PLEASE JUDICIOUSLY READ THIS AGREEMENT. BY SENDING EMAIL OR INTERACTING WITH THIS WEBSITE SITE OR SERVICES OF KONVEY, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, KONVEY IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE SITE OR SERVICES AND YOU MUST NOT ACCESS OR USE THE SITE OR SERVICES. IF YOU ACCESS OR USE THE SITE OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
These TERMS OF SERVICE (this “Agreement”) is made between Dirigo Design & Development, Inc. doing business as KonveySM (“Konvey”) and you, or, if you represent a business or other organization, that business or organization (in either case “You”).
Konvey provides certain services relating to the development, transmission, analysis, and management of email and marketing messages (the “Services”) through the website located at www.konvey.com and such other sites as may be designated by Konvey (each, the “Site” or collectively, the “Sites”).
All access to and use of the Services available through the Site is subject to the terms of this Agreement. If You wish to access and use the publicly available portions of the Services and the Site, You may do so only in compliance with the terms of this Agreement. If You have placed or later place an order (whether through the Site, by email, phone or otherwise) with Konvey (Your “Order”) seeking to access and use certain of the Services requiring registration, Konvey is willing to accept Your Order and provide You with access to and use of those Services only if You comply with the terms and conditions of this Agreement.
Without limiting the foregoing, the Services are not available to individuals under the age of 18 or who do not meet any of the other qualifications included in this agreement.
This Agreement is entered into as of the earlier of the date You first transmit an Order relating to the Services or first access or use the Konvey Services or a Site (the “Effective Date”). This Agreement contains the following terms and conditions and each Order submitted by You and accepted by Konvey, each of which is incorporated into and made a part of this Agreement. Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Konvey Services and the Konvey Sites and is the complete and exclusive understanding and agreement between the parties, and supersedes any spoken or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Services and the Sites. Except as expressly set forth in this Agreement, this Agreement may be revised or modified only by a writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Konvey reserves the right, at any time, to change or modify the Site, Services or this Agreement, by making such change or modification available on the Site or by providing other notice to You. Any such change or modification will be effective immediately. As applicable, You will be deemed to have agreed to such change or modification through Your continued use of the Site or Services. Terms used in this Agreement will have the definitions given in this Agreement.
1) ORDERS & CONFIRMATION:
All Orders placed by You will be governed by the terms of this Agreement. Konvey will confirm Your Order either through the Site at the time you submit Your Order or by providing You with access to the Services (each, a “Confirmation”). If the terms of any Order conflict with the terms of any Confirmation of that Order, the terms of the Confirmation will govern and control with respect to the Services provided to You. This Agreement will govern and control the terms of each Order and Confirmation under this Agreement. By accessing or using any of the Services, You agree to be bound by the terms of this Agreement and each applicable Order and Confirmation with respect to those Services.
This Agreement will be effective upon the Effective Date. If You have ordered a trial subscription to the Services or a subscription to any free Services, as indicated in an applicable Order or Confirmation (a “Trial/Free Subscription”), then the term of this Agreement will continue for the period of the Trial/Free Subscription indicated in the applicable Order or Confirmation and will thereafter expire unless You place an Order for a non-trial subscription to the Services prior to the completion thereof. If You have ordered a non-trial subscription to the Services, then the term of this Agreement will continue for the initial period stated in the applicable Order or Confirmation for the Services and will thereafter automatically renew for successive additional periods of equal duration. If no initial period is stated in the applicable Order or Confirmation for the Services, this Agreement will continue for an initial period of 1 month and will thereafter automatically renew for successive additional 1-month periods. Unless terminated as set forth herein, the term of this Agreement will continue to renew until You notify Konvey that You do not wish to renew the Agreement at least 1 day prior to the end of the then-current period. In all other cases, the term of this Agreement will continue until terminated as set forth herein.
Subject to this Agreement, during the term of this Agreement Konvey will provide You with a limited subscription to access and use the Services subject to Confirmations under this Agreement, solely for Your own use in connection with your own business purposes. Your rights to access and use the Services are personal, non-exclusive, non-transferable and non-sublicensable. You understand that Konvey may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Services (or any portion thereof) with or without notice.
