Terms of Use

Welcome! Please take a moment to scroll down and read these Terms of Use (Last updated: March 24, 2015).

You have elected to access and use the Persado, Inc. ("Persado," "we," "us," or "our") web application (the "App"). The App is licensed to you by Persado under these terms and conditions ("Terms""). PLEASE READ THESE TERMS CAREFULLY BEFORE YOU CHECK THE "I AGREE TO ALL TERMS OF USE & PRIVACY POLICY" CHECKBOX BELOW OR PROCEED WITH THE USE OF THIS APP BECAUSE IT CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN YOU AND PERSADO.

If you do not agree to these Terms, do not use the App. Your electronic acceptance or your activation or use of the App constitutes your acceptance of these Terms. Your electronic acceptance of the Terms shall have the same force and effect as if you had actually signed these Terms.

We may change these Terms from time to time. If we have your current email address, we will email you to notify you of the changes. If you are a registered user, you will be asked to click to accept the new agreement the next time you log on to the App in order to be able to continue to use the App. We will also put any revised versions of this Agreement on the App with a notice advising of the change. It is therefore important that you regularly check the App for any announcements about revisions and keep your contact information current to ensure you are informed of any changes.

Description and use of the App

The App. The App enables you to create and send online marketing email messages for your campaign (“Campaign”) and obtain detailed reporting and analysis about the online messages your customers respond to (“Campaign Analytics Data”). In order to set up a Campaign, you will have to provide detailed information about your Campaign such as the description of the Campaign, your industry, the type of audience you are targeting, the marketing message you are sending, the type of offer you are providing through the campaign, description (s) of the product, sample size you want to use for the Campaign, and expected improvement (collectively, the “Campaign Information”). Your use of the App involves sending us certain information such a name or email address that, without more, can be directly associated with a specific person or entity (“Personal Information”). Our policies with respect to the collection and use of such Personal Information are set forth in our Privacy Policy, which may be updated from time to time.

Your Account. You will need to register for the App with your name and contact information. You represent and warrant that all registration information that you submit is truthful and accurate, and you will maintain the accuracy of such information. You are solely responsible for the confidentiality of your account, as well as for any use and misuse of the App made using your account.

Salesforce Marketing Cloud. The App is made available to you through the Salesforce Marketing Cloud platform (“SFMC”). You expressly permit Persado to access and use certain data including without limitation Personal Information, stored in your SFMC account (“SFMC Account Data”) as necessary for us to provide you with the intended functionality of the App. You retain all ownership of any intellectual property rights in and to the SFMC Account Data. You represent and warrant that: (a) the SFMC Account Data provided through your account is legal and does not infringe on any intellectual property, privacy, publicity, contract or other proprietary rights of any third party; (b) you either own, or have a sufficient license to, all SFMC Account Data provided through your account; (c) you have fully complied with any third-party licenses relating to all SFMC Account Data; and (d) the SFMC Account Data does not include information about anyone under 13. We do not own or control SFMC. We do not have any responsibility or liability with respect to, any transaction, communication or interaction between you and SFMC or between you and other users of SFMC, or for any results caused by using the SFMC. We are not responsible for the maintenance or content of the SFMC. Please refer to the terms of use and privacy policies of SFMC for more information.

Fees. The basic version of the App is currently provided to you for free. We reserve the right to begin charging fees at any time upon notice to you. Full access to premium features in the App is available for a fee, subject to your agreement to additional payment terms.

Prohibited Uses. By accessing and/or using the App, you hereby represent and warrant that:

You will not use the App or related services for any unlawful purpose;
Your use of the App and related services does not violate any applicable law, rule, regulation or contract;
You will not use the App to develop, post or submit advertisements that (a) are defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable, (b) incite, encourage or threaten immediate physical harm against another, including but not limited to, materials that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual or (c) contain material that solicits personal information from anyone under 13 or exploits anyone in a sexual or violent manner;
You will not use the App or related services for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of or linking to this App without our express written consent;
You will not impersonate any person or entity, sell or let others use your profile password, invade the privacy or violate the personal or proprietary right of any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity; and
You will not create an undue burden on this App or the networks or services connected to this App interfere with or attempt to interrupt the proper operation of the App.

