Affiliate Program T&C

AFFILIATE AGREEMENT

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND MOOSEND.

BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU REPRESENT THAT

(1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, AND

(2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT AND THAT IS PARTICIPATING IN THE MOOSEND MARKETING AFFILILATE PROGRAM, AND TO BIND YOURSELF OR THAT ENTITY TO THIS AGREEMENT.

1. Overview

1.1. To be eligible to register for the Moosend’s Marketing Affiliate (“MMA”) Program you must review and accept these terms below including the Moosend Terms of Service , Moosend Messaging Policy, and Privacy Policy, which are incorporated herein by reference (collectively, this “Agreement”). This Agreement contains the complete terms and conditions that apply to you when become an affiliate in the MMA Program. Please note that throughout this Agreement, “we,” “us,” and “our” refer to Moosend, and “you,” “your,” and “yours” refer to you or the entity you represent as our Affiliate.

1.2 We may refuse and/or not accept any applicant at our sole discretion. To register as a member of our MMA Program you must complete the registration process on our Platform. Registration to our Platform is necessary even if you don’t make use of our services, solely in order to be able to become our Affiliate and participate in our MMA Program. The fact that we auto-approve applications does not imply that we may not re-evaluate your application at a later time. We may reject your application at our sole discretion or terminate any time in the future.

2. Affiliate Relationship and Obligations

2.1. In order to participate in our MMA Program, you declare that:
a) You are either a legal entity (business) that has been lawfully registered in your jurisdiction and that owns lawful tax credentials in your jurisdiction and can issue lawful invoicing documents or a natural person who owns lawful tax credential in your jurisdiction. In both cases you should have full contracting and legal capacity. You bear the responsibility to declare whether you act on behalf of a business or a natural person.
b) Your business or yourself (if natural person) is the owner or has the lawful license to operate the website that will participate in our MMA Program.
c) If a business you act as the legal representative and/or have the legal power to represent the business that will participate in our MMA Program
d) Your website is not a parked domain nor a webpage without any content (or with any unlawful content) and/or does not contain (nor shall it contain in the future) any of the forbidden content and activities referred to in the Moosend Terms of Service.

2.2. By submitting your application to us you lawfully declare that:
a) All the data in your application are true and accurate and correspond to you, your business and your website;
b) You have read, understood and accepted the present terms and conditions (otherwise you must refrain from submitting the application);

2.3. You acknowledge that all the above representations (in articles 2.1. and 2.2.) are an absolute prerequisite for your participation to our MMA Program. In case that any of the above is untrue, false or inaccurate, we shall have the right to terminate and ban you from our MMA Program for cause (in this case no commission will be payable to you and/or we reserve the right to exercise any further claim we might have against you).

2.4. We may refuse your application and/or terminate you from the MMA Program for cause as described previously in article 2.3 if we find out, or have reasonable indications that your site is unsuitable for our Program, including (but not limited to) if it:
i) Promotes and or contains sexually explicit materials and/or content
ii) Promotes violence and/or terrorism
iii) Infringes any rights of children or minors
iv). Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
v) Promotes, incorporates, and/or contains illegal activities and/or content of any type
vi) Incorporates any materials or procedures which infringe (or are likely to infringe) or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
vii) Includes “Moosend” or variations or misspellings thereof in its domain name. The affiliates should not use the word “scam” or similar negative words, for negative publicity.
viii) Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
ix) Contains software downloads that potentially enable diversions of commission from other affiliates in our program.
x) You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are and/or you have any association with (other than the co-operation described in the Moosend Terms of Service, Moosend.com or any other affiliated business.

2.5. As soon as we accept your application you will create an account profile with the use of your unique username and password. You have the obligation to keep safe and secret your password at all times and to inform us immediately in case of loss, disclosure or unauthorized use of your password and/or your account profile. Any act or omission in the Platform with the use of your unique username and your secret password will be interpreted as your action or omission. Through your account Platform you will have access to the MMA account manager assigned following successful application (“an Account Manager”). Here you will be able to review our Program’s details, download HTML code (that provides the links to web pages within Moosend.com website) and banner creatives, browse and get tracking codes for our Platform. In order for us to accurately keep track of all guest visits from your site to yours, you must use the HTML code that we provide for each banner, text link, or other affiliate link we provide you with otherwise we cannot guarantee that the MMA Program will run correctly without errors.

