PREAMBLE
These Terms of Service (the «Agreement ») and the 2 Appendices thereto «Anti-Spam Policy» and «Privacy Policy» governs both Your subscription to and use of the Services. By clicking the box indicating Your acceptance You agree to the terms of the Agreement. If You are entering into the Agreement on behalf of a legal entity, You warrant that You have the authority to bind such entity and its affiliates to the Agreement, in which case the terms “You” or “Your” shall refer to such entity and its affiliates. In case You do not have such authority, or if You do not agree with these terms, You must not accept the Agreement and shall not use the Service.
You are prevented from entering our Services if you are a direct competitor, except with our prior written consent. You may not use the Services for purposes of benchmarking, competition or research purposes. The Agreement was last updated on February 19th, 2014. It is effective between You and Us as from the date of You accepting the Agreement. (“Effective Date”).
2. ALERT
We offer powerful tools at a low price. In exchange We expect Our customers to act with integrity and follow Our Anti-Spam Policy in order to help Us maintain our reputation as a professional service provider having Subscribers who only communicate to persons who have consented to receiving that communication or with whom Subscribers have a previous relationship authorizing such communication. Reference is made to Appendix 1 «Anti-Spam Policy».If You use Our Services to send an unauthorized SMS or e-mail or other electronic message or campaign to a recipient , We may charge You a penalty equal to € 100 (one hundred Euros) per substantiated incident (i.e. per communication) or any larger amount that may be imposed under applicable law, with a minimum of the actual damages We would likely suffer from any abuse of Our system or violation of the Agreement or the laws that regulate sending out and the content of electronic communications.
3. DEFINITIONS
The words and expressions of the Agreement shall have the meaning as established in this «Definitions» if not otherwise required from the context of the Agreement. Plural and singular word shall have the same meaning.“We”, “Us” or “Our” shall mean MainBrainer AS, a multi-channel communications service provider and Norwegian limited company, with its registered office at Willy Thoresens vei 37, 1459 Nesodden, Norway e-mail address [email protected] and business register number 894 806 672 MVA.
“You” or “Your” shall mean the legal entity for which You are accepting the Agreement, and Affiliates of that entity. “Affiliate” means any entity that is directly or indirectly owned or controlled by You with more than 50% of the shares or voting interests. “Subscriber” shall mean anyone subscribing to any of Our free and/or payable Services.
“Opt-in” shall mean someone is given the option to consent to receiving marketing communications by SMS, e-mail or other electronic means.
“Users” shall mean the persons for whom You have subscribed the Service and who have been supplied user identification and passwords by You (or by Us on Your written request).
Users may include Your employees, contractors, media agency or other third parties with which You transact business. “Service” shall mean the Service that is Ordered by You through an Order Form and made available by Us via the website www.mainbrainer.com (“Website”) “Order Form” and “Order” shall mean the document for placing Order(s) here under by completing an Order Form. You agree to be bound by the terms of the Agreement. “Site” shall mean Our Website. “Your Data” shall mean any and all electronic data or information, including but not limited to personal data and/or intellectual property rights protected works, marks and designs, submitted by You to the Services.
4. CHANGES
We reserve the right to change any of the terms of the Agreement by posting the revised Agreement on Our Website and/or by sending an e-mail to the last e-mail address You have given Us. Unless the Agreement is terminated by You within ten (10) days, this new Agreement will be effective immediately thereafter with respect to any continued or new use of the Service.
5. ELIGIBILITY
Our Services are only intended to be used in business-to-business and business-to-consumer communications. You thus have to be or represent a legal entity (business or organization) to sign up for and use any of Our Services. No person under the age of eighteen (18) years shall have the right to use Our Services. By using Our Services You represent and warrant that You are at least eighteen (18) years of age and that Your use of the Services does not abuse Our system or violate the Agreement or any IPR referred herein or the laws that regulate the use of the Services. Your uploads may be deleted and Your subscription may be terminated without notice if We have reason to believe that You are not and do not represent a legal entity (business or organization) or You are under eighteen (18) years of age or abuse or have intention to abuse Our system or violate the Agreement or any law.