4) ACCESS TO THE SERVICES
Upon Confirmation of Your Order by Konvey, the rights granted to You under this Agreement entitle You to access the Services through accounts (each, an “Account”). You will be provided with a user identification and password applicable to each Account You have purchased (each such user identification and password, an “Account ID”). Each Account ID is personal in nature and may be used only by You or, if You are an organization, by designated employees within Your organization or contractors who are contractually required to comply with the terms of this Agreement (such individual, as applicable, the “User” of the Account). You are solely responsible for all use of the Services by each User and for compliance by each User with the applicable terms of this Agreement. You will ensure the security and confidentiality of each Account ID and will notify Konvey immediately if any Account ID is lost, stolen or otherwise compromised. You acknowledge that You are fully responsible for all costs, fees, liabilities or damages incurred through use of each Account ID (whether lawful or unlawful) and that any Services ordered or transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by You. In no event will Konvey be liable for the foregoing obligations or the failure by You to fulfill such obligations. You will be solely responsible, at Your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for You and each User to connect to, access, and use the Services and the Sites.
Please safeguard your Account and make sure others don't have access to your Account or password. You must immediately notify us of any actual or suspected loss, theft or unauthorized use of your Account or password. You should never share login credentials amongst staff. Use sophisticated/hardened passwords and store the password in a ‘password safe’. We strongly suggest that You reset Account credentials every 90 days.
5) APPLICABLE POLICIES
You acknowledge that the Services, Sites, Software, and the databases, software, hardware and other technology used by or on behalf of Konvey to provide the Services and operate the Sites (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets and Confidential Information of Konvey. You will not, and will not permit any third party to:
- access or use the Services or the Sites, in whole or in part, except as expressly provided in this Agreement;
- use the Site, Services or any Software to harvest or collect e-mail addresses or other contact information of third parties by any means for the purposes of sending unsolicited e-mails or other unsolicited communications;
- use the Site, Services or any Software in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Services;
- use automated scripts to collect information from or otherwise interact with the Site, Services or any Software;
- use the Site, Services or any Software to intimidate or harass any other people or entities; alter, modify, reproduce, create derivative works of the Services, Technology, or any Software;
- distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Services or any Software, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Services or any Software, or access thereto, available to any third party;
- reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Site, Services, Technology or any Software;
- attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Sites, Services, Technology, or any Software; or
- interfere in any manner with the operation or hosting of the Sites, Services, Technology or any Software, or attempt to gain unauthorized access to the Sites, Services, Technology or any Software. You will not allow any access to or use of the Services by anyone other than Your authorized Users, and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
7) FEES & PAYMENTS
You agree to pay Konvey all fees set forth in each Order or Confirmation and any fees otherwise specified on the Site or through the Services (“Fees”). All Fees will be billed as indicated in each Order or Confirmation. If the applicable Order or Confirmation does not specify any applicable billing terms, the initial payment of Fees specified under that Order or Confirmation for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant Konvey the right to charge the credit card or debit the bank account provided to Konvey for all Fees incurred under this Agreement. All Fees will be non-refundable once paid to Konvey (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1 1/2% per month or the maximum amount permitted under applicable law. Konvey may change any portion of the Fees by posting the changes to the Sites or otherwise notifying You through the Services of the change, such changes to take effect at the beginning of the next period of this Agreement. If Konvey requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.
8) TERMINTATION & SUSPENSION
This Agreement may be terminated by Konvey, at any time, in Konvey‘s sole discretion:
- upon any breach by You of this Agreement that remains uncured ten (10) days after Konvey delivers written notice to You of such breach (or immediately if such breach is uncurable in the sole discretion of Konvey); or
- at any time during any Trial/Free Subscription, for any reason or no reason, upon notice to You.
Without limiting Konvey‘s right to terminate this Agreement, Konvey may also immediately and indefinitely suspend Your access to the Sites or Services, with or without notice to You, upon any actual, threatened or suspected breach of this Agreement or of applicable law or upon any other conduct deemed inappropriate or detrimental to the Services by Konvey. Upon termination or expiration of this Agreement for any reason:
- all rights and subscriptions granted to You under this Agreement will terminate;
- You will immediately cease all use of and access to the Sites and Services;
- all Fees then owed by You will become immediately due and payable;
- You will immediately either return to Konvey or, at Konvey‘s discretion, destroy the Konvey Content, Account IDs, Konvey Confidential Information, and other information related to this Agreement in Your possession or control; and
- Konvey may delete any of Your Content held by Konvey within 10 days after the date of termination.
