Terms of Use

Last updated: 3/3/2015
You have elected to access and use the Persado, Inc. (“Persado,” we,” “us,” or “our”) web application (the “Service”).  The Service is licensed to you by Persado under these terms and conditions (“Terms”). PLEASE READ THESE TERMS CAREFULLY BEFORE YOU CLICK THE “Sign up” BUTTON BELOW OR PROCEED WITH THE USE OF THIS SERVICE BECAUSE IT CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN YOU AND PERSADO.

If you do not agree to these Terms, do not use the Service. Your electronic acceptance or your activation or use of the Service 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, with or without notice to you. You agree that if you use the Service after the date on which these Terms have changed, we will treat your use as acceptance of the updated Terms.

Description and use of the Service

The Service. The Service 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 Service involves sending us certain personally identifiable information.  Our policies with respect to the collection and use of such personally identifiable information are set forth in our Privacy Policy (located at Privacy Policy, which may be updated from time to time.

Your Account. You will need to register for the Service 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 Service made using your account.

Account Data. The Service is made available to you through a URL.  By signing up to use the Service, you will provide Persado with certain data (your “Account Data”).  You expressly permit Persado to access and use your Account Data as necessary for us to provide you with the intende functionality of the Service. You retain all ownership of any intellectual property rights in and to the Account Data. You represent and warrant that (a) the Account Data provided is legal and does not infringe on any intellectual property or proprietary rights of any third party; and (b) you either own, or have a sufficient license to, all Account Data provided.

Fees. Full access to the Service is available for a fee, subject to your agreement to additional payment terms.  Those terms will be set out in any purchase order agreed to between you and us.

Prohibited Uses. By accessing and/or using the Service, you hereby agree that:

  • You will not use the Service for any unlawful purpose;
  • You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; and
  • You will not interfere
    with or attempt to interrupt the proper operation of the Service.

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

Licenses and Ownership

License to use the Service.  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 Service.  You must not: (a) modify, copy, distribute or transfer the Service, (b) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code of the Service; or (c) introduce into the Service any virus or harmful code.

License to 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 your Account Data and Campaign Information as reasonably necessary for us to provide you with the intended functionality of the Service.

Ownership. We own and will continue to own all right, title, and interest in and to (a) the Service, including, without limitation, all source code, object code, operating instructions, and interfaces developed for or relating to the Service; (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 Service (other than subject lines) 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 Service and any subject lines generated.

Disclaimers

ALL CAMPAIGN INFORMATION AND ACCOUNT DATA IS PROVIDED BY YOU. PERSADO, ITS AFFILIATES, SUBSIDIARIES, OR ITS OR THEIR OFFICERS, 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 ACCOUNT DATA THAT YOU PROVIDE OR FOR ANY RESULTS ACHIEVED FROM USING THE SERVICE, ANY MISUSE OF YOUR CAMPAIGN INFORMATION AND ACCOUNT DATA. WE EXPRESSLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH THE FOREGOING.

TO THE EXTENT PERMITTED BY LAW, THE SERVICE 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. 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 YOU WILL NOT SEEK, AND HEREBY WAIVE ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE 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 DIRECT DAMAGES ARISING UNDER THESE TERMS OF USE OR RELATING THERETO, 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 2 YEARS 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 in connection with: (a) any content you submit, post or transmit through the Service; (b) any violation by you of these Terms; (c) your use of the Service; or (d) your violation of any applicable laws or regulations, or rights of any third party, including without limitation any intellectual property or privacy rights. This obligation shall survive the termination or expiration of these Terms and/or your use of the Service.

Termination

We may terminate these Terms and/or suspend your access to all or any part of the Service 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 Service at any time without prior notice or liability.

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 gosupport@persado.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.

Entire Agreement

These Terms represent the final and entire agreement between you and us regarding the Service. 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.