Thank you for choosing to use the services of Litmus Software, Inc. (“Litmus,” “We,” “Us,” or “Our”).
These Terms of Service were last updated on June 14, 2019.
If You sign up for, or access or use the Website and/or other Services on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind such entity to this Agreement, and the terms “You” or “Your” herein shall include you, the individual user, and such entity. You, the individual user, represent and warrant that You are at least eighteen (18) years old and able to enter into contracts.
THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO SECTION 16 BELOW.
If You have any questions about this Agreement, please contact Us.
1. Certain Service Details and Definitions
- Scope of Use; Plan. You may access and use the Services solely for Your own internal business purposes, and not for the use or benefit of any third party. You agree to access and use the Services in accordance with the terms of the applicable Services plan agreed to by You and Litmus (including via an Order Form, Product Order or Your selection of a Services plan via the Website), which may impose limits on, for example, the amount of Email Previews used or the number of Users (Your “Plan”). Based on Your Plan, Litmus may impose limits on certain features and services, as well as restrict Your access to parts or all of the Services. You agree to comply with all terms and conditions regarding Your access and use of the Services.
- Competitive Activities. You may not access or use the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access or use the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
- Users. “Users” are identifiable unique persons who are authorized by You to use the Services on Your behalf, and who have each been supplied unique user names and passwords by You (or by Us at Your request). For clarity, each user name and password are intended for use by a single designated person and may not be shared with other individuals. Users may include only Your personnel (limited to Your employees and individual contractors). You may not exceed the maximum numbers of Users paid for as specified in Your Plan, as applicable.
- Email Submissions. “Email Submissions” are the email designs or test emails that You upload or otherwise provide to Us for testing when using any of Our email testing and rendering Services (i.e., to create Email Previews).
- Email Previews (aka Instant Previews). An “Email Preview” is an individual screenshot from an email client that is captured by Litmus and presented to You as part of Our email testing and rendering Services. Each test of an Email Submission will produce a new Email Preview for each email client that You have selected within Your account’s settings and will count towards the Email Preview limits associated with Your Plan. Details regarding Plan usage may be viewed within Your account.
- Email Analytics Data. If You choose to use Our Email Analytics tool, You authorize Litmus to collect certain data about the emails You send and the recipients of Your email campaigns, including how the recipients interact with the emails (collectively, the “Email Analytics Data”). You may be required to provide a unique identifier for Your email recipients in connection with these Services; provided, however, that any provision of Your recipients' email addresses is optional at Your election, and You are solely responsible for obtaining all necessary permissions in connection therewith.
- Forum Submissions. The Services may from time to time include interactive features such as blogs, forums, or any other feature by which You and/or others may post any content to the Services (each, a “Forum”). Any information or other content that You or others may post to any Forum will be considered “Forum Submissions” hereunder.
We may change any or all of the Litmus Terms by posting revised terms on the Website and/or by posting notice of such changes within the application. Unless You terminate Your account within ten (10) days, the new Litmus Terms will be effective immediately and apply to any continued or new use of the Services. We may change or discontinue the Services, or any features of the Services, at any time.
Litmus will use commercially reasonable efforts to provide You with support and maintenance for the Services in accordance with Our standard practices from time to time. You agree that Litmus will have the right to charge, in accordance with Our then-current rates for any support and maintenance services resulting from problems, errors or inquiries relating to systems or any other network, equipment, service or software not owned, controlled or procured by Litmus. Litmus shall have no obligation to provide updates (for example, patches or revisions to the Services), except that Litmus will provide You with any update that it makes generally available without charge to its similar customers.
Litmus will not be responsible or liable for any failure in the Services resulting from or attributable to (i) Your Systems (as defined below), (ii) network, telecommunications or other service or equipment failures outside of Litmus' facilities, (iii) Your or any third party's products, services, negligence, acts or omissions, (iv) any force majeure or cause beyond Litmus' reasonable control, (v) scheduled maintenance or (vi) unauthorized access, breach of firewalls or other hacking by third parties.
4. Certain Obligations and Restrictions
You represent and warrant to Litmus that: (i) all sign up and registration information You submit is accurate and truthful and (ii) You will maintain the accuracy of such information. You also certify that You take full responsibility for the selection and use of, and access to, the Services, including Your Plan.