2.6. We reserve the right to create the banners at our sole discretion and to add, remove or replace content at any time. Also, Moosend reserves the right, at any time, to review your placement and approve the use of your Links as well as require that you change the placement or use and/or comply with the guidelines provided to you. The maintenance and update of your site will be your responsibility. It is also entirely your responsibility to follow all applicable intellectual property, consumer protection, data protection (as further analyzed in articles 6-8 below) as well as any other laws that pertain to your website and your business.
You understand and acknowledge that we are and remain throughout the term of our MMA Program two distinct and separated business entities, each one of which being responsible for its own business and ventures and we have no other association or co-operation but the one related to the present MMA Program. In addition, if you are natural person no employment or other work relationship is established between us.

2.7. We have the right (but we are under no obligation) to monitor your website at any time in order to determine if you are compliant to the terms and conditions of the present Agreement as well as in order to make sure that the links and references to our website are corresponding and are appropriate to our MMA Program. In this context you agree that we may notify you, at our sole discretion, of any changes we think appropriate (or necessary) for your website and to the links and/or references you make to us. If you do not abide to our requests with the timeframe set, we reserve the right to terminate your participation in the MMAProgram under the terms of article 3 below.

2.8. We reserve the right to assign part (or the whole of) the present Agreement and MMA Program to any third party who works with us for the execution of our MMA Program. In addition, we can use any third party as our subcontractor for the execution of any (or all) processes and/or operations related to our MMA Program.

2.9. In case that you breach any of the above warranties (contained in the present article 2), notwithstanding any other rights and/or claims we might have against you, you shall indemnify and hold us harmless against any and all actions, claims, demands for any damage or loss, costs, charges, proceedings and expenses (including legal fees), arising out of or in connection with, or incurred by reason of any infringement of any of the above.

3. Duration of the Agreement and Termination

3.1. The duration of the present Agreement begins upon our acceptance of your application to our MMA Program and is open ended; it shall continue unless terminated under the conditions set hereunder. In specific, either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice via email. You can contact us at [email protected]. We will contact you at the email address you have provided in our application form (or any other alteration you have submitted thereof). Termination is immediate upon receipt of the termination email (proof of delivery to the inbox of the recipient suffices). We reserve the right to set a termination deadline in our termination email at our sole discretion, otherwise termination is immediate. In case of termination for convenience, your commission will be payable as set in 5.2. below.

3.2. Moosend reserves the right to ban you from the MMA Program and to terminate this Agreement without prior notice should you breach any statutory or legal obligation in relation to the MMA Program. In that case, notwithstanding any other right or claim that we might have against you, you shall not be entitled to payment of any pending commission. We also reserve our right to seek the return of any payment made for commissions you have earned up until the termination of the Agreement (irrespective to when we found out about the breach). In addition, in case we terminate this Agreement for cause, you (and your business) are not entitled to register again in our MMA Program (either for the same website or for any other website you own, use or control).

3.3. We reserve also our right to terminate the present Agreement and to ban you from the MMA Program with or without prior notice in case that your MMA Program remains inactive for more than 180 days.

3.4. We reserve further our right to terminate the MMA Program in whole. In that case we shall inform all our Affiliate with a generic notification in our Platform (with or without deadline). In that case, we reserve our right to announce a gradual payment of any pending commissions to our Affiliates, deviating from article 5.2. below.

3.5. In any case of termination (with or without cause) you must refrain immediately from any further link and/or other marketing or promotional activity related to Moosend as an Affiliate. Also, you must refrain immediately from using any trademark or other IPR material that is owned or associated with us as well as from using any confidential information that we have become aware of due to your participation in our MMA Program. The clause 3 survives the termination of the Agreement.

4. Modification

We may modify any of the terms and conditions of our MMA Program and/or this Agreement at any time at our sole discretion. In that case you shall be notified with a generic notification. Modifications may include, but are not limited to, changes in the payment procedures, in the participation prerequisites, in the rights or obligations etc. In case you don’t agree with any modification, you have the right to terminate the Agreement as provisioned in clause 3.1. Any changes will be applicable from the time set in the notification uploaded in the Platform.

