GetResponse MAX Terms of Service
I. General provisions
GETRESPONSE TECNOLOGIAS BRASIL LTDA, a company registered in São Paulo, Brazil, at Irmã Gabriela Street, 51, Cidade Monções, City of São Paulo, State of São PauloCidade Monções, State of São Paulo, Zip Code 04571-130, enrolled in the CNPJ/MF (Corporate Taxpayers Registry) under nº 30.955.347/0001-59 (“GetResponse”, “we”, “us”) is the provider of certain online marketing and related services known as the GetResponse MAX (previously: Enterprise) Service (the “Service”). The Service is a business-to-business service only. We conclude agreements only with customers who subscribe to the Service for purposes relating directly to their trade, business or profession. These Terms of Service (the “Terms of Service”) set the rules for the use of the Service by our customers.
GetResponse shall perform the Service and provide Service Credits as set forth in the Service Level Agreement (“SLA”) if so agreed in your Order.
1.1. The Service consists of the following:
a. an access to and use of he user-facing elements of our web-based, SaaS (Software-as-a Service) model platform (the “Software”), as made generally available to our other customers, that allows the customer (“Customer,” “you” or “your”) to create, send, and manage marketing campaigns and host mailing lists on the GetResponse platform, by using tools such as: Newsletter Creator, Landing Page Builder, Marketing Automation Software, and others,
b. technical configuration of the Software, pursuant to arrangements made between GetResponse and the Customer prior to providing full access to the Software; and
c. providing the Customer with consulting services relating to the effective use of the Software.
1.2. The Service includes the following:
a. one main Customer account containing a unique sending identity and a database capable of storing and managing email lists and sending email campaigns (the “Main Account”);
b. the capability of automatic communication between the Service and the Customer’s system to run the Customer’s Contacts (defined below) database through the Service API.
1.3 You may use the Service to send emails only to those recipients who have given you permission to add them to your mailing list and have not subsequently withdrawn such permission (“Contacts”), unless you have another valid legal basis to process your Contacts’ personal data within the Service.
2. Main Account and Accounts
2.1 The Main Account may be accessed only with the use of your login credentials. You are responsible for keeping your login credentials confidential.
2.2 Within the Main Account, you may create additional accounts (the “Accounts”) and render them available to other users of your Accounts (the “Users”). Creating Accounts for Users does not create any legal relationship between us and such Users. You are solely responsible for all Users’ activities, acts and omissions in connection with the Main Account and Accounts, as well as for your own acts and omissions. You are not entitled to sell the Accounts to third parties, especially as an unassisted service, without our prior consent.
2.3. You acknowledge and accept that:
i. you are solely responsible for the conduct of users of Main Account and Accounts, including but not limited to: (i) ensuring that the Users use the Service in accordance with Agreement, these Terms of Service and applicable law, (ii) the consequences of granting access and authorizations to the Main Account and Accounts and the data associated therewith, and (iii) payment of any and all fees accrued in connection with the use of the Main Account and Accounts, whether by you or any of the Users or otherwise;
ii. you are solely responsible for creating, suspending and terminating Accounts, except as otherwise provided herein;
iii. you are solely responsible for assuring technical support to the Users;
iv. any and all claims of the Users related to the use or non-use of the Accounts and the Service, as well as for their suspension and/or Agreement termination, shall be resolved solely by you; you shall indemnify and hold harmless GetResponse from any and all losses, damages, costs and expenses resulting from such claims.
2.4 We provide the technical support of Customer Experience Department only to the user of the Main Account, and not to any of the users of Accounts.
3. Upgrade and Downgrade
3.1 You may upgrade your Service or order an add-on at any time. If you upgrade the Service, the fees applicable to upgraded or added Service Details will take effect immediately, with such increased fees calculated on a pro-rated basis, taking into account the number of days remaining in the then-current Settlement Period (defined below).
3.2 If you purchase an add-on during the current Settlement Period, we will align your add-on billing cycle with your payment cycle, so that the payment dates for all services under your Agreement are in line. The initial fee for the add-on will therefore be calculated in proportion to the number of days remaining until the end of the then current Settlement Period. In case of a downgrade, no adjustment will be made during the then current Settlement Period.
3.3 Upgrades regarding changes in the payment method or ordering additional services (e.g. IPs, the Transactional Emails feature, increasing your number of Users, Accounts Limit, Contact List Size, Email/Transactional Email Volume Allowance, Facebook Ads or other add-ons/additional services offered by GetResponse) may be requested via email to upgrades [et] getresponse.com, and shall be effective upon confirmation by GetResponse.