Your master administrative User (the “Manager”) may appoint the number of Users specified in Your Plan and determine what feature permissions to grant to each such User, provided that the aggregate use of the Services by all Users, including the Manager, may not exceed the maximum limits as specified in Your Plan. You shall be responsible for all acts and omissions of Users (including any breaches of this Agreement by Your Manager or other Users), which will be deemed to be Your acts and omissions. In addition, You shall take full responsibility and liability for the security of each of Your user names and passwords (including, without limitation, those assigned to Your Manager and other Users), and You shall be solely responsible for all use of the Services through such user names and/or passwords. You agree to immediately notify Litmus of any unauthorized use of any of the Services or any other breach of security known to You.
You shall obtain and operate all Systems (as defined below) needed to connect to, access or otherwise use the Services, and You shall provide all corresponding backup, recovery and maintenance services. You shall ensure that all Systems are compatible with the Services, and You shall maintain the integrity and security of Your Systems (physical, electronic and otherwise). For the purposes of this Section, “Systems” means, without limitation, modems, servers, software, network and communications equipment and ancillary services that are owned, controlled or procured by You.
You, represent and warrant that You will not contribute any Submissions (as defined below) or otherwise use the Website or other Services in any manner that: (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) impersonates any person or entity; (v) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) is in any way related to sending or tracking unsolicited commercial mail or spam; or (vii) unreasonably interferes with use of the Website and/or Services by any other Litmus customers. Litmus reserves the right to remove any Submissions or Content (as defined below) from the Website or other Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Submissions or Content or if Litmus is concerned that You may have breached the immediately preceding sentence). You acknowledge and agree that You determine, in Your sole discretion (through Your account settings or otherwise), that the Submissions that are provided to Litmus by You and/or the Email Analytics Data (as defined above) that is collected or generated through Your use of the Services, do not violate the terms of this Agreement and, as a result, You, and not Litmus, assume all risks associated with the provision of such Submissions and the collection or generation of such Email Analytics Data. You agree to indemnify and hold Litmus harmless from all claims, damages, liabilities, losses, costs and expenses (including attorneys' fees) arising out of any use or disclosure of any of Your Submissions or Email Analytics Data (provided that any such use or disclosure by Litmus is made in accordance with this Agreement). You agree to create archival copies or backup copies of all of Your Submissions and Email Analytics Data, as applicable. You represent and warrant that You possess all rights necessary to provide the Submissions, grant the licenses to Litmus and direct Litmus to collect or generate the Email Analytics Data on Your behalf (if applicable) as set forth in this Agreement.
Additionally, You shall not (directly or indirectly) or permit any third party to: (i) interfere or attempt to interfere with the proper working of the Website, the Services or any activities conducted by the access and/or use thereof; (ii) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Services or reproduce or circumvent the navigational structure or presentation of the Services; (iii) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services, except to the limited extent applicable laws specifically prohibit such restriction; (iv) use the Services, or any of Litmus’ documentation or confidential information, to create any website, software, documentation or service that is similar, in whole or part, to any of the Services, any related software, or any documentation provided in connection therewith; (v) modify, translate, or otherwise create derivative works of any part of the Services; or (vi) copy, license, sublicense, sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available any of the Services (including in any service bureau arrangement or otherwise) for the benefit of any third party without the prior written consent of Litmus, unless otherwise expressly permitted by Your Plan.
5. Fees and Payment
- Generally. Litmus reserves the right to require payment of fees for certain or all Services. You shall pay all applicable fees, as described on the Website, within the Services, pursuant to Your Plan, and/or, if applicable, as mutually agreed upon by You and Litmus, in connection with such Services (the “Fees”). Any Services not set forth in Your Plan or as otherwise mutually agreed upon by You and Litmus may be subject to additional fees.
