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Terms of Use

Last updated on: mAY 11, 2022

Introduction

Together with its subsidiaries and other affiliates, Emaily Inc. ("Emaily"), makes available the "Site" (websites including, without limitation, www.emaily.app and all subdomains), "Software" (software and mobile applications, including, without limitation, writing feedback suggestions and/or corrections, and human proofreading services) to help people communicate more effectively. Access to and use of Emaily's existing Site and Software, as well as any future Sites or Software provided by Emaily are governed by this Terms of Service and License Agreement (this "Agreement").

THIS IS A LEGALLY BINDING AGREEMENT. IF YOU DO NOT UNDERSTAND THIS AGREEMENT, OR DO NOT AGREE TO BE BOUND BY IT OR THE PRIVACY POLICY REFERENCED HEREIN, YOU MUST IMMEDIATELY LEAVE THE SITE AND YOU ARE NOT AUTHORIZED TO ACCESS OR USE ANY OF THE SOFTWARE. BY ACCESSING OR USING THE SITE AND/OR SOFTWARE, YOU CONFIRM THAT YOU ARE AT LEAST 18 YEARS OLD (OR IF YOU ARE BETWEEN 13 AND 18 YEARS OLD, INCLUSIVE, THAT YOU ARE USING THE SITE AND/OR SOFTWARE ONLY WITH THE APPROVAL OF YOUR PARENT OR GUARDIAN), THAT YOU ARE LEGALLY ABLE TO ENTER INTO THIS AGREEMENT, AND THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS AGREEMENT.

If you are an individual subscriber, or are accessing the Site to use a Trial (as defined below) of the Software, or are otherwise browsing the Site, this Agreement is between you, individually, and Emaily.

If you are an employee, faculty member or student of a university, school or other entity or organization that has subscribed to the Software (an "Enterprise Subscriber"), you are an "Authorized User" of your Enterprise Subscriber and (i) you represent that you have your Enterprise Subscriber's permission and authority to use the Site, Software and your Enterprise Subscriber's "User Content" (as defined below) subject to this Agreement, (ii) this Agreement is an agreement between you, individually, and Emaily, and (iii) your Enterprise Subscriber is jointly responsible for your use of the Site and Software.

If you are entering into this Agreement on behalf of an Enterprise Subscriber, you represent that you have the authority to bind the Enterprise Subscriber to this Agreement, in which case references to "you" in this Agreement shall mean the Enterprise Subscriber. If you do not have such authority, you must not accept this Agreement and may not use the Site or Software.

THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST EMAILY AND ITS LICENSORS AND ITS SUPPLIERS TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST EMAILY AND ITS LICENSORS AND ITS SUPPLIERS ON YOUR OWN BEHALF, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON YOUR OWN BEHALF, AND (3) YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO HAVE YOUR CLAIMS DECIDED BY A JUDGE OR JURY.

Licenses

If you are an individual subscriber: In consideration for your acceptance of this Agreement and your payment of all applicable Fees (as defined below), Emaily grants you a personal, limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and use the Site and the Software solely for your own personal purposes.

If you are an Enterprise Subscriber: In consideration for your agreement to this Agreement and your payment of all applicable Fees (as defined below), Emaily grants you a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and make use of the Site and the Software solely for your internal business purposes. In addition, you may permit such number of Authorized Users as has been agreed between you and Emaily to access and make use of the Site and Software.

If you are an Authorized User: In consideration for your agreement to this Agreement and your Enterprise Subscriber's payment of all applicable Fees (as defined below), Emaily grants you a personal, limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and make use of the Site and the Software solely for the internal business purposes of your Enterprise Subscriber.

You may access and use the Site and Software only in accordance with any instruction manuals, user guides and other documentation as made available by Emaily from time to time ("Documentation").

YOU MAY NOT GENERATE MORE THAN 500 EMAILS OR 150,000 WORDS IN ANY 30-DAY PERIOD OR 150 EMAILS OR 60,000 WORDS IN ANY 24-HOUR PERIOD.