3.4 In exceptional cases, with our express consent it may be possible to suspend the Service. The terms and conditions of such a suspension must be agreed with the employee of the Customer Experience Department and confirmed by the Customer by sending an email to email@example.com. The Service suspension shall be effective upon confirmation by GetResponse.
4.1 You are solely responsible for providing a domain/sub-domain and verification of whether any selected domain or sub-domain name infringes any third-party rights, as we cannot and do not perform such verification and we expressly disclaim any and all liability arising directly or indirectly in connection with any such domain or sub-domain names. We reserve the right to block any domain or sub-domain, or cancel or change the name of any domain or sub-domain that you select, including but not limited to, if we are ordered to do so by a court or other governmental authority or reasonably believe that we must do so in order to avoid infringement or violation of the right of any third party or GetResponse.
4.2 In connection with the provision of our Landing Pages Builder add-on, we enable you to integrate your landing page(s) either with sub-domains provided by us or with your own domains.
5.1 The Webinar feature allows you to organize on-line conferences (“Webinars”) for a certain number of participants (“Participants”). You may use this feature for conferences in which you take part as an active Participant.
5.3 You are not allowed to run more than one Webinar at a time within one Account. Please bear in mind that Webinars may be unavailable in any particular location.
6. SMS Service
6.1 The SMS service is a functionality that makes it possible to send text messages to an unlimited, correct and verified list of telephone numbers at rates set out in the pricelist mentioned in the Account. Payment terms are specified in section V items 17 and 18 of these Terms of Service.
6.2 The SMS functionality entails the use of Third-Party Services. By using the SMS functionality, you agree for us to use subcontractors’ services involving SMS dispatch (“SMS Subcontractors”). By using the SMS service, you authorize us and SMS Subcontractors to send text messages created by you to telephone numbers indicated by you. GetResponse provides assistance in the SMS dispatch only and cannot interfere with their content.
6.3 By entering a trade name or trademark to fill in the ‘Sender’s name’ field, you submit a statement confirming the right to use a trade name or trademark and consent to its use in order for GetResponse and the SMS Subcontractor to render the service. The statement is submitted in the Account prior to dispatch. We reserve the right to verify the Name of the sender designated by you. If the statement is not submitted or if in doubt regarding the legality of the submitted statement, we can suspend the possibility to use the SMS service until doubts have been clarified or refuse the SMS service if there is no clarification.
6.4 You confirm that you have the right to use the data used in the SMS service including the telephone number specified in the list of recipients. You undertake to execute the rights vested in data subjects, including responding to communications demanding the cessation of the SMS dispatch to those addressees who did not consent to that or who withdraw their consent.
6.5 GetResponse does not verify the correctness of numbers supplied by you. The list of numbers to which the SMS are sent shall be available in the Account for 30 days as of the dispatch. After that time, the list of numbers shall be automatically deleted from the system with no possibility of its recovery. It is your sole responsibility to create backups of files and data you use while using the SMS service. We are not responsible for any damage relating to their loss.
6.6 The SMS service can only be available for selected locations; however, we continue to work on the expansion of the list of suppliers enabling the widest possible range of the service. The SMS functionality does not make MMS messaging possible.
6.7 You can verify the technical status of the SMS service at any time here.
7. Additional features (add-ons) and services
7.1 You may use certain additional features (add-ons) we provide, or integrate third-party services with the Service. The third-party services are not provided by GetResponse. Your ability to use some of the add-ons and third-party services may be limited pursuant to separate terms and conditions provided by the service provider offering a specific add-on and additional terms (“Additional Terms”) defined by GetResponse here.
7.2. The current list of third-party services you may integrate the Service with can be found in your Account.
8. Transactional Emails
The Transactional Emails feature allows you to send transactional messages to chosen email addresses and check the statistics of those messages. The Transactional Emails feature allows you to send email to recipients who have concluded a transaction with you or in any other way agreed to receiving such messages and have not removed such consent. Please be aware that to use the Transactional Emails functionality, you need to use Third-Party Services. Please remember that GetResponse only facilitates thetransmission of your messages and cannot interfere with the content of those messages.