- Plan Limits. If You use any features that are only included in a Services plan that is higher-priced than Your Plan, or if You otherwise exceed the allowable limits of Your Plan, Litmus reserves the right to automatically upgrade Your Plan to the appropriate higher-priced Services plan and charge You the applicable Fees for that Plan effective as of the date You use such feature(s) and/or exceed the limits of Your Plan. Litmus may, but is not obligated to, contact You to warn You if You have exceeded the included features, limits or other terms of Your Plan. Notwithstanding the foregoing, You are solely responsible for reviewing the Website, Your use of the Services, and remaining aware of the limits of Your Plan.
- Monthly Plans: Upon signing up for any monthly Services plan, You will pay for the applicable plan subscription Fees up front by credit card. The first date of Your paid subscription term is Your “Subscription Start Date,” and You will be responsible to pay the applicable subscription Fees for Your Plan on that date. Your initial subscription term will run for a period of one (1) month from Your Subscription Start Date. Thereafter, Your subscription will automatically renew for successive one (1)-month periods, and you shall be responsible to pay the Fees, on each monthly anniversary of Your Subscription Start Date (each a “Monthly Subscription Billing Date”) (or the last calendar day of a given month if Your Monthly Subscription Billing Date does not occur in that month), unless You cancel Your subscription through Your Services account prior to the end of the then-current subscription term. To clarify, if Your Subscription Start Date is on the 15th day of a given month, Your Monthly Subscription Billing Date for each subsequent renewal term will be the 15th of each month. If, however, Your Subscription Start Date is on the 31st day of a given month, and the next subsequent month has only thirty (30) days, Your Monthly Subscription Billing Date for that given month will be the 30th instead. You may upgrade or downgrade Your Plan at any time through Your Services account. Any such change in Your Plan made by You through Your Services account will take effect immediately, and You will be promptly charged a pro rata amount for any increase in the applicable Fees for Your newly elected Plan (i.e., an amount equal to Your Plan’s current remaining partial and/or unused day(s) at the applicable Fee level for the newly selected Plan, less the Fee already paid for Your original Plan) on the next available billing date. Any change in Your Plan will not, however, change Your Monthly Subscription Billing Date. Thereafter, You will be billed the new Fees on Your Monthly Subscription Billing Date for each subsequent renewal term.
- Annual Plans: Upon subscribing to an annual Services plan, You will pay for the applicable plan subscription Fees up front by credit card or invoice. If You choose to be invoiced, Litmus will provide net thirty (30)-day payment terms. Your initial subscription term will run for a period of one (1)-year from Your Subscription Start Date. Thereafter, if applicable (as described in the Services or as otherwise communicated to You by Us, and unless otherwise agreed by You and Us), Your subscription will automatically renew for successive one (1)-year periods, and You will be charged the Fees, on each annual anniversary of Your Subscription Start Date (each an “Annual Subscription Billing Date”), unless You cancel Your subscription through Your Services account prior to the end of the then-current subscription term. You may upgrade or downgrade Your Plan at any time through Your Services account. Any such change in Your Plan made by You through Your Services account will take effect immediately, and You will be promptly charged a pro rata amount for any increase in the applicable Fees for Your newly elected Plan (i.e., an amount equal to Your Plan’s current remaining partial and/or unused month(s) at the applicable Fee level for the newly selected Plan, less the Fee already paid for Your original Plan) on the next available billing date pursuant to the payment terms set forth above. Any change in Your Plan will not, however, change the term of your Annual Subscription Billing Date. Thereafter, you will be billed the new Fees on Your Annual Subscription Billing Date for each subsequent renewal term.
- Changes; Payments; Taxes. We reserve the right to change Our Fees and to institute new charges at any time (including, for clarity, for any subscription renewal), upon notice to You, which may be sent by email or posted on the Website or in the Services. Your use of the Services following such notification constitutes Your acceptance of any new or increased Fees. All payments shall be made in U.S. Dollars and, when paid, are non-cancelable, non-contingent and non-refundable, except as otherwise provided herein. We are not responsible for any additional bank fees, interest charges, finance charges, over draft charges, or other fees arising from or related to charges billed by Us. All payments hereunder are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and You agree to bear and be responsible for the payment of all such amounts, excluding taxes based upon Litmus’ net income. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
- Billing and Payment Information. Unless otherwise agreed by You and Litmus, in order to sign up for a Services account, You must provide Litmus with accurate and complete billing information including legal name, address, state, zip code (if applicable), telephone number, and a valid credit card if subscribing to a monthly plan or opting to pay an annual plan via credit card. By submitting such credit card information, You give Litmus permission to charge all Fees incurred through Your account to the designated credit card. Litmus reserves the right to terminate this Agreement in accordance with Section 13 hereof if Customer does not provide a valid credit card or pay invoices timely for the payment of Fees hereunder.