The App is intended to be used by individuals that are age 18 years or older. We make no claims concerning whether the App or any content, functions or materials made available to you through the App may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the App from outside of the United States, you do so at your own risk.

Licenses and Ownership

License to use the App. Subject to the terms and conditions of these Terms, we grant you a limited, non-exclusive, non-sublicenseable, non-transferable license to access and use the App during the term of your subscription agreement. You must not: (a) modify, copy, distribute or transfer the App, (b) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of the App; or (c) introduce into the App any virus or harmful code.

License to SFMC Account Data and Campaign Information. You grant us a perpetual, irrevocable, non-exclusive, worldwide, fully paid-up, royalty-free, sublicensable, and transferable license to use, modify, create derivative works of, perform, display, reproduce and distribute your SFMC Account Data and Campaign Information as reasonably necessary for us to provide you with the intended functionality of the App.

Ownership. We own and will continue to own all right, title, and interest in and to (a) the App, including, without limitation, all source code, object code, operating instructions, and interfaces developed for or relating to the App and all intellectual property rights therein; (b) all modifications, enhancements, revisions, changes, copies, copies, translations, compilations, improvements, and derivative works of the foregoing, and all intellectual property rights therein; and (c) the Campaign Analytics Data, feedback we receive from you in connection with the Campaign or Campaign Analytics Data, and any other content and materials we make available through the App (other than subject lines for users of the premium version of the App) and all copyrights, trademarks, patents, trade secrets, and other proprietary or intellectual property rights therein (collectively, the “Persado Content”). Except as expressly permitted in these Terms, you have no rights in or to any Persado Content. You own all right, title and interest in and to the Campaign Information other content that you submit through the App and for premium App users, any subject lines generated.

Disclaimers

ALL CAMPAIGN INFORMATION AND SFMC ACCOUNT DATA IS PROVIDED BY YOU. PERSADO, ITS AFFILIATES, LICENSORS, SUPPLIERS, SERVICE PROVIDERS, OTHER CONTRACTORS, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, INVESTORS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “PERSADO PARTIES”) DO NOT ENDORSE OR RECOMMEND ANY CAMPAIGN. NONE OF THE PERSADO PARTIES HAS ANY LIABILITY WITH RESPECT TO ANY CAMPAIGN INFORMATION AND SFMC ACCOUNT DATA THAT YOU PROVIDE OR FOR ANY RESULTS ACHIEVED FROM USING THE APP, ANY MISUSE OF YOUR CAMPAIGN INFORMATION AND SFMC ACCOUNT DATA. WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH THE FOREGOING.

TO THE FULLEST EXTENT PERMITTED BY LAW, THE PERSADO PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED IN CONNECTION WITH THE APP AND YOUR USE THEREOF. TO THE EXTENT PERMITTED BY LAW, THE APP AND THE CAMPAIGN ANALYTICS DATA ARE PROVIDED ON AN "AS IS" AND “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE CAN’T PROMISE UNINTERRUPTED OR ERROR FREE SERVICE. YOU AGREE THAT YOUR USE OF THIS APP AND SERVICES WILL BE AT YOUR SOLE RISK.

SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU IN WHOLE OR IN PART. THE FOREGOING PROVISION WILL SURVIVE TERMINATION OF THESE TERMS.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU WILL LIMIT CLAIMS FOR DAMAGES OR OTHER MONETARY RELIEF AGAINST US TO DIRECT AND ACTUAL DAMAGES. THIS LIMITATION AND WAIVER WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, NEGLIGENCE, PERSONAL INJURY, PRODUCT LIABILITY, INTELLECTUAL PROPERTY INFRINGEMENT, OR ANY OTHER THEORY. THIS MEANS THAT WE ARE NOT LIABLE TO YOU, AND YOU WILL NOT SEEK, AND HEREBY WAIVE ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFIT DAMAGES, FROM THE PERSADO PARTIES. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT THE PERSADO PARTIES WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. IN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF THE PERSADO PARTIES FOR ANY LOSS OR DAMAGES ARISING UNDER THESE TERMS OF USE OR RELATING THERETO, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY, EXCEED ONE HUNDRED DOLLARS ($100).

YOU AGREE WE ARE NOT LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY. EXCEPT TO THE EXTENT PROHIBITED BY LAW, ALL CLAIMS MUST BE BROUGHT WITHIN 1 (ONE) YEAR OF THE DATE THE CLAIM ARISES. THIS PROVISION WILL SURVIVE TERMINATION OF THESE TERMS.

Indemnification

You agree to defend, indemnify, and hold the Persado Parties harmless from and against any and all claims, actions, or demands and related costs, damages and liability, including reasonable attorneys’ fees, in connection with: (a) any content you submit, post or transmit through the App; (b) any violation by you of these Terms; (c) your use of the App; (d) your violation of any third party contracts or applicable laws, regulations, or other rights of any third party, including without limitation any intellectual property or privacy rights; or (e) any claims brought against any Persado Party by SFMC as a result of any of your acts or omissions. This obligation shall survive the termination or expiration of these Terms and/or your use of the App.

Disputes Between Users

You are solely responsible for your conduct. You agree that we cannot be liable for any dispute that arises between you and any other App user.

Term; Termination and Survival

These Terms shall remain in full force and effect while you use the App. You may terminate your use or participation at any time, for any reason, by simply letting us know on hxsupportalpha@mailinator.com. We may terminate these Terms and/or suspend your access to all or any part of the App at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the App at any time without prior notice or liability. Upon termination of your App account for any reason, we will close your account, and you will no longer be able to retrieve materials contained in the account. All sections of the Terms will survive termination except the following section: “License to Use the App.”

Assignment

We may assign in whole or in part our rights or duties under the Terms without prior notice to you and upon such assignment we shall be released from all liability hereunder. You may assign the Terms only with our prior written consent. Subject to this restriction, the Terms shall inure to the benefit of and be binding upon the heirs successors, subcontractors, and assigns of the respective parties.

Notices

If you have any questions about these Terms, please contact us at hxsupportalpha@mailinator.com

Severability

All provisions in these Terms are independent of each other. If any term or provision of these Terms is held to be inapplicable or unenforceable, then such term or provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect, and the balance of the terms and provisions shall remain unaffected and in full force and effect, unless our obligations hereunder are materially impaired, in which event we reserve the right to terminate the Terms.

Governing Law; Venue and Statute of Limitations

These Terms will be governed by and construed in accordance with the laws of the State of New York. Except for proceedings commenced by Persado to protect its intellectual property or confidential information which may be brought in any court of competent jurisdiction, the parties mutually agree that any and all disputes arising hereunder shall be resolved exclusively by state or federal courts located in the borough of Manhattan, New York City, New York. Unless prohibited by law, any controversy, claim or dispute must be brought by you within one (1) year of the date you are entitled to assert any such claim.

Independent Contractors

Nothing in this Agreement shall be deemed to create an agency, partnership, joint venture, employer-employee of franchisor-franchisee relationship of any kind between us and any user.

Entire Agreement

These Terms represent the final and entire agreement between you and us regarding the App. Except as otherwise provided in the Terms, no prior or subsequent handwritten, typed, or oral change to the Terms will be valid unless we accept it in writing. Our failure at any time to require strict performance by you of any of the provisions herein shall not waive or reduce our right to thereafter require strict compliance with any provisions of the Terms. In the event of a conflict or inconsistency between these Terms or Privacy Policy and a separately executed agreement, the separately executed agreement shall control.