9. Beta-test Versions
From time to time GetResponse may offer a beta-test version of new features. This allows Customers to try new solutions we come up with and helps us better understand your needs and develop the Service accordingly. If you decide to use a feature available in beta-test version, you agree that:
- The feature is available only for a limited period of time and can be deactivated at any time and at our sole discretion;
- The feature is available only to a limited extent and may be modified at any time and at our sole discretion;
- GetResponse does not warrant that any feature made available in a beta-test version will be included in the Service, we are not obliged to maintain or support any such feature, and we may cease development of any such feature at any time and at our sole discretion;
- You are solely responsible for consequences of using the beta-test version, including but not limited to, any impact such use may have on your Account settings, set or planned campaigns, collected data and other information, or otherwise. Please remember that once we deactivate a beta-test version of a feature, certain processes that took place with respect to your Account, set or planned campaigns, collected data and other information cannot be reversed, and GetResponse shall bear no responsibility or liability for any consequence resulting therefrom;
- At the end of a beta-test version period, one or more beta-tested features may be made available for a separate fee (e.g. as a paid add-on), or as a component of the Service.
10. AI Recommendations
AI Recommendations are the feature that enables you to add a product recommendation frame on your website or into your e-mail. Notwithstanding the number of recommended products, or recommendations frames used, one view of the website containing a product recommendation frame by your client or sending one e-mail containing a product recommendation frame is calculated as 1 (one) AI Recommendation. Current AI Recommendation pricing may be found here.
III. Technical Requirements
- Before you start using the Service, please read carefully the end-user documentation available in our Help Center, which contains the minimum hardware and software requirements necessary for using the Service. We may change those requirements every time we find them out-of-date, they do not meet the latest market standards (including security standards) or when we decide to introduce new technological solutions within the Service.
- In order for the Webinar feature to work properly in a full audio-video scope, a camera and/or microphone and a headset or loudspeaker must be on and not used by another application.
- To activate the Account, you need to have a phone and/or a service that allows you to receive SMS messages with an authorization code.
- You expressly acknowledge and agree that GetResponse is not responsible for satisfying the foregoing requirements, and that the quality of files sent, posted, streamed, published or otherwise transmitted using the Service may differ from the uploaded stream or file, in order to conform and adapt to the standards of transferring data, connecting networks, devices or the requirements of the Service.
IV. Use of the Service
By using the service, you agree to:
a. observe the GetResponse Service Documents (each as amended from time to time);
b. use the Service for purposes directly related to your trade, business or profession;
c. maintain and promptly update your contact details so that they are as current, complete and accurate as possible;
d. send or stream through the Service only such materials that you have full rights to use and publish on the Internet;
e. conform to all applicable laws, regulations, rules and requirements (“Legal Requirements”) relating to the transmission of emails (including but not limited to, commercial emails), the processing and transmission of personal data, applicable export and re-export control laws and regulations, including but not limited to the Legal Requirements in force in your country of residence;
f. keep all login credentials provided to you secret and confidential.
2. By using the Service, you agree to receive electronic invoices issued by GetResponse.
- You are obliged to timely pay all applicable fees for your use of the Service.
- Access to the Service is provided to you based on the limits and additional features and services specified in your Order or otherwise purchased from us (your “Subscription”). Accordingly, fees for use of the Service within the terms of your Subscription are due and payable in advance, unless otherwise stipulated in your Order.
- All fees are net amounts exclusive of taxes. Where appropriate, value added tax (VAT), goods and services tax (GST) or any other tax on sales (irrespective of the designation of the tax adopted in various jurisdictions) will be added to the payment price in accordance with currently effective rates. You agree to pay any taxes applicable to your use of the Service. You represent that you are registered for VAT or GST purposes in your country. At our request, you will provide us with the VAT or GST registration number under which you are registered. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
- Please note that some taxes depend on the region, province, state, town or district where you are located. You need to provide us with your correct address at all times, as we do not bear any responsibility resulting from the wrong calculation of taxes due to the inaccurate or wrong indication of your address by you.
- All fees due to GetResponse shall be paid by bank wire transfer or PIX. We will indicate the bank account to which the payment shall be transferred. Please note that the availability of the above-mentioned payment methods depends on your location and the Service provider you concluded the Order with.
- When you pay via wire transfer or PIX, the term “Settlement Period” shall mean a calendar monthly period, and the first Settlement Period shall begin on the Commencement Date indicated in your Order (“Commencement Date”). All the fees shall be paid by the Customer within 14 (fourteen) days of the date of issuing the invoice, to GetResponse’s bank account indicated on the invoice. The first and the last invoice may be issued for a period shorter than the full Settlement Period.
- You shall be in default if we do not receive payment after the due date. If you are in default of payment, we will be entitled to charge interest at the highest rate permitted by applicable law and exercise other rights as defined herein.