If you are an Enterprise Subscriber, this restriction applies to each of your Authorized Users individually, not to your overall use of the Site and Software.

In addition, you may not:

a. copy, modify or create derivative works based on the Site, Software or Documentation, or any portion(s) of any of the foregoing (individually and collectively, "Emaily IP");

b. distribute, transmit, publish or otherwise disseminate any Emaily IP;

c. download or store any Emaily IP except to the extent explicitly permitted on the Site;

d. transfer to any third party any of your rights under this Agreement (except to the extent that an Enterprise Subscriber may permit such number of Authorized Users as has been agreed between the Enterprise Subscriber and Emaily to access and make use of the Site and Software);

e. access or use the Software or Emaily IP for the benefit of any third party (except to the extent that Authorized Users may access and make use of the Site and the Software solely for the internal business purposes of their Enterprise Subscriber);

f. access content or data not intended for you, log onto a server or account that you are not authorized to access, or otherwise violate or attempt to violate any security or authentication feature or measures of the Site or Software;

g. attempt to access or derive the source code or architecture of any Software;

h. attempt to probe, scan or test the vulnerability of the Site and/or Software, or any associated system or network, or to breach any security or authentication feature or measures of the Site or Software (except with Emaily's express permission in connection with your participation in one of Emaily's security testing programs), and if you are blocked by Emaily from accessing the Site or Software (including by blocking your IP address), you will not implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address);

i. interfere or attempt to interfere with service to any user, host or network, including, without limitation, by means of submitting malicious software or computer code ("Malicious Code") to the Site or Software, load testing, overloading, "flooding," "spamming," "mail bombing," "crashing,";

j. email or otherwise transmit any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains any Malicious Code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person or entity; (v) constitutes unsolicited or unauthorized materials; or (vi) is otherwise objectionable;

k. automate access to the Site or the Software, including, without limitation, through the use of APIs, bots, scrapers or other similar devices;

l. export or re-export any Emaily IP;

m. use or access Site, Software or Emaily IP in order to build a competitive product, service or solution;

n. violate any applicable law or regulations in connection with your use of the Site or Software;

o. impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, including, without limitation, an Enterprise Subscriber; or

p. permit any third party to do any of the foregoing.

Emaily may offer certain Software, including certain interfaces, for download from the Site ("Ancillary Software"). Subject to the other terms and conditions of this Agreement, you may install and use Ancillary Software on computers owned, leased or otherwise controlled by you, solely in conjunction with your authorized use of the Software. Upon expiration or termination of this Agreement for any reason, you shall cease any further use of the Ancillary Software and shall promptly destroy all copies thereof in your possession.

Certain Software (including Ancillary Software) may be subject to additional limitations, restrictions, terms and/or conditions specific to such Software ("Specific Terms"). In such cases, the applicable Specific Terms will be made available to you and your access to and use of the relevant Software will be contingent upon your acceptance of and compliance with such Specific Terms.

Certain Software (including Ancillary Software) may contain or otherwise make use of software, code or related materials from third parties, including "open source" or "freeware" software ("Third Party Components"). Certain Third Party Components may be subject to separate license terms that accompany such Third Party Components that, to the extent they conflict with the terms of this Agreement, supersede the terms of this Agreement.

Registration and security

By completing the registration process for any given Software, you are agreeing to subscribe to the selected Software, subject to the terms and conditions of this Agreement. You agree to provide Emaily with accurate and complete registration information and to promptly notify Emaily in the event of any changes to any such information.

You shall be solely responsible for the security and proper use of all user IDs, passwords or other security devices used in connection with the Site and/or the Software, and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to or used by any other person or entity. You shall immediately inform Emaily if there is any reason to believe that a user ID, password or any other security device issued by Emaily has or is likely to become known to someone not authorized to use it, or is being or is likely to be used in an unauthorized way. Emaily reserves the right (at its sole discretion) to request that you change your password(s) in connection with the Software, and you shall promptly comply with any such request.

