terminates your MailGraf Account or this Agreement for your breach of this Agreement, you understand and agree that you shall receive no refund or exchange for any unused time on a subscription, any license or subscription fees for any portion of MailGraf, any content or data associated with your MailGraf Account, or for anything else. To the extent there is a conflict or inconsistency between this Section and separate terms and conditions between you and MailGraf with respect to any refunds, downgrades, term length and pricing, such separate terms and conditions shall control.
We or our third-party payment processors (Stripe) will charge your Fees and any other charges you may incur to the payment method you provide when you register for a MailGraf Account or you identify in an Ordering Document. All information that you provide in connection with a purchase or transaction or other monetary transaction interaction with MailGraf must be accurate, complete, and current. You may change your payment method by changing the information in your MailGraf Account. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with MailGraf at the prices in effect when such charges are incurred. If we are unsuccessful in charging your payment method and have still not received payment within seven (7) days after informing you, we may (without liability to you) suspend or temporarily disable all or part of your access to MailGraf and we shall be under no obligation to provide any or all of MailGraf while the Fees concerned remain unpaid. This does not affect any other rights and remedies available to us. You will pay any and all applicable taxes, if any, relating to any such payments of Fees, purchases, transactions or other monetary transactions.
MailGraf Digital uses commercially reasonable physical, managerial, and technical safeguards to preserve the integrity and security of your personal information and implement your privacy settings. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
Since we respect artist and content owner rights, it is MailGraf Digital’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via MailGraf, please notify MailGraf Digital’s copyright agent as set forth in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following DMCA Agent:
MailGraf Digital Ltd d/b/a MailGraf Digital
International House, 61 Mosley St. M2 3HZ, Manchester, United Kingdom
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying MailGraf Digital and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with MailGraf Digital’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, MailGraf Digital has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. MailGraf Digital may also at its sole discretion limit access to MailGraf and/or terminate the MailGraf Accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
You agree to defend, indemnify and hold harmless MailGraf Digital and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to MailGraf, including any data or content transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (d) your violation of any applicable law, rule or regulation; (e) User Content or any content that is submitted via your MailGraf Account including without limitation misleading, false, or inaccurate information; (f) your willful misconduct; or (g) any other party’s access and use of MailGraf with your unique username, password or other appropriate security code.
MailGraf is provided on an “as is” and “as available” basis. Use of MailGraf is at your own risk. To the maximum extent permitted by applicable law, MailGraf is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. No advice or information, whether oral or written, obtained by you from MailGraf Digital or through MailGraf will create any warranty not expressly stated herein. Without limiting the foregoing, MailGraf Digital, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that MailGraf will meet your requirements; that MailGraf will be available at any particular time or location, uninterrupted or secure; that any defects or errors will be corrected; or that MailGraf is free of viruses or other harmful components. Any content downloaded or otherwise obtained through the use of MailGraf is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of MailGraf.
Further, MailGraf Digital does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party through MailGraf or any hyperlinked website or service, and MailGraf Digital will not be a party to or in any way monitor any transaction between you and third-party providers of products or services.
To the maximum extent permitted by applicable law, in no event shall MailGraf Digital, its affiliates, agents, directors, employees, suppliers or licensors be liable for any indirect, punitive, incidental, special, consequential or exemplary damages, including without limitation damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, MailGraf. Under no circumstances will MailGraf Digital be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of MailGraf or your account or the information contained therein.
To the maximum extent permitted by applicable law, MailGraf Digital assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein; (iv) any interruption or cessation of transmission to or from MailGraf; (v) any bugs, viruses, trojan horses, or the like that may be transmitted to or through our service by any third party; (vi) any errors or omissions in any content or for any loss or damage incurred as a result of the use of any content posted, emailed, transmitted, or otherwise made available through MailGraf; and/or (vii) User Content or the defamatory, offensive, or illegal conduct of any third party. In no event shall MailGraf Digital, its affiliates, agents, directors, employees, suppliers, or licensors be liable to you for any claims, proceedings, liabilities, obligations, damages, losses or costs in an amount exceeding the amount you paid to MailGraf Digital hereunder or $100.00, whichever is greater.
This limitation of liability section applies whether the alleged liability is based on contract, tort, negligence, strict liability, or any other basis, even if MailGraf Digital has been advised of the possibility of such damage.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. This Agreement gives you specific legal rights, and you may also have other rights which vary from state to state. The disclaimers, exclusions, and limitations of liability under this Agreement will not apply to the extent prohibited by applicable law.
You agree that: (i) MailGraf shall be deemed solely based in London; and (ii) MailGraf shall be deemed a passive service that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than London. This Agreement shall be governed by the internal substantive laws of the State of London, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in, London for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that , London is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from MailGraf Digital. For any dispute with MailGraf Digital, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that MailGraf Digital has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in , London, unless you and MailGraf Digital agree otherwise. If you are using MailGraf for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using MailGraf for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing MailGraf Digital from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
With respect to all persons and entities, regardless of whether they have obtained or used MailGraf for personal, commercial or other purposes, all Claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s Claims. You agree that, by entering into this Agreement, you and MailGraf Digital are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
You and MailGraf Digital agree that any cause of action arising out of or related to MailGraf and/or your use thereof must commence must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by MailGraf Digital without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
MailGraf Digital may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by MailGraf Digital in our sole discretion. MailGraf Digital reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement. MailGraf Digital is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. MailGraf Digital may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change the Agreement in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to the Agreement. Your continued use of MailGraf after any such change constitutes your acceptance of the new Terms and Conditions. If you do not agree to any of these terms or any future Terms and Conditions, do not use or access (or continue to access) MailGraf.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and MailGraf Digital’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
Please contact us at [email protected] with any questions regarding this Agreement.
This Agreement, together with any amendments and any additional agreements you may enter into with MailGraf Digital in connection with MailGraf, shall constitute the entire agreement between you and MailGraf Digital concerning MailGraf. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.