- If you exceed any of the limits you have paid for under your Subscription, you will be required to pay additional fees in accordance with the Order. Fees for exceeding the number of Users and Accounts Limit in a given Settlement Period are calculated based on the peak number of accounts – Main Account and Accounts and their individual Users who were active (i.e., the User’s status was set in position “ON” in the Main Account or Accounts) during any moment of the given Settlement Period. Fees for use of the Service in excess of your Subscription during a given Settlement Period will be invoiced in arrears and if you pay via wire transfer or PIX – the fee shall be paid within fourteen (14) days of the date of issuing the invoice by GetResponse.
- Except as expressly stated in the Agreement, all payments under the Agreement are non-refundable. For clarity, if your Agreement is concluded for a definite period of time and:
a. you have prepaid for your Service – you are not entitled to any refund in the case of the termination of the Agreement before the end of the current Term;
b. you have agreed to monthly payments – you are still obliged to pay GetResponse the whole fee given in your Order, even if you decide to terminate the Agreement earlier. In that case, the fee for the Settlement Periods remaining till the end of the current Term shall be paid within 14 days after the terminated notice was received by GetResponse (when you terminate the Agreement) or paid within 14 days of when the termination notice was issued by GetResponse (when GetResponse is entitled to terminate the Agreement earlier on the basis of the Agreement, e.g., your material breach or spamming).
10. Please note that the termination of your Agreement or access to the Service by GetResponse for any cause (as determined in section X point 3 below) also does not release you from the obligation to pay all remuneration due under your Agreement.
11. Fees for the use of the Service are based on the Subscription you have purchased. Not using the Service, irrespective of the cause, does not entitle you to a refund or any reduction in the fees you are required to pay to GetResponse. Similarly, you are not entitled to any such refund or reduction if you delay access to the Service or do not have the ability to use the Service.
12. Any unused Service limits, such as unused Email Volume Allowance, or unused Contacts List Size, are not transferred or carried over to subsequent Settlement Periods.
13. If we determine fees based on the number of your Contacts’ email addresses, we will monitor for the peak number of your Contacts’ e-mail addresses accumulated in all your campaigns, Main Account and Accounts in a given Settlement Period, which means that your Contacts are unique within each campaign, but not within the entire Main Account and Accounts.
14. To determine the fees due in a given Settlement Period, the highest number of the Contacts’ email addresses is taken into account. A downgrade of the number of email addresses within a given Settlement Period does not change the fees due for the use of the Service.
15. The payment for the SMS service is executed as a prepayment based on the current price list available in the Account. We reserve the right to change the price list at any time. The value of funds available is visible in the Account. A VAT invoice will be issued automatically after the payment. A report containing the number of correctly delivered SMS messages will be available in the Account after the dispatch. The final cost of the dispatch will be calculated on the basis of the report.
16. You can use funds paid as a part of the SMS service within 12 months as of the last top-up. Funds unused during that time shall expire.
VI. Service Fee Update
1. We reserve the right to change the Service Fee specified in your Agreement (“Service Fee Update”), if:
a. our Service offer is developing by adding new features and/or functionalities;
b. the scope of assistance offered by our Customer Experience Department is expanded;
c. we introduce significant technological changes, increasing the Service performance;
d. we expand our actual Service offers or introduce new offers in the current price-list;
e. your current plan conditions or available features meet the terms of the higher plan, e.g. MAX2 plan.
2. The Service Fee Update may be executed maximally once a year and shall not exceed the value of 20% of your current plan.
3. We shall inform you about the Service Fee Update via e-mail as specified in your Order.
4. The Service Fee Update becomes applicable:
a. for agreements concluded for an indefinite period of time: after 14 days from the moment when we informed you about this change, but not earlier than from the beginning of a new, full Settlement Period, following the above-mentioned term of 14 days;
b. for agreements concluded for a definite period of time: from the moment when your Agreement is renewed for a next Renewal Term (autorenewal). We will inform you about the Service Fee Update at least 60 days before your autorenewal.
5. If you do not agree to the Service Fee Update, you are entitled to terminate the Agreement in 14 days from the moment you were informed about the change. If you concluded the Agreement:
a. for an indefinite period of time – your Agreement will be terminated at the end of the Settlement Period following the Settlement Period during which the termination notice was submitted. Your current Service applies until the end of your Agreement;
b. for a definite period of time – your Agreement shall be terminated at the end of the current Term and shall not be renewed on the updated conditions.
VII. Prohibited practices, content and industries
- Strictly prohibited practice can be found here.