You are solely responsible for all activity in connection with access to the Site and/or Software through your account or using your password, and for the security of your computer systems, and in no event shall Emaily be liable for any loss or damages relating to such activity.

Enterprise Subscriber responsibility for Authorized Users

Enterprise Subscribers shall ensure that the total number of Authorized Users does not exceed the maximum number of seats authorized by and purchased from Emaily (each of which seats represents a unique (named) Authorized User). Enterprise Subscribers may assign different Authorized Users to the seats authorized by and purchased from Emaily, so long as the total number of Authorized Users at any time does not exceed the maximum number of seats authorized by and purchased from Emaily, but Authorized Users may not transfer (including by way of sublicense, lease, assignment or other transfer, including by operation of law) their seat, user name or right to use the Site or Software to any third party. You, the Enterprise Subscriber, and your Authorized Users are jointly responsible for your Authorized Users' use of the Site and Software. You are also responsible for ensuring that all of your Authorized Users comply with all of the terms and conditions of this Agreement. Any violation of the terms and/or conditions of this Agreement by any of your Authorized Users shall be deemed to be a violation thereof by you.

Fees, payment, and trial memberships

If you have registered to use certain Software on a trial basis, then you may use such Software only for noncommercial evaluation purposes during the applicable trial period.

Your access to or use of the Software shall be contingent upon your payment of all applicable fees as described on the Site or Software at the time ("Fees"); unless you are an Authorized User, in which case your access to or use of the Software shall be contingent upon your Enterprise Subscriber's payment of the Fees.

Upon registering for Software, unless you are an Authorized User, you will be required to designate a valid payment method. You hereby authorize Emaily to charge to your designated account all Fees relating to the Software you select, and you agree to pay all such Fees in accordance with the applicable payment method terms and conditions.

Emaily reserves the right to revise its Fees, including by increasing or adding new Fees, at any time on ten (10) days' notice. Such notice may be sent to you by email to your most recently provided email address or posted on the Site or by any other manner chosen by Emaily in its commercially reasonable discretion. You will be deemed to have received any such notice that is posted on the Site on the day it was posted. Your use of the Software after the ten (10) day notice period constitutes your acceptance of the new or revised Fees. If you do not agree to the revised Fees, you may cancel your subscription by clicking on three dots on the plan card on the "Plan & Billing" page in the "Profile" and selecting "Cancel plan".

Continuous membership

To ensure uninterrupted service, all subscriptions to the Site and Software are renewed automatically. You hereby authorize Emaily to charge subscription Fees for the renewal period to the payment method on file. All subscriptions are renewed at the subscription level(s) and Fees in effect at the time the then-current subscription term ends. You may cancel the subscription at any time by clicking on three dots on the plan card on the "Plan & Billing" page in the "Profile" and selecting "Cancel plan".

Free trial

Emaily may offer a free trial membership from time to time with regard to certain Software (a "Trial"). By accessing or using the Site or Software, you agree to the terms of any such Trial and further agree to any changes Emaily may make to such Trial as described in "Changes to Software or Terms" below. If you cancel the Software before the end of the trial period, all your rights to any remaining free trial period will be waived, and you will not be eligible to participate in any further Trials, except as allowed by Emaily in its sole discretion.

Termination and refund policy

This Agreement shall continue until you cancel your subscription or until terminated by Emaily. You may cancel your subscription at any time, although only an authorized representative of an Enterprise Subscriber may cancel the Enterprise Subscriber's account. If you cancel after your subscription renewal date, you will not receive a refund for any amounts that have been charged. Your cancellation will be effective at the end of your then-current subscription period, subject to applicable law, and you may use the Software until your cancellation is effective (unless your access is suspended or terminated as set forth below).