5. Payment

5.1. You shall receive a commission on a pay per sale/ scheme that operates as following:
a) Your right to receive a commission will start as soon as we get a sale/purchase from clicks we receive from your website. As a “sale/purchase” we define the purchase of a paid account from our Platform (monthly plan or pay as you go plan) and not just the registration as a Platform member nor when the member remains inactive in the Platform. To be eligible for a commission the user has to click first on your link and then purchase (first click attribution model as further analysed in d below)
b) (i) unless otherwise agreed in writing between the parties, this commission is calculated as following: 30% of the amount received from every sale/purchase (net amount after deducting the applicable VAT) on condition that you have the right to receive that commission as defined in paragraphs a), c) and d) of this clause 5.
(ii) You solemnly declare that the above agreed commission is reasonable and fair for the service provided and covers also any good will and clientele that Moosend will obtain from your participation in the MMA program and that you will have no other remuneration claim against Moosend. In case that our commission policy changes, new rates will be applicable to any sale/purchase conducted after the new charges come in force (irrespective when the first click was initiated). In case that you disagree with the new commission policy you can terminate our co-operation as provisioned in article 3.1. above. Payment will be made in US dollars.
c) The commission is due only when and if the new member has fully paid his/her subscription fees for the paid account (monthly plan or pay as you go plan) to us. This commission is payable for each month that the member is an active paid customer of ours or for each pay as you go service on condition that our member has paid his fees fully to us.
d) (i) For the avoidance of any doubt it must be noted that we will reward with a commission for a specific sale/purchase of a new member in our Platform the Affiliate whose link to Moosend served as the first click to our Platform irrespective if that member revisits our website using other Affiliate links afterwards and/or becomes a member via another Affiliate link. “The fist click wins” Hence when a paid account is opened for the first time, the Affiliate that served as the first click will be eligible for commission (on condition that that Affiliate is still a member in the MMA Program, otherwise the next in line will be eligible).
(ii) In order to pay the commission to you, conditions a), c) and d) above must apply cumulatively. We reserve the right to refuse the registration and/or sale/purchase to any new member such as indicatively (but not exhaustively) to those that do not comply or abide by the principles and provisions set in the Moosend Terms of Service.

5.2. Commissions are calculated and cleared at the beginning of each contractual month. In specific, we review the sales/purchases conducted within the previous months in relation to the members attributed to every Affiliate as set in 5.1. a) – d) above. We both accept that the logs (track records) that Moosend keeps in the back office of Platform regarding the clicks from your website as well as the sale/purchase conducted within each contractual month are absolute proofs of whether you have established the right to receive the commission set in the present Agreement. You can visit your account in our Platform to have a real time view of the status of your MMA Program. However, you agree that the data in your account are only temporary and shall be finalized only with the final calculation and clearance that will take place at the beginning of each contractual month. In any case, you will be entitled to receive payment only for those members that have fully paid our remuneration for our services (monthly plan and/or pay as you go plan). Therefore, for any pending member’s payments you shall receive commission within the contractual month that this payment was covered by the member.

5.3. So, further to the previous process, we will send you an email with the commission you are entitled from the sales/purchases of the previous month. In order to receive your payment you must send us the following data:

a) Your Paypal Email. You declare that the paypal details provided are true and accurate and correspond to the business that is the owner and/or the lawful user of the website that you have registered as our Affiliate. Payment to that account relieves us from any liability of payment of the relevant commissions to you (and the business that you have declared that you represent when applying for the MMA Program as set in article 2.1). If we are so notified in writing by any party, we reserve the right to refuse further payment to that account.

b) If you are a business you must first send us a valid invoice with electronic means issued by the same business that is registered as our Affiliate. The invoicing details of our company are:

Moosend Ltd
VAT: GB216931118
4th Floor International House,
1 St. Katharine’s WayLondon, E1W 1UN
United Kingdom

In your invoice you must include (in addition to any other mandatory data) also the following data: i) your Affiliate ID and ii) the month of your payment
We shall remit payment to you 15 days from receipt of the invoice in our email [email protected] (always include the word “Invoice” in the subject line). We reserve the right to refuse/suspend payment until we receive a valid invoice; we can request from you to resend us a new appropriate invoice if your initial invoice is not valid in our jurisdiction.
c) if you are a natural person we shall remit payment to you within the first 15 days of the month following the month in which you earned your commission. For U.S. residents, we cannot pay more than $600 per year without a W9 tax form on file.
In any case whatsoever either a business or a natural person you bear all the responsibility to abide by your tax rules and to comply with all relevant laws and obligations (as well as to receive any administrative or other license that might be required for the receipt of the commission for participation in the MMA Program).