- Certain Content may be illegal or result in higher than normal bounce rates and abuse complaints, which may affect the deliverability of GetResponse’s platform to you and others. You acknowledge the foregoing and agree that you will not use the Service to stream, disclose, engage in, offer to sell, and promote, either directly or indirectly, any goods or services identified here, and that doing so is considered a violation of these Terms of Service and grounds for the termination of your Agreement.
- Our Customers are not allowed to use the Service to stream, disclose, engage, offer to sell, and promote, either directly or indirectly, any goods or services that meet any conditions that can be found here.
- You may not use any hardware or software intended to damage or interfere with the proper and timely functioning of the Service, or to surreptitiously intercept any system, data or personal information from the Service or any GetResponse Website. You further agree not to take any action that imposes unreasonable or disproportionately large load on the Service, any GetResponse Website, or any network or other Service infrastructure.
- We do not pre-screen or control the Customer’s activity related to the use of the Service. However, we reserve the right (irrespective of other rights under these Terms of Service) to refuse, remove or delete any Content, suspend email campaigns, block the Customer’s landing page, stop Webinars, suspend access to the Service or any part thereof, with or without notice, at our sole discretion if we reasonably determine that the Customer’s, User’s or Participant’s activity or the Content violates any applicable provision of the law, our policies, these Terms of Service, any third party’s right or is otherwise objectionable. In the aforementioned situations, without in any way limiting the disclaimer and limitations in Section 15, under no circumstances shall we be liable for the consequences of any measures taken pursuant to this paragraph.
VIII. Fair Usage Policy
In order to help ensure the quality and accessibility of the Service to our Customers, you agree not to use the Service or features thereof in a manner that is excessive or unreasonable relative to other Customers. Please note that we monitor various parameters on a case by case basis to identify and prevent excessive or unreasonable use that may adversely affect other Customers or the performance of their campaigns. Should our Compliance Team determine in its sole discretion that your use of the Service or any feature thereof is excessive or unreasonable, overloads our systems and as a result, detrimentally affects other Customers (e.g., an unlimited list of Contacts may be limited in case of the unexplained duplication of your Contacts or any signs that the Contact List is not being managed), we will promptly advise you on how to reduce your usage. If you do not follow that advice, and your usage continues to affect other Customers, you agree that we may immediately suspend or terminate your access to the Service in whole or in part and that you will not be entitled to a refund of any amounts previously paid. In the aforementioned situations, without in any way limiting the disclaimers and limitations in Section XVI, under no circumstances shall we be liable for the consequences of any measures taken pursuant to this paragraph.
1. Any and all information, data, texts, graphics, logos, video, music or other materials that you post, upload, send, stream or otherwise make available using the Service, including but not limited to on your landing page(s) or during Webinars, or that your landing page visitors or Participants upload, post or stream on your landing page(s) or during Webinars (“Content”), are solely your responsibility. Content also includes any links to other websites or resources or other third party services that you use. We do not claim ownership of the Content and you (or your landing page visitor/Participant, as applicable) retain all right, title, and interest in and to the Content. Notwithstanding the forgoing, the term “Content” does not include any materials that you take from our resources, including but not limited to from “Files and Images” and our collection of predesigned templates. You agree that we can present your landing page in our marketing materials, in particular case studies.
2. You are entitled to use materials that we render available to you solely to use the Service for its intended purpose, notwithstanding whether such materials are paid or free, customized or standard. Please note that our resources (in particular the “Files and Images”) may include materials that are subject to third party copyright. You acknowledge and agree that we have the right at any time and at our sole discretion to remove such materials from our resources, disable access to such materials or demand that you immediately stop using them, in particular in email campaigns and on your landing page(s) or Webinars. If you do not satisfy any such demand, we will be entitled to delete such materials at our sole discretion. In the aforementioned situations, without in any way limiting the disclaimers and limitations in Section XVI, under no circumstance shall we be liable for the consequences of any measures taken pursuant to this paragraph. If you post, upload, send, stream or otherwise make available Content through third parties or which belongs to a third party, you are obliged to adhere to such third party terms and conditions of service or license, irrespective of your obligations resulting from these Terms of Service.
3. You acknowledge and accept that we may preserve the Content and disclose it if we are required to do so by law or if it is necessary to enforce these Terms of Service, a court order or a decision of a competent public authority, respond to claims that any Content or the activity of your landing page visitor or Participants violates the law or the third party rights.
4. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT
We respect the intellectual property of others, and we ask our Customers to do the same. We may, in appropriate circumstances and at our discretion, disable and/or terminate Accounts of Customers who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide our Compliance Manager the following information:
b. a description of where the material that you claim is infringing is located on the Service;
c. your address, telephone number, and email address;
d. a statement by you that you believe in good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
e. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
5. Our Compliance Manager who acts as an Agent for Notices of claims of copyright or other intellectual property infringement can be reached as follows:
By email: firstname.lastname@example.org
By mail: to the GetResponse address specified in your Order, Attention: DMCA
By phone: +48 58 668 31 33
You can also use our contact form.
X. Customer Service
We offer assistance provided by our Customer Experience Department. The scope of the support may differ for MAX and MAX2 plans. Please check carefully how we determined this scope in your Order or the sales offer. We reserve the right to make certain modifications to the scope of the provided support, taking into account the current functioning of the Customer Experience Department.
XI. Term and Termination
- Either party may terminate the Agreement in accordance with the provisions set forth in the Order.
- Unless otherwise agreed in the Order, the parties:
- may terminate Agreements concluded for a definite period of time with the auto-renewal clause – providing notice of non-renewal no less than 30 days prior to the end of the Initial Term or the then current Renewal Term;
- are not entitled to terminate Agreements concluded for a definite period of time (without the auto-renewal clause) unless an explicit reason stated in these Terms of Service occurred;
- may terminate Agreements concluded for an indefinite period of time – termination is effective on the last day of the Settlement Period during which the termination notice was submitted.
3. Notwithstanding the foregoing, we reserve the right to block sending emails, suspend the Main Account (or part thereof – including each Account or add-on) and/or terminate your Agreement (which means shutting down the Main Account and Accounts) with immediate effect and without notice if we reasonably believe that you are in breach of any provision of the Agreement or any other policy developed, published or adopted by GetResponse. Without limiting the foregoing, the activities specified below each constitute a violation of the Agreement and grounds for the immediate termination or suspension of your Agreement and/or Main Account (including Accounts) or part thereof.
4. Examples of activities regarded as violations of the Agreement:
4.1. failing to make payment when due;
4.2. using the Service for abusive or prohibited practices, referred to in Section VII of these Terms of Service;
4.3. sending emails which we consider SPAM (determined on the basis of GetResponse algorithms and compliance procedures), in particular, if:
- the Customer’s name or domain (which the Contacts can access by clicking links contained in emails sent by the Customer) is listed on the Spamhaus Registry Of Known Spam Organizations (ROKSO, http://www.spamhaus.org/rokso) or such a domain is listed on at least one of the following blacklists: URIBL (http://uribl.com), SURBL (http://www.surbl.org), SpamHaus DBL (http://www.spamhaus.org/dbl) or ivmURI (http://www.invaluement.com);
- the Customer is found spamming by SpamCop or any other anti-spam organization that reports to GetResponse spam trap hits thru Unsolicited Commercial Email reports;.
4.4. the Customer breaches the rules of use of our trademarks or other intellectual property;
4.5. providing inaccurate, unreliable or false contact details, or failing to keep such contact details up-to-date;
4.6. assigning rights or obligations under the Agreement to a third party without the prior consent of GetResponse.
5. The Customer is entitled to terminate the Agreement upon written notice to GetResponse in the event that GetResponse is in material breach of the provisions of the Agreement and fails to materially cure such a breach within 14 (fourteen) days of the receipt of written notice from the Customer specifying such a breach in detail.
6. The termination and suspension as well as the downgrade of the Service or any of its parts or features may affect your Main Account as well as Accounts, set or planned campaigns, collected data and other information, or related matters. Once the Service or any of its parts or features are terminated, suspended or downgraded, certain processes that took place with respect to your Main Account and Accounts, set or planned campaigns, collected data and other information, cannot be reversed. In the aforementioned situations, without in any way limiting the disclaimers and limitations in Section XVI, under no circumstances shall we be liable for the consequences of any measures taken pursuant to this paragraph.
7. The interruption or suspension of your ability to send emails using the Service or access your Main Account and Accounts (or part thereof) does not release you from your obligation to pay the applicable fees for such an interruption/suspension period.
XIII. Copyright, Trademarks and Confidentiality
1. The Service, all GetResponse software, and the content included on the GetResponse Websites (such as text, graphics, logos, button icons, images, audio clips and software) (collectively, the “GetResponse Property”), are the property of GetResponse or its content suppliers and protected by United States and international copyright laws. No part of the GetResponse Property may be reproduced or transmitted in any form or by any means without express written consent of the authors, except as specifically provided and allowed by us.
