These Terms of Service form a contract between you (the “User” or “you”) and Emailgistics Corp., a corporation formed under the laws of the Province of Ontario, Canada (“the Corp,” “we,” “our,” and “us”). By using the Corp’s services on the internet, within Office 365 or through any other app or platform that gives access to Emailgistics,  you (you as an individual and/or the entity you represent) agree to be bound by the following terms of use (the “Terms of Use”) whether or not you register as a paid subscriber.

By accepting these Terms of Use, the Corp and the User agree to be bound by the terms set forth in these Terms of Use. The User acknowledges that these Terms of Use may be amended, varied or modified by the Corp from time to time by posting an updated form of these Terms of Use on Emailgistic’s web site and providing notice to the User of such posting, and such new Terms of Use shall become binding on the User once posted.

Account Terms and Eligibility

The User must be a human. Accounts registered by bots or other automated methods and devices are not permitted. To register for Emailgistics, the User must provide a valid permanent email address, along with any other information required by the Corp during the registration process. The Corp may communicate with the User by email, phone, text message or other notification medium to pass on information or requests concerning your account, payment, system and feature changes, and other relevant communications.

The User are responsible for maintaining the security of the User’s Emailgistics account and password. The Corp is not liable for any loss or damage resulting from the User sharing the User’s billing or account administrator login details or the User’s failure to comply with account security obligations.

Personally identifying information submitted by the User in the course of registration or administration of the User’s account will be held and managed in accordance with the Corp’s privacy policy.

The User may not use Emailgistics for any illegal or unauthorized purposes. The User must not, in the course of using Emailgistics, violate any laws or regulations in the User’s jurisdiction, including but not limited to copyright laws and laws relating to the distribution of harmful or illegal material. The User is responsible for all content sent by or to the User’s Emailgistics account.

Grant and Payment

Pursuant to the terms set out in these Terms of Use, the Corp hereby grants to the User a non-exclusive and non-transferrable license to use the Corp’s online software applications known collectively as Emailgistics (“Emailgistics”). The term “Emailgistics” herein shall also include any upgrades, modified versions, bug fixes or updates of Emailgistics. The license granted to the User hereunder to use Emailgistics is limited as follows:

  • the User may use Emailgistics solely for the internal business purposes of the User;
  • without the prior written consent of the Corp, the User shall not provide, rent, lease, lend, use for timesharing, application service provider or service bureau purposes, or otherwise use or allow others to use Emailgistics for their own benefit or for the benefit of third parties;
  • the User shall not modify, adapt, translate, incorporate into or with other software, or create a derivative work of any part of Emailgistics;
  • the User shall not disclose the results of any benchmarking of Emailgistics, or use such results for its own competing software development activities;
  • the User shall not decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of Emailgistics by any means whatever.

In consideration of the grant of license contained in these Terms of Use, the User agrees to pay the Corp all subscription fees properly set out in the invoices provided by the Corp to the User, in the manner and upon the timing described therein.

All stated charges and fees are exclusive of and do not include any taxes, duties, or similar charges imposed by any government.  The User agrees to pay or reimburse the Corp for all federal, state, dominion, provincial, or local sales, VAT, use, personal property, import, export, excise or other taxes, fees, or duties arising out of these Terms of Use or the transactions contemplated by these Terms of Use.  If the User fails to make any payment when due, the Corp may suspend or restrict access to Emailgistics until the past due payment is made.

Intellectual Property Rights

Emailgistics is owned by the Corp, and its structure, organization and code are the exclusive intellectual property and valuable trade secrets of the Corp. All intellectual property rights in and to Emailgistics are the sole and exclusive property of the Corp. Except the right to use Emailgistics as specifically stated above, the User is not granted any other rights in Emailgistics.

Software Warranty

The Corp warrants to the User during the period in which the User is paying for the subscription to Emailgistics and is up-to-date in the payment of all subscription fees (“Warranty Period”) that Emailgistics will be free from defects and will operate substantially in accordance with the related documentation. If User discovers an error during the Warranty Period, User shall promptly notify the Corp of such error and provide the Corp with sufficient information in written or electronic form so that the Corp can reproduce such error.  The Corp’s sole liability and User’s exclusive remedy with respect to breach of this limited warranty shall be limited to providing an error correction, or if same is not commercially feasible, refunding the subscription fees received for the non-conforming software provided the User thereafter discontinues all use of such software.

The Corp does not warrant the performance or the results the User may obtain by using Emailgistics. The Corp stores no data of the User on the Corp’s computer systems. The User acknowledges that there is a risk that data can be damaged or corrupted and there is no guarantee that such damage or corruption can be reversed or recovered from. The User shall be responsible for backing up its own data and the costs of restoring such data from any backup.

The User acknowledges that Emailgistics interacts with other software and databases operated by Microsoft (“Microsoft”). The User acknowledges that the Corp is not responsible in any manner for the performance of Emailgistics or any issues of accessibility to the extent same are caused by any changes by Microsoft to its application programming interface.