Sections 5 (Applicable Policies), 6 (Restrictions), 7 (Fees and Payment), 8 (Termination and Suspension), 9 (Your Content), 10.2 (Warranties and Disclaimer: Indemnity by You); 10.3 (Warranties and Disclaimer: Warranty by You); 10.4 (Warranties and Disclaimer: Disclaimer), 11 (Limitation on Liability), 12 (Data Privacy), 13 (Confidentiality), 14 (Governing Law), 15 (Disputes), and 16 (General) will survive any expiration or termination of this Agreement.
9) YOUR CONTENT
Konvey is especially concerned about unauthorized use of copy (e.g. the text of your content) and digital assets (e.g. images and creative content). Konvey complies with the Digital Millennium Copyright Act (DMCA). The DMCA is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet.
Only Use Content You’re Allowed To Use. You represent that you own all rights to your Your Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license Your Content.
10) WARRANTIES & DISCLAIMER
10.1) BY KONVEY
Except in the case of any Services provided during a Trial/Free Subscription, Konvey represents and warrants to You that Konvey will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with this Agreement. Konvey‘s sole obligation and Your sole and exclusive remedy in the event of any failure by Konvey to comply with the foregoing sentence will be for Konvey to, at Konvey‘s option, re-perform the affected Services or refund to You the fees You have actually paid for the affected Services during the month in which the failure occurred.
10.2) INDEMNITY BY YOU
Notwithstanding anything in Section 10.1 to the contrary, You remain solely and entirely responsible for Your compliance with, and will defend, indemnify and hold harmless Konvey from and against any claims arising from any actual or alleged violation by You of any international, federal, state or local treaties, laws, rules, regulations or ordinances regarding Your use of or access to the Site or Services or regarding your business, products or services, including, without limitation, regarding data and data privacy and the transmission of electronic mail messages, whether solicited or unsolicited.
10.3) WARRANTIES BY YOU
You hereby represent, warrant, and covenant for the benefit of Konvey that:
- You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement;
- You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; and
- Your Content, and any other data, information or content You provide to Konvey in connection with this Agreement and Your access to the Site and use of the Services, is correct and current.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, THE SITES AND SERVICES (AND ALL KONVEY CONTENT PROVIDED THROUGH THE SITES AND SERVICES) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND KONVEY AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY KONVEY, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 10.
11) LIMITATION OF LIABILITY
IN NO EVENT WILL KONVEY BE LIABLE FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE SITES, SERVICES (OR ANY KONVEY CONTENT PROVIDED THROUGH THE SITES OR SERVICES), EVEN IF KONVEY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. KONVEY‘S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED ONE-FOURTH (¼) THE FEES PAID TO KONVEY HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $0.01). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT KONVEY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, KONVEY‘S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12) DATA PRIVACY
Konvey services are designed to be integrated with various third party services, applications, databases, and websites (collectively, “Third Party Services”). Examples include Your Website, Siriusware, Inntopia (Ryan Solutions), etc. These Third Party Services have their own terms and policies, and your use of them will be governed by those terms and policies. We don't control Third Party Services, and Konvey is not liable for data transmitted to or received from Third Party Services. Securing use of Third Party Services is Your responsibility.
You also agree that Konvey may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any Third Party Services deemed unsafe, in violation of our policies, or unhealthy to Konvey.
KONVEY IS NOT LIABLE TO YOU FOR ANY SUSPENSION, DISABLING, OR REMOVAL OF THIRD PARTY SERVICES, INCLUDING WITHOUT LIMITATION FOR ANY LOSS OF PROFITS, REVENUE, DATA, GOODWILL OR OTHER INTANGIBLE LOSSES YOU MAY EXPERICENCE AS A RESULT THEREOF (EXCEPT WHERE PROHIBITED BY LAW).
For purposes of this Agreement, “Confidential Information” means all nonpublic information disclosed or made available under this Agreement that relates to the Technology, the provision or receipt of the Services, or either party‘s technology, finances, operations, customers or business. For the avoidance of doubt,
- the Services, Technology, and Konvey Content are the Confidential Information of Konvey,
- all data regarding Your email recipients, including without limitation, identities, email addresses, transaction data, other data stored related to email campaigns, and templates are Your Confidential Information, and
- non-personally identifiable as defined in Section 12 will not be Your Confidential Information.