Emaily may deny you access to all or any part of the Software or terminate your account with or without prior notice if you engage in any conduct or activities that Emaily determines, in its sole discretion, violate this Agreement or the rights of Emaily or any third party, or is otherwise inappropriate. Without limitation, Emaily may deny you access to the Software, or terminate this Agreement and your account, if your use of the Software exceeds the 30-day and 24-hour use limitations set forth under the section titled "License."

If you are an Authorized User of an Enterprise Subscriber, and this Agreement or the applicable agreement for Software is terminated in relation to such Enterprise Subscriber, or if you otherwise lose access to the Software via your Enterprise Subscriber (e.g., if you graduate from that Enterprise Subscriber or are no longer employed by that Enterprise Subscriber), Emaily may elect in its discretion to (a) terminate your account or (b) downgrade your account to an individual subscriber account, at which point you agree that your use of the Software will be as an individual subscriber in accordance with the terms of this Agreement (which Agreement at that point will be solely between you and Emaily).

If you are an Authorized User of an Enterprise Subscriber, your Enterprise Subscriber may elect in its discretion and at any time to revoke your Authorized User status and (a) terminate your account or (b) downgrade your account to an individual subscriber account, at which point you agree that your use of the Software will be as an individual subscriber in accordance with the terms of this Agreement (which Agreement at that point will be solely between you and Emaily).

Upon termination of your account(s) for any reason, your right to use the Software and to access the Site and any of its content will immediately cease and all content in your account(s) will be deleted. All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability and miscellaneous provisions.

Except as may be expressly set forth herein, all Fees paid or accrued in connection with any Software are non-refundable, and Emaily will not any Fees paid for a subscription that is terminated before the end of its term.

Termination of Agreement with Enterprise Subscriber

This section titled "Termination of Agreement with Enterprise Subscriber" applies only to Enterprise Subscribers.

Either Emaily or you may terminate this Agreement by notice if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after receipt of notice of the breach from the non-defaulting party. In addition, Emaily may suspend the Software upon notice if you fail to make any payment when due and fail to cure such breach within ten (10) days after receipt of notice of the breach from Emaily. Any such suspension or termination shall be without limitation of any other right or remedy available to the terminating party.

Emaily may terminate this Agreement for convenience upon sixty (60) days' prior written notice without liability to you. Following a termination pursuant to the foregoing sentence, Emaily shall not refund any Fees relating to the remaining term.

Either Emaily or you may terminate this Agreement immediately upon notice to the other party if the other party has a receiver or similar party appointed for all or substantially all of its property, is declared insolvent by a court of competent jurisdiction, ceases to do business in the ordinary course, files a petition in bankruptcy or has a petition filed against it in bankruptcy, becomes the subject of any court or administrative proceeding related to its liquidation or insolvency (whether voluntary or involuntary) that is not dismissed within ninety (90) days, or makes an assignment for the benefit of its creditors.

If this Agreement is terminated or otherwise expires for any reason, you shall promptly return to Emaily or destroy, as directed by Emaily, all Confidential Information, Software and other materials in your possession or under your control belonging to Emaily, and all rights and licenses granted by Emaily pursuant to this Agreement shall terminate. Upon the expiration or termination of this Agreement, your right to use the Software and to access the Site and any of its content will immediately cease and Emaily may elect in its discretion to (a) terminate your Authorized Users' accounts or (b) downgrade your Authorized Users' accounts to individual subscriber accounts.

All provisions of this Agreement that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, limitations of liability and miscellaneous provisions.

Access to Software

You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to or access the Site or otherwise use the Software, including, without limitation, modems, hardware, software, internet service and telecommunications capacity. You shall be solely responsible for ensuring that such equipment and ancillary services are compatible with the Site and Software.

Mobile Services

The Site and Software may include products and services that are available via a mobile device, including (i) the ability to upload content to the Software via a mobile device, (ii) the ability to browse the Software and the Site from a mobile device, and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, "Mobile Services"). To the extent you access the Software through a mobile device, your wireless service carrier's standard charges, data rates and other fees may apply. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that Emaily may communicate with you regarding Emaily and other entities by electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to the person that acquires your mobile telephone number.