Except as expressly provided below in this Section, or as otherwise agreed to by Litmus in its sole discretion, there are no refunds or credits for partial subscription terms of Services, upgrades or downgrades, or unused subscription terms. If You have subscribed and paid for Your Plan and Litmus terminates Your account as permitted in Section 13 below for no reason (for clarity, excluding any termination for breach or other reason permitted in this Agreement), a portion of the amount You have paid that is attributable to the post-termination period on a pro rata basis will be refunded.
7. Content, Submissions, and Email Analytics Data
- Content. The Website, the other Services, and their content are intended for use solely for Your own personal or internal business purposes and may only be used in accordance with the terms of this Agreement. All data, materials and information that may be displayed or performed on, accessed through, contributed to, or generated through the Services including, but not limited to text, graphics, software, scripts, sounds, music, videos, audiovisual combinations, interactive features, articles, photographs, images, illustrations (collectively, also known as the “Content,” and which includes Forum Submissions of third parties) are protected by copyright and/or other intellectual property rights. You acknowledge and agree that the Services and Content (including all related software, functionality, algorithms, concepts, materials, formats, templates, rules, technology and related intellectual property) are owned by Litmus, its licensors or other providers. You shall abide by all copyright notices, trademark rules, restrictions and other information contained in any Content accessed through the Website or other Services, and You shall not use (except as otherwise expressly permitted in this Agreement), copy, reproduce, modify, create derivative works based on, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content not owned by You: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right. Under no circumstances will Litmus be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content.
- Trademarks. Salted™, Salted Services™, SiteVista®, Litmus®, Litmus.com, the Litmus.com logo, and all other trademarks, service marks, graphics and logos used in connection with the Website or other Services are unregistered or registered trademarks of Litmus or Litmus’ licensors. Certain trademarks, service marks, graphics and logos used in connection with the Website or other Services may be the trademarks of third parties.
- Email Submissions. In the course of using the Services, You and other users may provide, directly or indirectly, information which may be used by Litmus in connection with the provision of the Website and other Services. You understand that You may upload or otherwise provide to Litmus Email Submissions (as defined above) in order to use parts of the Services. You hereby grant, and agree to grant, to Litmus a nonexclusive, worldwide, royalty-free, sub-licensable and transferable right during the term of this Agreement to use, copy, reproduce, reformat, modify, create derivative works based on, excerpt, translate, distribute, publish, transmit, perform, upload, or display such Email Submissions (including under all related intellectual property rights) solely in connection with performing for You or providing to You the Services. Litmus agrees to use its reasonable best efforts to maintain Email Submissions as confidential and to prevent disclosure of any such Email Submissions to third parties that are unauthorized to receive such Email Submissions.
- Forum Submissions. If You choose to post any Forum Submissions (as defined above), the below license is relevant. You hereby grant, and agree to grant, to Litmus a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sub-licensable and transferable right to use, copy, reproduce, reformat, modify, create derivative works based on, excerpt, translate, distribute, publish, transmit, perform, upload, display, or otherwise exploit in any manner, Your Forum Submissions (including under all related intellectual property rights).
- Your Ownership; Compliance with Laws. For clarity, the foregoing license grants to Litmus do not affect Your ownership of or right to grant additional non-exclusive licenses to Your Email Submissions, Forum Submissions (together, “Submissions”), or Email Analytics Data, unless otherwise agreed in writing. Notwithstanding the foregoing, any license granted to Litmus in this Agreement includes the right to use (including disclose) any Submissions or Email Analytics Data to comply with any legal, regulatory or similar requirement or investigation.
8. Use of Name
You hereby grant to Litmus the limited right to use Your name and any related logo to identify You as a customer of Litmus in listings of its customers, including in its marketing materials or websites.