- disclose any Confidential Information to any third party;
- permit any third party to examine and/or make copies of any reports, documents or electronic data containing Confidential Information; or
- use any of the Confidential Information for any reason other than for the purposes of this Agreement.
- hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the state or federal courts located in or with responsibility for Cumberland County, Maine to resolve any disputes arising hereunder,
- agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in such courts and
- hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of such courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.
Each party agrees to protect the other party‘s Confidential Information with the degree of care that such party uses to protect its own confidential information of like nature, but in no case less than reasonable care. Each party agrees that, except as expressly directed by the other party, it will not at any time during or after the term of this Agreement:
14) GOVERNING LAW
This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Maine without regard to its rules governing conflicts of law.
EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS.
16) FORCE MAJEURE
Neither party shall be liable for any delays or non-performance directly or indirectly resulting from circumstances or causes beyond its reasonable control, including, fire, epidemic or other casualty, hacking, DDoS or other rate limiting attack, act of God, strike or labor dispute, war or other violence, or any law, order or requirement of any governmental agency or authority, provided that the delayed or nonperforming party is without fault in causing such delay or non-performance, and such delay or non-performance could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the delayed or non-performing party through the use of alternate sources, workaround plans or other means (“Force Majeure Event”). For any Force Majeure Event, the delayed or non-performing party shall be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and provided the delayed or non-performing party: (i) gives the other party prompt notice of such cause, describing at a reasonable level of detail the circumstances causing such failure or delay, and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If either party is unable to perform its obligations hereunder for a period of thirty (30) consecutive days as a result of a continuing Force Majeure Event, the other party may terminate this Agreement, effective on notice to the non-performing party.
The parties recognize and agree that this agreement may be performed in part with the use of talented, highly trained, specialized and experienced employees and subcontractors of Konvey (e.g. staff) and that Konvey has made substantial investments in staff. Therefore, during the term of this contract and for a period of twenty-four (24) months thereafter, You shall not: (a) tamper with or solicit, (b) initiate discussions with or hire, employ, engage, consult with, or contract hire our staff and/or (d) otherwise directly or indirectly engage the services of staff for the purposes of directing work away from Konvey (e.g. you may not hire or use our staff for like services).
We reserve these rights, which we may exercise at any time and in our sole discretion, and without liability or notice to You (except where prohibited by law): (a) we may change Konvey services and their functionality; (b) we may restrict access to or use of parts or all of the Services; (c) we may suspend or discontinue parts or all of the Services; (d) we may terminate, suspend or restrict your access to or use of parts or all of the Services; (e) we may terminate, suspend or restrict access to your Account or Your Websites; and (f) we may change our eligibility criteria for use of Services (and if such eligibility criteria changes are prohibited by law where you live, we may revoke your right to use the Services in that jurisdiction).
Our Betas Are Still In Beta. Konvey may release products and features that we’re still testing and evaluating. Those Services have been marked as beta, preview or early access (or a similar phrasing), and may not be as reliable as our other services, so please keep that in mind.
Konvey may provide templates or other services featuring demo content including without limitation text, photos, images, graphics, audio, video and other materials (“Demo Content”), to provide You with ideas or inspiration. However, Demo Content is for private use only (unless we tell you otherwise). You agree that you will not distribute, publicly display, publicly perform or otherwise publish any Demo Content (or any portion thereof).
Sometimes, ownership of an Account is disputed between one or more parties. We try not to get involved in these disputes. However, we reserve the right, at any time and in our sole discretion, and without notice to you, to determine rightful Account ownership and to transfer an Account or site to the rightful owner. If we can’t reasonably determine the rightful owner, we reserve the right to suspend an Account or site until the disputing parties reach a resolution. We also may request documentation, such as a government-issued photo ID, a credit card number or invoice, a business license, or founding documents to help determine the rightful owner.
Konvey welcomes your feedback, ideas or suggestions (“Feedback”), but you agree that Konvey may use your Feedback without any restriction or obligation to you, even after this Agreement is terminated.
Konvey may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Services appearing on the Konvey website and for other marketing and promotional purposes relating to the Services.
Konvey is a registered Service Mark (SM) and registered foreign name (e.g. DBA) of:
Dirigo Design & Development, Inc.
57 Exchange Street, Suite 302
Portland, Maine 04101.
Last Updated: February 8, 2017