User Content

"User Content" refers to the text, documents, templates, and other content and information you enter, upload, and transmit when you use our Site and Software.

You own the intellectual property rights in your User Content. As a result, we need your permission (in legal language, this is called a license) to use your User Content to provide our Site and Software to you.

You grant us a license to your User Content for the limited purposes of:
  • Operating and improving the Site and Software;
  • Protecting the Site and Software (for example, we may analyze patterns in usage to prevent abuse);
  • Customizing the Site and Software (for example, we may use your User Content to create personalized suggestions); and
  • Developing new technologies and services (for example, creating new Categories or Software).
The license you give us is only for the above purposes. That means we will not, for example, sell or license your User Content to third-party data brokers.

The license you grant us is:
  • Worldwide;
  • Non-exclusive (meaning you own your User Content and can license it to other people and companies);
  • Royalty-free (meaning we don't pay you for it); and
  • For as long as your User Content is protected by intellectual property laws.
The license you give us allows us to, solely for the purposes outlined above, store, reproduce, use, publish and publicly display to you, modify and create derivative works of, and permit (this is called a sublicense) our service providers to process your User Content solely for the purpose of helping us provide the Emaily Site and Software to you.

Emaily does not own, control, verify, or endorse User Content. You are responsible for all your User Content. That means you should back up all your User Content and not do anything illegal or harmful with it (including violate any intellectual property or trade secret laws).

Changes to Software or Terms

Emaily reserves the right at any time to (i) change any information, specifications, features or functions of the Site or Software, including any Trial, (ii) suspend or discontinue, temporarily or permanently, any of the Software or any Trial, including the availability of any feature, database or content, or (iii) impose limits on certain features and Software or restrict access to parts or all of the Software, including any Trial, in each case with or without prior notice and without any liability to you or any third party. Emaily will use its commercially reasonable efforts to notify you of changes to the Software that, in Emaily's reasonable opinion, have the effect of materially and adversely diminishing the functionality of the Software to which you have subscribed.

Emaily may from time to time update or revise this Agreement. If Emaily updates or revises this Agreement, Emaily will notify you either by email to your most recently provided email address, by posting the updated or revised Terms of Service and End User License Agreement on the Site or by any other manner chosen by Emaily in its commercially reasonable discretion. Your use of the Site or Software following any such update or revision constitutes your agreement to be bound by and comply with this Agreement as updated or revised. You can view the most current Terms of Service and End User License Agreement at https://emaily.app/terms. It is your responsibility to review the Terms of Service and End User License Agreement periodically.

If you cancel your subscription within ten (10) days following such notice by Emaily in accordance with the two preceding paragraphs, then Emaily will refund you a pro-rated portion of any pre-paid Fees for the affected Software applicable to the canceled portion of the pre-paid subscription term, if any.

Links to third party sites

Any links on the Site to third party websites are provided for your convenience only. If you choose to access third party websites or obtain products or services from third parties, you do so entirely at your own risk and such access is between you and such third party. Emaily does not warrant or make any representation regarding the legality, accuracy or authenticity of content presented by such websites or any products or services offered by third parties and shall have no liability for any loss or damages arising from the access or use of such websites, products or services.

Consent to receive email

Your registration to use the Site and/or Software constitutes your consent to receive email communications from Emaily, including messages regarding customer service issues and other matters. You may opt not to receive email correspondence, other than technical notifications and email regarding issues related to your account and your use of the Site and Software, at any time by following the link included in the email messages. Please note you will continue to receive transactional messages related to our Software, even if you unsubscribe from marketing emails.