6. FREE SUBSCRIPTION
You may use Our Services for free. Free subscriptions are limited to the use of the Service described in the Compare Packages section of Our Website.
The free subscriptions to the Services are provided “as-is” without any warranty.
7. ORDERED SERVICES
Any Ordered Service shall be accessible to You within forty-eight (48) hours after Our acceptance of Your Order.
8. USER SUBSCRIPTIONS
Our Services are purchased as User subscriptions and provided “as-is”. Only the Users named in the Order Form are allowed to access the Service(s). Each licensed User will be issued an unique password, which shall not be shared with any third party. You are responsible for maintaining the confidentiality of any User name and of the password provided to You and of any information of Us and of any third party obtained under the Agreement. You are solely responsible for usage of any account provided to You, whether or not the usage is authorized by You. You agree to immediately notify Us of any unauthorized use of any account of Yours and to Order any necessary Service to cover for the actual usage.
9. PRICES AND PAYMENT
The prices for Our Services are detailed on Our website and may be changed from time-to-time. You agree to pay any sales, use, value-added, or other tax or charge imposed or assessed by any government entity upon the use or receipt of Services, with the exception of any taxes imposed on Ournet income. Freemium, Starter, Pro online subscriptions and additional consumption related to Freemium, Starter, and Pro online subscriptions are paid in advance by credit card. If You select a Freemium, Starter or Pro online subscription, You agree to at all times provide us with valid credit card information and authorize us to deduct the agreed charges against such credit card and to replace the information for any credit card that expires with information on a valid credit card. Any person using a credit card warrants that he or she is authorized to use such credit card. Enterprise and agency subscriptions are invoiced and paid in advance. Additional consumption related to enterprise and agency subscriptions beyond the consumption included in the prepayment are invoiced and paid in arrears. If You select enterprise or agency subscription, You agree to pay all the invoiced amounts within thirty (30) days from the date of invoice. We are required to provide You a refund if We terminate Our Services to You without cause before the end of the term for which You have paid. We retain the right to immediately refuse access to any Service in case the credit requirements are not fulfilled by You.
10. CANCELLATION AND REFUND OF PAYMENT
Your subscription Order may be cancelled by You at Your convenience at any time. If You cancel an annual subscription within thirty (30) days after the Order date, the payment We have received from You for the subscription will be refunded. If You cancel a quarterly subscription within ten (10) days after the Order date, the payment We have received from You for the subscription will be refunded. If you cancel a monthly subscription within five (5) days after the Order date, the payment We have received from You for the subscription will be refunded. Payment for any actual usage of the Services will be deducted before a refund is made. After end of the cancellation period (30 days for annual subscriptions, 10 days for quarterly subscriptions and 5 days for monthly subscriptions), all purchases are final and all payments made or accrued are non-refundable. Notwithstanding the foregoing, if Your account is terminated due to Your breach of the Agreement, no payment will be refunded even if You cancelled the subscription prior to the termination of Your account. When you Order extra usage credit directly from Us, a refund will be given if You cancel the extra usage credit within thirty (30) days after the Order date. Payment for any used usage credit will be deducted before a refund is made. After thirty (30) days from the Order date, Your purchase of extra usage credit is final and all payments made or accrued are non-refundable. Our refund policy does not apply to Services that are (a) purchased via one of Our third party partners (please contact the partner directly, who may decide in its sole discretion whether or not to pay a refund), or (b) paid for or allocated to your Account by one of Our administrators.
If You want to make a claim that We have charged You in error, you must give written notice of claim within ninety (90) days of when We charged You in error. No refund will be given for any claims where written notice is given later than ninety (90) days from when We charged You. We reserve the right to refuse a refund request if We reasonably believes (a) that You are trying to unfairly exploit this refund policy, for example, by making repetitive refund requests in respect of the Services; (b) if You are in breach of the Agreement or (c) if We reasonably suspect that You or someone with access to Your User account are using Our Services fraudulently.
11. EFFECTIVE DATE AND TERMINATION
The Agreement for subscription-based access to Our multi-channel marketing campaign platform services, shall become effective on the Effective Date and will expire on the termination date set forth in the Order Form.