9. WARRANTY AND WARRANTY DISCLAIMER
LITMUS HAS NO SPECIAL RELATIONSHIP WITH OR FIDUCIARY DUTY TO YOU. YOU ACKNOWLEDGE THAT LITMUS HAS NO CONTROL OVER, AND NO DUTY TO TAKE ANY ACTION REGARDING: WHICH USERS GAIN ACCESS TO THE SERVICES; WHAT CONTENT YOU OR OTHERS ACCESS VIA THE SERVICES; WHAT EFFECTS THE CONTENT, SUBMISSIONS, OR EMAIL ANALYTICS DATA MAY HAVE ON YOU; HOW YOU MAY INTERPRET OR USE THE CONTENT, FORUM SUBMISSIONS OF THIRD PARTIES, OR EMAIL ANALYTICS DATA; OR WHAT ACTIONS YOU MAY TAKE AS A RESULT OF HAVING BEEN EXPOSED TO THE CONTENT, FORUM SUBMISSIONS OF THIRD PARTIES, OR EMAIL ANALYTICS DATA. YOU RELEASE LITMUS FROM ALL LIABILITY FOR YOU HAVING ACQUIRED OR NOT ACQUIRED CONTENT, SUBMISSIONS, OR EMAIL ANALYTICS DATA THROUGH THE WEBSITE OR SERVICES. LITMUS MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING ANY CONTENT, SUBMISSIONS, OR EMAIL ANALYTICS DATA. WITHOUT LIMITING THE FOREGOING, LITMUS DOES REPRESENT AND WARRANT THAT TO ITS KNOWLEDGE, THE SERVICES DO NOT INFRINGE ON THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY. EXCEPT AS EXPRESSLY PROVIDED IN THE PRIOR SENTENCE, THE SERVICES, CONTENT, FORUM SUBMISSIONS OF THIRD PARTIES, EMAIL ANALYTICS DATA, WEBSITE AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE WEBSITE OR OTHER SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
You will indemnify and hold Litmus, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and expenses, including attorneys’ fees) from any claim or demand made by any third party due to or arising out of Your access to or use of the Website or other Services, Your violation of this Agreement, or the infringement by You or any third party using Your account of any intellectual property or other right of any person or entity, including claims for infringement arising from or related to use of the Website or other Services in combination with any content, technology or process(es) not provided by Litmus where such claim or infringement would not have occurred in the absence of such combination, except to the extent such claim or demand arises from any breach by Litmus of its warranty set forth in the fifth sentence of Section 9 above.
11. LIMITATION OF LIABILITY
EXCEPT IN CONNECTION WITH AMOUNTS OWED PURSUANT TO THE INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, YOUR OBLIGATION TO PAY ALL FEES DUE HEREUNDER, AND ANY BREACHES BY YOU OF SECTION 1 (CERTAIN SERVICE DETAILS AND DEFINITIONS), SECTION 4 (CERTAIN OBLIGATIONS AND RESTRICTIONS) OR THE FIRST PARAGRAPH ONLY OF SECTION 7 (CONTENT, SUBMISSIONS AND EMAIL ANALYTICS DATA), TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT SHALL YOU OR LITMUS (OR ITS LICENSORS OR OTHER PROVIDERS) BE LIABLE WITH RESPECT TO THE WEBSITE, OTHER SERVICES OR THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY AMOUNT IN EXCESS OF THE GREATER OF $100 OR THE AMOUNTS PAID OR OWED BY YOU TO LITMUS IN RELATION TO THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; OR (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. FURTHERMORE, LITMUS SHALL NOT HAVE ANY LIABILITY FOR ANY MATTER BEYOND ITS REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
12. Interaction with Third Parties
The Website or other Services may contain links to third party websites or services (collectively, “Third Party Websites”) that are not owned or controlled by Litmus. When You access Third Party Websites, You do so at Your own risk. You hereby represent and warrant that You have read and agree to be bound by all applicable policies of any Third Party Websites relating to Your use of the Services and that You will act in accordance with those policies, in addition to Your obligations under this Agreement. Litmus has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any Third Party Websites. In addition, Litmus will not and cannot monitor, verify, censor or edit the content of any Third Party Websites. By using the Services, You expressly relieve and hold harmless Litmus from any and all liability arising from Your use of any Third Party Website.