2. “GetResponse” is a registered trademark of GetResponse in the United States, the European Union, as well as in other countries. Without our express consent, our trademarks, service marks, logos and other indicia of source may not be used in conjunction with other entities’ products or services in any manner whatsoever, including but not limited to in any way that may cause confusion among customers and potential customers, or in any manner that discredits GetResponse, its products and services.
- Confidential Information shall mean:
- any information regarding Software and services rendered by GetResponse which are of confidential or proprietary nature, including terms of Agreement;
- Contacts’ email addresses and personal data entrusted by the Customer to GetResponse for the provision of the Service;
- business, financial, organizational, technical information, as well as other circumstances regarding factual and legal situation of any Party;
- any information received under Agreement due to provision of Services or derived by the receiving Party from such information which is of confidential or proprietary nature.
2. Receiving party shall exercise no less care to safeguard Confidential Information acquired from disclosing party than receiving party exercises in safeguarding its own confidential or proprietary information.
3. Except as otherwise expressly permitted by the other party in writing, neither party will use, copy, adapt, alter or part with possession of any Confidential Information. This obligation will not apply to information which:
- receiving party can prove was in its possession at the date it was received or obtained, or
- receiving party obtains from a third party with good legal title to such information, or
- is in or comes into the public domain otherwise than through the default or negligence of receiving party, or
- is independently and lawfully developed by or for the receiving party.
4. Notwithstanding the foregoing, party receiving Confidential Information may disclose the same to the extent required in order to comply with any applicable law, regulation, court order or other legal, regulatory or administrative requirement; provided that receiving party will only disclose that portion of the Confidential Information as is ultimately legally required to be disclosed.
5. The Confidential Information shall remain confidential during the term of Agreement and for 5 years as of expiry or termination of an Agreement, irrespective of the basis of such expiry or termination.
- We may, at our sole discretion and without liability, change or modify the features of the Service or modify or replace any provided equipment, or software used to deliver the Service, provided that this does not have a material adverse effect on the Service.
- We also reserve the right to modify, add or delete any documents, information, graphics or other content appearing on or in connection with the Service or any of the GetResponse Websites, at any time without prior notice.
XVI. Disclaimer of Warranties. Limitation of Liability
1. You acknowledge and agree that GetResponse provides the Service and GetResponse Websites on an “AS IS” basis and disclaims all warranties of any kind, either express or implied, including without limitation any warranty of title, merchantability, non-infringement or fitness for a particular purpose.
2. You are solely responsible for your use of the Service, any of the GetResponse Websites and any and all Content, Webinars and email campaigns that you develop, operate or send using the GetResponse platform. It is your duty and responsibility (and not ours) to back up all your files and data stored on our servers and under no circumstances will we be liable for any loss or damages due to loss of such files or data stored on our servers.
3. Without limiting the foregoing, GetResponse is not responsible or liable to you for any:
- actions or omissions of any third party, including but not limited to Users or Participants, and other third parties using your Account with login credentials, passwords or details obtained from you or in other circumstances beyond GetResponse’s reasonable control;
- failure of external conditions, networks or telecommunications devices or equipment necessary to use the Service that are provided by third parties or otherwise beyond GetResponse’s reasonable control;
- problems of any kind with features used within test versions, including but not limited to beta-test versions;
- insufficient or fluctuations of the bandwidth used by Customer, Users or Participant which may affect Content quality;
- the failure to comply with the Service Documents by the Customer;
- misleading or fraudulent data provided by the Customer during registration.
4. To the maximum extent permitted by law, you agree that in connection with these Terms of Service, the Service and use thereof: (i) GetResponse, its employees, directors, officers or representatives shall not be liable for any indirect, incidental, punitive, special or consequential damage or loss (even if advised of the possibility of such damage), however caused and irrespective of the nature of the cause of action, demand or claim and (ii) GetResponse’s entire liability to you for any and all claims, actions, proceedings, losses, liabilities, damages, costs, expenses, judgements, and awards arising under or in connection therewith (each a “Claim”), in the aggregate, regardless of the form and cause of action, shall not in any event exceed the equivalent of amount payable for the Service for one Settlement Period immediately preceding the date when the event causing the Claim occurred, with the exclusion of any amounts representing Setup Fees, Additional Fees, paid add-ons, or any other extra charges. The Customer hereby releases GetResponse, its employees, directors, officers and representatives from any and all Claims in excess of the aforementioned limitation.