The Agreement will automatically renew for an additional time period equal to the time period Ordered, unless either party gives the other party written notice that it will not renew the Agreement which notice shall be given prior to the expiration date of the current period. Each party may terminate the Agreement if the other party materially breaches its obligations under the Agreement and does not cure such breach within thirty (30) days of written notice of such breach. Your account will be immediately terminated if you violate Our Terms of Service, Our Anti-Spam Policy or Our Privacy Policy or any of the intellectual property, data protection or privacy laws or regulations applicable to the countries in which You are using Our Services to sending any form of communications.
12. FORCE MAJEURE
Either party’s failure to perform its obligations hereunder shall not be deemed a breach of the Agreement if such failure is due to fire, strike, war, civil unrest, terrorist action, governmental regulations, acts of nature, or other causes beyond the reasonable control of the party claiming Force Majeure. This provision shall not apply to Your obligation to pay any sums that are due prior to the Force Majeure event, which shall continue unabated.
13. THE PARTIES RESPONSIBILITIES
You are aware that the Service is provided through automated processes and that the Service content including campaigns are distributed based on Your Data as provided by You. You are therefore exclusively responsible that the created and distributed content and the forms of communication meet all legal requirement in any of the countries You choose to distribute Your campaign and You are exclusively liable of any legal obligations or law not complied with by You or someone under Your responsibility. In case legal obligations or laws are not complied with, You will hold Us harmless for all loss, damages and costs of any kind including reasonable legal fees.
14. DATA PROCESSOR
When We process personal data on behalf of a Subscriber and the Subscriber determines the purpose of the processing of personal data and which means are to be used, We are the data processor. We will not process such personal data, nor turn such personal data over to another person for storage or manipulation, in any way other than that which is agreed in the Agreement including Anti-Spam Policy and Privacy Policy. We undertake to carry out such security measures as ensue from section 13 of the Norwegian Personal Data Act.
15. WARRANTIES OF COMPLIANCE WITH EU-REGULATIONS AND OTHER AUTHORITY REGULATIONS
You represent and warrant that You in any communications with Your customers and potential customers who reside in the European Economic Area (EEA) have complied and will comply with all data protection and privacy laws and regulations applicable to the countries in which you are sending any form of communications via Our Services. The same obligations shall apply to Your customer communication in all countries outside EEA.
16. INTELLECTUAL PROPERTY RIGHTS (IPR)
With no prejudice to the limited rights expressly granted under the Agreement, We or Our Licensors shall have all intellectual property rights (IPR) in the Service(s). Any loss caused by IPR infringements by You or by any person under Your responsibility shall be borne by You.
If You, a third party acting on Your behalf, or a User distribute campaigns using the Services, You authorize Us to host, copy, transmit, display and adapt such campaigns and process Your Data solely as necessary for Us to provide the Services in accordance with the Agreement. Subject to the above, We acquire no IPR from You or Your licensors under the Agreement in or to such campaigns or Your Data.
Notwithstanding the foregoing, in case You choose to use Our generic apps to distribute Your campaigns We are entitled to include those contacts using Our app in Our app Community.
We do not sell, rent or trade personal information, whether customer information or customer recipient data, without prior written consent. We may however, disclose the information we collect or maintain, including personal data, without prior consent as set out in Our Privacy Policy. Reference is made to Appendix 2 (Privacy Policy).
17. CONFIDENCIALITY
We and You agree to retain in confidence the non-public terms of the Agreement and all other non-public information and know-how disclosed or that becomes known by either party as a result of activities pursuant to the Agreement, which is either designated as proprietary and/or confidential, or by the nature of the circumstances surrounding disclosure, should reasonably be understood to be confidential (“Confidential Information”). Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, representatives and contractors as is reasonably required under the Agreement. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known; (ii) discovered or created by the receiving party without reference to the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law, court order or by any authority of any relevant country. Either party hereto may also disclose any Confidential Information here under to such party’s agents, attorneys and other representatives or any court of competent jurisdiction or any third party empowered here under as reasonably required to resolve any dispute between the parties hereto.
18. WHO MAY ORDER OUR SERVICES
To order any Service You must be or represent a legal entity (business or organization), complete the registration process, agree to the terms of the Agreement, provide true, complete and up to date information and be able to form legally binding contracts under applicable law. We reserve the right to refuse to deliver Services and to terminate accounts in case You or any of Your Users doesn’t meet the above requirements to use Our Services.