6. MMA Program Restrictions

6.1. You are free to promote your own websites, but any promotion that mentions Moosend could be perceived by the public or the press as a joint effort. For that reason you should take all reasonable effort to make sure that our companies remain always distinct and you are not allowed to make any representation or undertake any other legal commitment on the name or on behalf of Moosend. You should know that certain forms of advertising are always prohibited by Moosend. For example, advertising commonly referred to as “spamming” is unacceptable for us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote Moosend so long as you have lawfully collected the personal data of the recipient (like indicatively but not exhaustively, the recipients is already a customer or subscriber of your services or website), and recipients have the option to remove themselves from future mailings (opt-out/unsubscribe). Also, you may post to newsgroups to promote Moosend.com so long as the newsgroup specifically welcomes commercial messages. At all times however, you must clearly represent yourself and your websites as independent from Moosend.com.

6.2. You should not misuse the Platform, the Account Manager, the content provided by Moosend nor hinder or interfere in any way to their operations or replace or modify the content. You should refrain from committing or encouraging any criminal offense, transmit or distribute viruses, or post any other malicious or technologically harmful material. You should abstain from committing any actions that can lead to unacceptable or extensive damage to the infrastructure or operation of the Platform and the MMA Program and you should not use the Platform and the Moosend Services in breach of confidence, privacy, or in any offensive or obscene way and in general in any illegal way.

6.3. Trademarks, logos as well as the URL of Moosend belong exclusively to us. Display of Moosend’s logo in your website in connection with the Affiliate Program does not imply license of using it neither the connection between Moosend and yourself, apart from what is laid down in the present MMA Program. We do not provide to you or third parties any license or consent for use of the trademarks in no way apart from what is provided in present Agreement. In addition, Affiliates are not allowed to use among other keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as Moosend.com, Moosend, www.Moosend, www.Moosend.com, and/or any misspellings or similar alterations of these. If an Affiliate proceeds to any such action this will be considered as a trademark violation, and, notwithstanding any other rights or claims of Moosend, will be banned from the MMA Program.

6.4. You shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited Moosend’s site (i.e., no page from our site or any Moosend.com’s content or branding is visible on the end-user’s screen).
As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non-affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email;
(b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, Bing and similar search or directory engines);
(c) set commission tracking cookies through loading of Moosend site in IFrames, hidden links and automatic pop ups that open Moosend.com’s site; (d) targets text on websites, other than those websites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on websites 100% owned by the owner of the application.

6.5. We reserve our right (if necessary and/or if we are under the legal obligation) to report any breach coming to our attention to the relevant law enforcement authorities under the conditions laid down in the applicable laws of the United Kingdom.

7. Personal Data Protection and Confidentiality

If you submit any Personal Data (as defined in our Privacy Policy) relating to other people or entities to us or to our service providers relating to the Moosend Services, you represent and warrant that: a) you have the authority to do so and to permit us to use the information in accordance with the Privacy Policy; b) the information is accurate.

7.1. Your Personal Data:
i) We collect and process your data with the sole purpose of executing the present Agreement and of realizing our co-operation as set in the present MMA Program. We respect your data privacy; all the data collected are necessary, relevant and appropriate for the performance of the MMA Program. By filling in your registration data in the application form you provide you consent for the processing of your personal data for the purposes of the present contractual relationship within our MMA Program.
ii) Any information provided by you will be considered as accurate; we shall be dismissed from any and all liability regarding communication obligations if we use the contact details provided by you
iii) You have the legal right to access your data at any time as well as the right to raise any reasonable and lawful objections. We do not share any personal data to any third party other than for the provision of performance of the MMA Program including: i) The data we provide to our partners who are providing us with the affiliate tracking platform ii) the data related to the execution and clearing of electronic payments performed by trusted partners such as payment service provides or financial institutions who follow all appropriate security procedures for the purpose of safeguarding the information and iii) to our subcontractors where absolutely necessary for the provision of Services under the MMA Program.