This Agreement shall remain in full force and effect while You use the Website and other Services. You may terminate Your use of the Services at any time through Your Services account. Litmus may terminate or suspend Your access to the Services or Your subscription at any time with or without notice, for any reason, which termination or suspension may result in the forfeiture and destruction of all information associated with Your subscription. Litmus shall have no liability to You or any third party because of such termination or suspension. Without limiting its termination rights above, Litmus may terminate or suspend any and all Services or access or use thereof immediately, without prior notice or liability, if You breach any of the terms or conditions of this Agreement. Upon termination of Your account, Your right to access and use the Services (including, without limitation, any Content, Submissions, or Email Analytics Data) will immediately cease. All provisions of this Agreement, which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, intellectual property-related restrictions, indemnification obligations, warranty disclaimers, and limitations of liability. In addition, all remedies for breach of this Agreement shall survive any termination of this Agreement.
If You provide to Us (directly or indirectly, and by any means) any comments, feedback, suggestions, or ideas related to the Services (collectively "Feedback"), the Feedback will be the sole property of Litmus. We will be entitled to use, reproduce, disclose, publish, distribute, and otherwise exploit in any manner, all Feedback, without restriction and without compensating You in any way. We are and shall be under no obligation to maintain any Feedback in confidence, or to respond to any Feedback.
The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of that right or any further rights hereunder. A waiver of any rights by Litmus hereunder must be express and in writing to be effective. Litmus shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Litmus’ reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Unless expressly provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. This Agreement is not assignable, transferable, delegable or sub-licensable by You, in whole or part, except with Litmus’ prior written consent. Any purported assignment, transfer, delegation or sublicense in violation of the prior sentence shall be null and void. Litmus may freely assign, transfer or delegate this Agreement, in whole or part, in its discretion from time to time. We may also use subcontractors or other third party vendors or service providers to provide the Services. Both parties agree that this Agreement, including the terms of Your Plan, which are incorporated herein by reference, are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications and waivers of any provisions hereof must be in writing, signed by both parties, except as otherwise provided herein. In case of a conflict between these Terms of Service and Your Plan, the terms of each shall govern on the following order of precedence: (a) Your Plan (e.g., services plan selected via the Website, Litmus Order Form or Litmus Product Order), and (b) the Litmus Terms. In addition, the terms of this Agreement shall prevail over any additional or different provisions in any purchase order, acceptance notice, other similar document issued by You, which provisions shall be of no force or effect. No agency, partnership, joint venture, or employment is created as a result of this Agreement and You do not have any authority of any kind to bind Litmus in any respect whatsoever. Headings for each section have been included herein for Your convenience, but such headings do not have any legal meaning, and may not accurately reflect the content of the provisions they precede.
16. Governing Law; ARBITRATION; Venue
This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without regard to the conflict of laws provisions thereof. ANY DISPUTE ARISING FROM OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT SHALL BE FINALLY SETTLED BY ARBITRATION IN THE COMMONWEALTH OF MASSACHUSETTS, USING THE ENGLISH LANGUAGE IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. (“JAMS”) THEN IN EFFECT, BY ONE COMMERCIAL ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING INTELLECTUAL PROPERTY AND COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAMS ARBITRATORS IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JAMS. JUDGMENT UPON THE AWARD SO RENDERED MAY BE ENTERED IN ANY COURT HAVING JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. Notwithstanding the foregoing, each party shall have the right to institute an action in any court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. Except as otherwise permitted above, for all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Commonwealth of Massachusetts.
In connection with any Forum (as defined above), any opinions expressed are the personal opinions of the original authors (not of Litmus), and any Forum Submissions that are provided are for informational and entertainment purposes only and are not meant to be an endorsement or representation by Litmus or any other party. Litmus does not assume any responsibility or liability for any Forum Submissions or any website linked to the Services and makes no express or implied warranty or guarantee about the accuracy, copyright compliance, legality, or any other aspect of Forum Submissions. No information You consider confidential should be posted to a Forum. It is in Your sole discretion as to whether or not to post any content to a Forum. Without limiting its rights to Your Forum Submissions under Section 7 above, Litmus may modify or delete Forum Submissions in its sole discretion and without Your permission. However, Litmus shall not be responsible for controlling or editing any Forum Submissions, nor can Litmus ensure prompt removal of inappropriate or unlawful Forum Submissions.