Data collection and privacy

Emaily does not collect personally identifiable information from you except to the extent you have explicitly given such information to Emaily. Emaily's information practices are further described in its privacy policy, which is available at: https://emaily.app/privacy (the "Privacy Policy"). The Privacy Policy is an integral part of this Agreement and is expressly incorporated by reference, and by entering into this Agreement you agree to (i) all of the terms of the Privacy Policy, and (ii) Emaily's use of data as described in the Privacy Policy is not an actionable breach of your privacy or publicity rights.

Emaily may from time to time update or revise the Privacy Policy. If Emaily updates or revises the Privacy Policy, Emaily will notify you either by email to your most recently provided email address, by posting the updated or revised Privacy Policy on the Site or by any other manner chosen by Emaily in its commercially reasonable discretion. Your use of the Site or Software following any such update or revision constitutes your agreement to be bound by and comply with the Privacy Policy as updated or revised.

In addition, Emaily may engage third parties to conduct risk control and fraud detection/prevention activities. As part of such engagements, if you initiate a transaction on the Site or through the Software, Emaily may give such third parties access to your pertinent credit card and other personal information. Such third parties may only use such personal information for purposes of performing risk control and fraud detection/prevention activities for us. However, they may also convert such personal information into hashed or encoded representations of such information to be used for statistical and/or fraud prevention purposes. By initiating any such transaction, you hereby consent to the foregoing disclosure and use of your information.

Ownership

All intellectual property rights in and to the User Content are and shall remain your property, and Emaily shall acquire no right of ownership with respect to your User Content.

All intellectual property rights in and to the Software, Site and other Emaily IP are and shall remain the sole property of Emaily and its affiliates and licensors, as applicable, and you shall acquire no right of ownership or use with respect to any Software or other Emaily IP except as specified in this Agreement. Without limiting the foregoing, you acknowledge that the Software and the inventions, know-how and methodology embodied therein are proprietary to, and contain valuable trade secrets of, Emaily and its affiliates and licensors, as applicable, and that the Software constitutes Confidential Information of Emaily. You may from time to time provide Emaily with suggestions, comments, recommendations, improvements, solutions, bug fixes, features, concepts, techniques, ideas, know-how and/or any feedback regarding the Software, the Site and/or any of Emaily's related technologies ("Feedback"). Any and all Feedback is and shall be given entirely voluntarily. As between the you, Emaily and, if applicable, your Enterprise Subscriber, all Feedback shall be exclusively owned by Emaily, and you hereby make all assignments necessary to accomplish the foregoing ownership, and as a result Emaily shall be freely entitled to reproduce, prepare derivative works, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute and otherwise use and exploit any and all such Feedback as it deems appropriate, at its sole discretion, without obligation or liability of any kind to you, your Enterprise Subscriber (if applicable) or any other person or entity.

Indemnity

You shall indemnify, release and hold harmless Emaily and its parents, subsidiaries, affiliates, licensors and suppliers, and each of their respective officers, directors, employees and agents, from and against any loss, liability (including settlements, judgments, fines and penalties) and costs (including reasonable attorney fees, court costs and other litigation expenses) relating to any claim or demand made by any third party due to or arising out of your access to the Site, use of the Software, violation of this Agreement, or infringement of any intellectual property or other right of any person or entity. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

Warranty disclaimers

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EMAILY, ITS LICENSORS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE SITE AND SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, OR REGARDING SECURITY, QUIET ENJOYMENT, RELIABILITY, TIMELINESS AND PERFORMANCE. YOU AGREE THAT YOUR USE OF THE SITE AND SOFTWARE ARE AT YOUR OWN SOLE RISK AND THAT THE SITE AND ANY SOFTWARE ARE PROVIDED ON AN "AS IS," "WHERE IS," "AS AVAILABLE," "WITH ALL FAULTS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, EMAILY AND ITS LICENSORS AND ITS SUPPLIERS DO NOT WARRANT THAT THE OPERATION OF THE SITE AND/OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR-FREE.