19. RESTRICTIONS IN USE
MainBrainer is a multi channel communications platform meant for lawful and non-offensive communications. In order to ensure the highest delivery rates possible for all Our customers we do not allow You to send out communications that might jeopardize the deliverability of our entire system. You can therefore not send:
20. WARRANTIES
To the extent permitted by law, the material on Our Website and the Services (including all content, software, functionality, services, materials and information made available herein or accessed by means hereof) are provided as-is, without warranties of any kind, either expressed, implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.
21. INDEMNIFICIATION
You agree to indemnify and hold Us, and Our shareholders, management, employees and representatives, harmless from any and all damages resulting from any claims not permitted under the Agreement due to a “limitation of liability’ or other provision, that You assert, or may assert, based on or relating to Your use, or the use of any individual using Your password, of Our Website or the Services. You further agree to indemnify and hold Us and our shareholders, management, employees, licensors and other representatives, harmless from any and all losses resulting from claims of any third party, that result in whole or in part from allegations of conduct by You that would constitute a violation by You, or any person using Your password, of any of the terms of the Agreement.
22. LIMITATION OF LIABILITY
To the maximum extent permitted by law, You assume full responsibility and risk of loss resulting from Your use of Our Website and the Services, including any downloads from Our Website. Under no circumstances shall We or any of our shareholders, management, employees or representatives be liable for any indirect, punitive, special or consequential damages. Our total liability in any event is limited to the amount, if any, actually paid by You for the use of Our Website and the Services for the one month period ending on the date a claim is made and You hereby release Us and our shareholders, management, employees and representatives from any and all obligations, liabilities and claims in excess of this limitation.
23. MANNER OF GIVING NOTICE
Except as otherwise specified in the Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing by post, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by e-mail and confirmed by receiver. Billing-related notices to You shall be addressed to the relevant billing contact designated by You through the registration form. All other notices to You shall be addressed to the relevant Service administrator designated by You through the registration form.
24. RELATIONSHIP OF THE PARTIES
The parties are independent parties. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. You accept that We refer to You being a Subscriber in marketing of Our Services. To request removal of Your name and/or logo from our marketing material, contact us at [email protected].
25. ENTIRE AGREEMENT
The Agreement, including the Appendices hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of the Agreement shall be effective unless signed in writing by the party against whom the modification, amendment or waiver is to be asserted.
26. MISCELLANEOUS
a. Assignability
The Agreement and the rights granted to You here under may not be assigned, sublicensed or transferred, in whole or in part, by either party without prior written consent of the other party, except to a successor to substantially all of the business or assets of a party by merger or acquisition. Where consent is required, it will not be unreasonably withheld.
b. Disclaimers
We disclaim and are not responsible for the behavior of any advertisers, linked websites or other third parties.
c. Compliance with law
In using the Services, You agree that You will comply with all laws applicable to the Agreeement.
d. Arbitration
Any unresolved dispute arising under the Agreement, including any question regarding its existence, validity or termination, shall at the request of either party, be referred to and finally resolved by arbitration under an arbitration court to be mutually appointed by the parties. The arbitration proceedings shall take place in Oslo, Norway and shall be conducted in Norwegian or English. This section is without prejudice to either party’s right to seek interim relief against the other party (such as an injunction) through the Norwegian courts to protect its rights and interests. The prevailing party in any arbitration shall be entitled to an award of its reasonable attorney’s fees and costs, in addition to any award or damages or other relief.
e. Applicable law
This Agreement shall be governed by and construed in accordance with the laws of Norway.
f. Force and Effect
If any provision of the Agreement is voided, deemed unenforceable or deemed illegal, the reminder of the Agreement and the reminder of such provision will remain in full force and effect. In the event of an ambiguity or question of intent or interpretation arises, the Agreement will be construed as if jointly drafted by the parties and no presumption, inference or burden of proof will arise favouring or disfavouring a party by virtue of authorship of any or all of the Agreement provisions.
g. Refusal of service
We reserve the right to refuse Services to anyone for any reason at any time.