18. Trials; Free Plans; Beta Services
- Trials and Other Promotions. Any use of the Services under a trial or other promotion that provides You with free or discounted access to the Services ("Trial") is subject to the terms of that offer and must be used within the specified time period. You may cancel at any time through Your Services account at no charge up through the last day of the Trial. IF YOU DO NOT CANCEL DURING THE TRIAL, YOU WILL COMMENCE THE APPLICABLE PAID SUBSCRIPTION TERM AS OF THE FIRST CALENDAR DAY IMMEDIATELY FOLLOWING THE END OF THE TRIAL.
- Free Plans. Any use of the Services under a free Plan is subject to the terms of that Plan. You may cancel your free Plan at any time through Your Services account. If You want to go over the limits of Your free Plan, You will be required to upgrade Your subsciption to, and select and pay for, a paid Plan.
- Beta Programs. From time to time, Litmus may make new features, functionalities, services, software and/or documentation available for use. Those Services will be marked as "beta," "pre-release," "preview," "early access," or "evaluation" (or with similar words or phrases, collectively "Beta Services"). Any use of Beta Services by You must be made in accordance with the specifications provided by Litmus. At the end of the Beta Services period, Your use of the applicable Beta Services will expire.
- DISCLAIMERS. SERVICES PROVIDED PURSUANT TO A TRIAL, FREE PLAN, OR AS BETA SERVICES ARE PROVIDED TO YOU "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATIONS, WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE) OR INDEMNITIES, AND MAY BE MODIFIED, DISCONTINUED, OR CANCELLED AT ANY TIME FOR ANY REASON AT OUR SOLE DISCRETION.
19. Copyright Dispute Policy
Litmus has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at http://lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of Litmus’ Designated Agent to Receive Notification of Claimed Infringement (“Designated Agent”) is listed at the end of this Section. It is Litmus’ policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of Our advertisers, affiliates, content providers, or users; and (2) remove and discontinue service to repeat offenders.
Procedure for Reporting Copyright Infringements:
If You believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
- A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
- Identification of works or materials being infringed;
- Identification of the material that is claimed to be infringing, including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Litmus is capable of finding and verifying its existence;
- Contact information about the notifier including address, telephone number and, if available, email address;
- A statement that the notifier has a good faith belief that the material identified in (iii) is not authorized by the copyright owner, its agent, or the law; and
- A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
It is Litmus’ policy:
- to remove or disable access to the infringing material;
- to notify the content provider or user that it has removed or disabled access to the material; and
- that repeat offenders will have the infringing material removed from the system and that Litmus will terminate such content provider’s or user’s access to the Services.
Procedure to Supply a Counter-Notice to the Designated Agent:
If the content provider or user believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider or user believes that it has the right to post and use such material from the copyright owner, the copyright owner’s agent, or, pursuant to the law, the content provider or user, must send a counter-notice containing the following information to the Designated Agent listed below:
- A physical or electronic signature of the content provider or user;
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
- A statement that the content provider or user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
- Content provider’s or user’s name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s or user’s address is located, or, if the content provider’s or user’s address is located outside the United States, for any judicial district in which Litmus is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Litmus may send a copy of the counter-notice to the original complaining party informing that person that Litmus may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Litmus’ discretion.
Please contact Litmus’ Designated Agent at the following address: Litmus Software, Inc., 675 Massachusetts Ave, Suite 11, Cambridge, MA 02139, U.S.A., or email at email@example.com.
If You have any questions, complaints, or claims with respect to the Services, You may contact Us at: Litmus Software, Inc., 675 Massachusetts Ave, Suite 11, Cambridge, MA 02139, U.S.A., email Us at firstname.lastname@example.org or call Us at +1 (866) 787-7030, 9:00 AM – 6:00 PM EST, Monday through Friday.