Limitation of liability

IN NO EVENT SHALL EMAILY BE LIABLE WITH RESPECT TO THE SITE AND/ OR SOFTWARE FOR (I) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES YOU HAVE ACTUALLY PAID TO EMAILY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY; (II) ANY LOST PROFITS, LOST OR DAMAGED USER CONTENT OR OTHER DATA, OR FAILURE TO MEET ANY DUTY, INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE; OR (III) ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.

YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN EMAILY AND YOU. YOU UNDERSTAND THAT THE SITE AND SOFTWARE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.

CERTAIN STATES DO NOT ALLOW THE LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.

Dispute resolution by binding arbitration

a. Agreement to Arbitrate

This Section titled "Dispute resolution by binding arbitration" is referred to in this Agreement as the "Arbitration Agreement." You agree that any and all disputes or claims that have arisen or may arise between you and Emaily, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Site or Software, any advertising or any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Emaily are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

b. Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND EMAILY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND EMAILY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).

c. Pre-Arbitration Dispute Resolution

Emaily is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer's satisfaction by emailing at alex@emaily.app. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Emaily should be sent to Nechuya-Levyts'koho St, 4, Ap 2, L'viv, L'vivs'ka oblast, 79013 ("Notice Address"). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Emaily and you do not resolve the claim within one hundred and twenty (120) calendar days after the Notice is received, you or Emaily may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Emaily or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Emaily is entitled.

d. Arbitration Procedures

Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, https://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Unless Emaily and you agree otherwise, any arbitration hearing will be conducted in Ukraine, a reasonably convenient city for both parties with due consideration of their ability to travel and other pertinent circumstances. If your claim is for $10,000 or less, Emaily agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

e. Costs of Arbitration

Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the amount in dispute is $ 15,000 or less, then all Arbitration Fees will be shared between the parties to the dispute. If the value of the relief sought is $15,000 or less, Emaily will not pay attorneys' fees should you prevail. Emaily could seek attorneys' fees from you. But, if you initiate an arbitration in which you seek more than $15,000 in relief, the payment of attorneys' fees will be governed by the AAA Rules.

f. Confidentiality

All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

g. Severability

Without limiting the severability provision in the Section titled "General Provisions" of this Agreement, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause (b) of this Arbitration Agreement is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of clause (b) of this Arbitration Agreement is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this Agreement will continue to apply.

h. Future Changes to Arbitration Agreement

Notwithstanding any provision in this Agreement to the contrary, Emaily agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Software, you may reject any such change by sending Emaily written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.

General provisions

This Agreement shall be governed by, and construed in accordance with, the laws of the Ukraine, without regard to any choice of law, conflicts of law or other principles that would result in the applicable of the laws or regulations of any other jurisdiction. Subject to the section titled "Arbitration", any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Kyiv, Ukraine. You and Emaily agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.

This Agreement and the rights and obligations herein are personal to you, and you may not assign or otherwise transfer this Agreement or any of your rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Emaily. Emaily may freely assign this Agreement, including, without limitation, in connection with a merger, acquisition, bankruptcy, reorganization, or sale of some or all of our assets or stock.

If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the parties underlying the invalid, illegal or unenforceable provision(s).

The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.

If Emaily is unable to perform any obligation under this Agreement because of any matter beyond its reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving employees of Emaily), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond Emaily's reasonable control (each, a "Force Majeure Event"), Emaily will have no liability to you for such failure to perform. If any Force Majeure Event continues for more than thirty (30) days, either Emaily or you may terminate this Agreement by delivery of written notice to the other party. You will remain responsible for all Fees incurred through the last day the Software was available.

This Agreement constitutes the entire agreement between Emaily and you with respect to its subject matter, and supersedes all prior communications and proposals, whether electronic, oral or written, between Emaily and you. No waiver or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each party.

Contact

If you have any questions about us, our Site, our Service or this Privacy Policy, please contact us:
Emaily Inc., Shevchenka St, 120 Г, Lviv, Lviv Oblast, Ukraine, 79039
Email: alex@emaily.app