5. GetResponse’s total liability regarding any issues related to personal data processing, notwithstanding the number of and grounds for the Customer’s claims, shall be limited to the equivalent of the amount payable for the Service for six Settlement Periods paid by the Customer in the Settlement Period immediately preceding the date when the event causing the damage occurred, with the exclusion of any amounts representing Setup Fees or any extra charges. The Customer hereby releases GetResponse from any liability above that limit.
6. Neither party shall be responsible for any delay or failure in performance of their obligations under these Terms of Service due to Force Majeure or other occurrences that are beyond reasonable control of the party in default or failing to fulfil their respective obligations. For purposes of the foregoing, “Force Majeure” means any exceptional occurrence, caused by an external factor which cannot reasonably be foreseen or prevented, including but not limited to war, natural disasters, strikes, breakdowns, DDoS attacks or other disruptions in telecommunication networks or data communication infrastructure, emergency government action and administrative measures, and activities of third party entities that affect the provision of the Service, and whose activity is independent of the parties hereto.
7. You agree to indemnify and hold GetResponse, its employees, directors, officers, co-operators and representatives harmless from any and all claims, losses (either direct or indirect), damages and expenses, including but not limited to attorney fees, based upon or arising from (i) any failure by you or any individual using your login credentials to comply with your obligations under these Terms of Service, (ii) violation of any law, or of the rights of any third party by you, your Users, or any of your landing page visitors or Participants, (iii) your use of any third party service or integration of the Service with any third party service, or (iv) any User’s or Participant’s Content or activity. We will notify you as soon as reasonably practical of any such claim, demand or cause of action for which we will require indemnification from you.
- Any notices, including the Agreement’s termination notices, shall be made via email (by sending a scan of the signed notice of termination) or the use of the DocuSign service (or another similar service chosen by GetResponse).
- Termination notices sent by the Customer to GetResponse (via email as well as via the DocuSign service or another similar service chosen by GetResponse) should be addressed to: email@example.com.
- Termination notices sent by GetResponse to the Customer should be addressed: to any email address specified by the Customer in the Order.
- No amendments to the Order will be effective unless agreed to in advance by the Parties. Any amendments shall be made by sending a scan of the signed document via email or a copy executed with the use of the DocuSign service (or another similar service chosen by GetResponse).
XVIII. Final Provisions
1. You and GetResponse are each intended to be independent contractors, and not employees, partners or joint ventures of one another, and neither shall have any authority to bind or incur any obligation or liability on the other’s behalf. If any provision of the Agreement is invalid or unenforceable under the law of any government having jurisdiction, it shall not affect the legality, validity and enforceability of any other provisions hereof and the such invalid or unenforceable provision will be modified to the extent necessary to render it a valid and enforceable without altering its intent.
2. Any amendments to the Order or Exhibits thereto shall be agreed in advance by GetResponse and the Customer and shall be made by sending the scan of the signed document via email or a copy executed with the use of the DocuSign service (or another similar service chosen by GetResponse).
3. Notwithstanding the foregoing, GetResponse may amend these Terms of Service, the SLA, Service Documents or any other documents or policies strictly connected with providing the Service and/or mentioned in the Terms of Service at any time and from time to time by upon posting the amended version on the GetResponse website and/or by sending an email to the last email address you have given to GetResponse, and such amendment shall be effective immediately with respect to any continued or new use of the Service thereafter, unless you terminate the Agreement within 10 (ten) days thereof. Your continued use of the Service after such a 10 (ten) day period constitutes your acceptance of the terms of such an amendment. The most current version of these Terms of Service is available at www.getresponse.com/legal/max-terms-of-service.
4. We may assign rights and obligations arising from the Agreement to any company controlled by or under common Control with GetResponse without your prior consent. “Control” for the purposes of these Terms of Service means direct or indirect ownership or control of more than 50% of the share capital or voting interests of the subject entity. You may not assign any rights or obligations arising under the Agreement to a third party without our prior written consent.
5. All questions concerning the construction, validity, enforcement and interpretation of the Agreement shall be governed by the laws of the Federative Republic of Brazil. The disputes arising out of or in connection with the Agreement shall be submitted to the Brazilian courts with jurisdiction over the registered office of GetResponse TECNOLOGIAS BRASIL LTDA.
6. In the event of a conflict between or among the provisions of the Order (including the exhibits thereto), the SLA, and/or the Terms of Service, unless otherwise expressly provided therein, the conflict will be resolved in favor of the conflicting provision set forth in the following order of precedence: (a) the Order, (b) the SLA (if applicable), and (c) the Terms of Service.
These Terms of Service are valid as of the earliest of the date provided to you or posted on the GetResponse Website
November 18, 2022.