Limitation of Liability

Other than as set out herein, the Corp makes no representations, warranties or conditions, express, statutory or implied, with respect to Emailgistics, Emailgistics documentation or any services to be provided by the Corp hereunder.  The Corp expressly disclaims all other representations, warranties or conditions, including without limitation any implied or statutory warranties or conditions of merchantability, title, non-infringement or fitness for a particular purpose.  The Corp does not warrant that Emailgistics will meet the User’s requirements nor that it will function uninterrupted, error free or that all defects in Emailgistics will be corrected.  The Corp makes no representation or warranty regarding accessibility to, or the privacy or security of, any of the User’s information, files or data.  The User assumes the entire risk as to the results and performance of Emailgistics.  The User acknowledges that it has or will have independently determined that Emailgistics meets its business requirements and that it has not relied on any representation by the Corp as to the suitability of any item for any particular purpose.  The Corp does not represent or warrant that Emailgistics will be capable of achieving any particular result or results in the User’s business or operations.  Except as expressly stated otherwise in these Terms of Use, Emailgistics is provided and licensed on an “as is” basis without warranty or representation of any kind.

Notwithstanding anything herein contained to the contrary, in no event whatsoever will the Corp, its directors, officers, employees, agents, contractors or affiliates, be liable for any claim for (i) punitive, exemplary or aggravated damages (ii) damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of computer resources or any stored data (iii) indirect, consequential or special damages of any kind (iv) contribution, indemnity  or set-off in respect of any claims against the User by any third party (v) any damages whatsoever related to any software that is not designed or manufactured by the Corp or any computer hardware; or (vi) any damages whatsoever relating to interruption, delays, errors or omissions, or costs of procurement of substitute goods or services.

Without limiting the generality of the foregoing, the maximum total liability of the Corp, and its directors, officers, agents, representatives, shareholders and employees, for any claim whatsoever, under any circumstances, regardless of the cause of action and including without limitation claims for breach of contract, tort, negligence or otherwise, and the User’s sole remedy therefore, shall be strictly limited to amount not to exceed the amount of subscription fees, if any, paid by the User to the Corp hereunder during the one (1) year period immediately preceding the date of such claim. Notwithstanding anything herein contained to the contrary, no action arising out of or relating to these Terms of Use, or the Corp’s obligations hereunder, regardless of form, may be brought by the User more than twelve (12) months after the facts giving rise to the cause of action are known to the User. The parties agree that the foregoing limitations are reasonable in scope and that the terms and conditions of these Terms of Use have been negotiated taking into account such limitations.

Term and Termination

Subject to the termination provisions herein, these terms and conditions will remain in full force and effect while you use Emailgistics. You may terminate your subscription at any time, for any reason by following the termination procedures as set out by the Corp or upon receipt by the Corp of notice of termination from you in writing or by email. The Corp may terminate your subscription for any reason at any time without notice to you. If the Corp terminates your subscription to Emailgistics for breach of these Terms of Use, or if you terminate your subscription for any reason, you will not be entitled to any total or partial refund of any fees relating to your subscription or use of Emailgistics.  Following termination of these Terms of Use for any reason whatsoever, you agree to remain bound by those terms and conditions of these Terms of Use intended to survive its termination.

Governing Law and General Provisions

These Terms of Use will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, excluding the application of its conflicts of law rules. These Terms of Use will not be governed by the United Nations Convention On Contracts For The International Sale Of Goods, the application of which is expressly excluded.

If any part of these Terms of Use is found void and unenforceable, it will not affect the validity of the balance of these Terms of Use, which shall remain valid and enforceable according to its terms.

The termination of expiration of these Terms of Use will not affect the survival and enforceability of any provision of these Terms of Use which is expressly or impliedly intended to remain in force after such termination or expiration. Notwithstanding the generality of the foregoing, the sections with respect to the limitations on the grant to use Emailgistics, ownership of intellectual property and limitation of liability shall survive any termination of these Terms of Use.

Time shall be of the essence in connection with these Terms of Use.

Each of the parties to these Terms of Use agrees that it will promptly do, make, execute or deliver, or cause to be done, made, executed or delivered, all such further acts, documents and things as the other party hereto may reasonably require from time to time for the purpose of giving effect to the provisions of these Terms of Use and will use reasonable efforts and take all such steps as may be reasonably within its power to implement to their full extent the provisions of these Terms of Use.

These Terms of Use shall enure to the benefit of, and be binding upon, the parties hereto and their respective heirs, executors, estate trustees, personal legal representatives, successors, affiliates and permitted assigns.

The Corp will have no obligation to perform its obligations hereunder to the extent and for the period that the Corp is prevented from doing so by reason of force majeure or any cause beyond its reasonable control, including without limitation the inability to use or the failure of any third party telecommunications carrier or other services.

These Terms of Use and the software subscription referenced herein sets forth the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements.  There are not and shall not be any oral statements, representations, warranties, undertakings or agreements between the parties. Where any term or provision contained in these Terms of Use conflicts with any term or provision contained in any click-through version of these Terms of Use relating to Emailgistics, or where ambiguity exists or arises between such terms or provisions, then the terms or provisions contained in these Terms of Use shall, to the extent of such conflict or ambiguity, govern and prevail.