7.2. Collection and processing of Your and Your users/customer’s Personal Data:
i) We shall collect your and your customers’ limited personal information for tracking purposes (IP address and visits to our website as well as the initial root of the click) with the use of tracking cookies. You bear the responsibility of informing your customers that you use third party (Moosend) MMA Program cookies (which are absolutely and technically necessary in order to track the clicks of your customers to our Platform and to reword you with the commission as laid down in article 5.1. above).
ii) If a potential customer is interested in registering on our Platform they will then provide their personal data to us by filling in the relevant application form at their sole discretion. We shall process this data as provisioned in our Privacy Policy subject to their prior consent.
iii) Being the controller of your customer’s personal data, you are fully responsible to abide by any and all privacy and data protection rules and applicable laws of your customers when visiting and/or using your website, further to a lawful Privacy Policy.
iv) Up to the moment a customer is registered in our Platform, we are solely the Processors of the limited Personal Data referred to in i) above. Being the controller of those personal data you declare that you have the lawful rights to assign to us the processing of those data subject to i) and iii) above.
v) We shall not use or in any ways process the client’s Personal Data for any other purpose except as set in the present Agreement (and in our Privacy Policy if the applicant becomes our Platform’s member, subject to their prior informed consent). We shall take at least those measures that we take to protect our own confidential information of a like or similar nature and shall report to you any breach that comes to our attention. In case of any breach of this clause 7 the limitations of liability set forth in article 10 shall apply.

7.3. Any data related to the present MMA Program, its policies and guidelines, our market and marketing strategy, the content created to be used, statistics or other commercial data related to the MMA Program and/or the Platform, the customers and the overall clientele of the Platform (overall “Confidential Information”) are Moosend’s own trades secrets and confidential information and should be treated in strict confidence and privacy. Information that is not considered as confidential information and trade secrets is any information that (i) is or becomes a matter of public knowledge through no fault of the receiving party, (ii) was rightfully in the receiving party’s possession free of any obligation of confidence, (iii) was rightfully disclosed to the receiving party by a third party without restriction as to use or disclosure, or (iv) is independently developed by the receiving party without use of or reference to disclosing party’s Confidential Information. 7.4. This clause 7 survives the term or termination of the present Agreement.

8. Grant of Licenses

8.1. We grant to you a non-exclusive, non-transferable, revocable right for one user to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, logos, trade names, trademarks, and similar identifying material as well as content (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of Moosend’s MMA Program. You agree that all uses of the Licensed Materials will be solely on the grounds and for the purposes set in the present Agreement and the good will associated therewith will be to the sole benefit of Moosend. You have no other claim (except from your agreed commission that is payable under the conditions set in the present agreement) from us for the participation in the MMA Program and the clientele we shall gain.

8.2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.

8.3. In any case of lapse or termination of the present Agreement you shall immediately cease to have access and/or to use any of the Licensed Materials as well as have access in the Platform and/or your Account.

9. Representations and Warranties

You represent and warrant that:
9.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable to all parties in accordance with its terms;

9.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;

9.3. You participate in the present agreement as a “business” entity within the meaning of the Directive 2011/83/EC meaning that you are a natural or legal person within the course of your business activity.

9.4. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.

10. Our Liability and Our Disclaimer

10.1 This MMA Program is not designed as a personalized service; it is formed as a generic service packages addressed to multiple recipients and is provided “as is”. We do not guarantee the “fit for purpose” of the MMA Program and does not guarantee or promise that through the MMA Program will increase its clientele or its turnover.

10.2. You acknowledge and declare that we are in no way related or connected and that your business’ content, operating methods and transactions ARE NOT conducted through the Platform and ARE NOT controlled by Moosend in any way. Therefore, Moosend has no knowledge, bears no responsibility and does not guarantee the correctness, lawfulness, completeness, truth, precision or quality of the content and/or the products or services provided by you. Further, we are not responsible for any actions or omissions, loss or damage which can be caused to you, your customers or to any third part due to or in connection to the use or visit or transaction with your business. We DO NOT participate in and are not a contracting party in the agreements executed between You and your customers and any third party.

10.3. Unless it is otherwise expressed in the present Agreement and to the maximum extent permitted by Law, Moosend explicitly excludes hereby any conditions, guarantees and other terms which may be arisen by the applicable law and Moosend will not be liable for any damage, including but not limited, direct, indirect, consequential, punished or incidental damages or damages for loss of use, profits, data or other property, damage to reputation or name, the cost of providing substitute products and services which arise from or are related to the use, inability of use, operation or failures of the Platform and/or the MMA Program, regardless of whether these losses could be predicted or arise within the context of this contract, from services offered by Moosend within the Agreement or in tort, based on the applicable legislation or otherwise. In case of any proven damages of any Affiliate or of any third party due to proven intent (fraud) or gross negligence of Moosend that is directly associated with any act or omission of Moosend, then any such liability concerns exclusively actual damage while in case of proven slight negligence any such liability only concerns actual damage too which is limited to the amount that equals to 3 times the commission you have received from in the previous 6 months. Any and all limitations of liability limitations set out in the present Agreement are mutually agreed, fair and valid and have been acknowledged and accepted by the parties that participate in the present agreement as enterprises involved within the context of their business status.

10.4. We take all reasonable efforts so that the MMA Program and access to your Account can take place smoothly and without interruption and that the adequate level of security necessary is maintained. However, we do not guarantee that the pages, services, selections, contents, prices, descriptions and the availability of the applications/services will be provided without interruption and without errors. We are not liable, though, if for any reason, negligence included, the operation of the MMA Program or the platform or of your Account is interrupted or access to the Platform or the Account becomes difficult and / or impossible or if, despite the maintained security measures, viruses or other harmful software is identified and transmitted to the terminals of the users / visitors, or if third unauthorized parties intervene in any way to the content and operation of the website or the platform making the use difficult or causing problems to its proper function. Moreover, we are not liable in case of access break to the website or the platform, for reasons beyond our control as well as for reasons due to technical or other failure of the backbone network or for reasons of force majeure or incidental facts. It is also clearly indicated that in case of any loss or damage of data from your Account we are only liable solely for reposting the data based on the back up which the Member is obliged to take according to the reference in Article 1.6 d) above. In any case whatsoever, Moosend bears no liability in case of any error or interruption of the services due to any technical or other failure of the Moosend Service.
10.5 In any case, you are exclusively responsible for any damage may occur to us by incorrect or improper use of our MMA Program. You also bear the responsibility to compensate, defend and exempt Moosend and its directors, officers, employees, consultants, representatives and affiliates from any, and all, claims by third parties, liability, damages and/or costs (including, but not limiting, legal consultants fees) which occur because of or in connection to the use of the MMA Program or from the breach of the Agreement or in case any customer or third party turns against us for any of your acts or omissions.

11. APPLICABLE LAW AND JURISDICTION

These terms are governed by and construed according to the laws of United Kingdom. Both parties agree that they are subject to the exclusive jurisdiction of the courts of the city of London in the United Kingdom.

12. FINAL TERMS

12.1 This Agreement shall bind all contracting parties (Moosend and Affiliate) and constitute our entire agreement.

12.2. Any delay by the parties in practicing all or part of the rights arising from these terms does not entail weakening or waiving of this right which may be practiced at any time at a later stage and during the reasonable discretion of the beneficiary.

12.3. We may not amend or waive any provision of this Agreement unless in writing and signed by both parties.

12.4. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.

12.5. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.

Definitions

The defined terms used but not defined in this Agreement have the meanings given to those terms in the Moosend Terms of Service.

“Moosend” means Moosend Ltd. of 10 Eastbourne Terrace, London, W2 6LG United Kingdom if you are located in Europe, the UK, Middle East, Australia, New Zealand, Africa or Asia, or Sitecore USA, Inc. of 101 California Street, Suite 1600, San Francisco, CA 94111, USA if you are located in the Americas.

“Platform” means the SaaS email marketing and automation platform used by Moosend to provide the Moosend Services.