Legal

We hope that you will enjoy our email marketing online services that will, among other things, enable you to collect visitor email addresses and to create, launch, and manage online email campaigns (“Services”).

These terms of use (“Terms of Use”) are a legal agreement between (i) Cakemail Inc. ("Cakemail" “we”, “us” or “our”) and (ii) you (corporation, organization or other legal entity) (“Organization”) and each of the individuals (e.g., employees or consultants) acting on your behalf (the Organization and the individuals, collectively “you” or “your”), setting forth, among other things, the terms and conditions for the provision of the Services by Cakemail to you.

The Services are available through several URLs,including but not limited to: https://www.cakemail.com.

Effective as of September 28, 2023

By accessing and using the Services Cakemail, you accept and agree to the provisions of these terms of use (the “Terms of Use”) without any reservations, modifications, additions or deletions. If you do not agree to any provisions contained in these Terms of Use, you are not authorized to use the Services. You may be denied access to the Services, with or without notice to you, if you do not comply with any provisions of these Terms of Use.

We reserve the right to update and change these Terms of Use, in whole or in part at our sole discretion, from time to time and will post the updated amended Terms of Use on our website at the following address: Terms of Use with the date of the amended version. If we make any substantial changes to these Terms of Use, we will notify you by posting a prominent notice when you log onto Cakemail. If you do not agree to, or cannot comply with, these Terms of Use as amended, you are not authorized to use the Services. You will be deemed to have accepted these Terms of Use, as amended, if you continue to use the Services after any such changes. Any new features that augment or enhance the current Services, including the release of new tools and resources, shall be subject to these Terms of Use. If you wish to cancel your account because you do not agree with these Terms of Use as amended, please contact us by email at support@cakemail.com; we will refund you any amount you prepaid in respect of such Services for the period after the amended Terms of Use take effect.

The Privacy Policy (the “Privacy Policy”), the Data Processing Addendum (the “DPA”) and the Anti-Spam Policy (the “Anti-Spam Policy”) are incorporated by reference and made an integral part of the Terms of Use. It is important that you read and understand their terms. By using our Services, you agree to comply with these policies.  Any breach by you of the Privacy Policy, the DPA or the Anti-Spam Policy shall be considered a breach under the Terms of Use.

You represent and warrant to us that you have the full right, power and authority to access and use the Services and, to the extent necessary, that you have obtained all necessary corporate or other authorizations or consents to access and use the Services. Thus, if you are an individual (e.g., employee or consultant) acting on behalf of an Organization, you represent and warrant that you have obtained all necessary authorizations or consents (i.e., you must be an authorized representative) to accept these Terms of Use on behalf of such Organization so that, in addition to yourself, such Organization is bound by these Terms of Use.

We restrict access of the Services to registered users.

You must be 18 years or older (or the age of majority in your jurisdiction of residence) to use the Services.

You must provide true, accurate, current, and complete information about yourself (Organization and/or individual, as the case may be), including but not limited to a valid email address (collectively, your “Account Information”). You agree to update your Account Information as necessary to keep it accurate. You understand and agree that you are solely responsible for maintaining the confidentiality of your Account Information (including passwords) and for restricting access to your hardware device while using the Services. You agree to accept responsibility for all activities that occur under your account.

In the case of any doubt regarding the Account information provided by a prospective Organization, we reserve the right to require additional proof of identity and / or age if necessary. Submitting false or misleading Account Information may result in our terminating your account, as described further in these Terms of Use, in the Sanctions section.

Your login may only be used by yourself. Sharing a login with other people is not permitted. An Organization may create separate logins for as many individual users as it wishes. You are responsible for maintaining the security of your account login and passwords.

Only one free account per Organization is permitted.

For all accounts, we reserve the right to delete all user activity older than 90 days, after which only aggregate activity will be available to you.

Payment for Services must be made by a valid credit card accepted by us, unless other payment arrangements have been made. You hereby authorize us to charge your credit card for such amounts according to our pricing terms.

All fees paid for services rendered are non-refundable, unless an account is terminated by us without cause, in which case, a refund may be granted on a pro-rata portion of your prepayment for such services.

We will charge a reactivation fee of $100 to reactivate an account that has been deactivated due to non-payment.

We use various third parties including Stripe and PayPal for third-party payment processing in the purchasing process of the Services (Stripe, PayPal and others; the “Third-Party Payment Processors”). The Third-Party Payment Processors have our permission to store, on our behalf, the data pertaining to the executed transactions by Organizations with the goal of ensuring a secure method of payment and proof of purchase archive, allowing for the protection of you and Cakemail, and swift follow-up if necessary.Cakemail and the Third-Party Payment Processors are unaffiliated companies and Cakemail has no influence on the operations of the Third-Party Payment Processors. Cakemail shall in no way be held responsible for any losses or damages, direct or indirect, pecuniary or otherwise, resulting from any error or failure on the part of a Third-Party Payment Processor.

Organizations may access their account data via an Application Programming Interface (“API”). Any use of the API, including use of the API through a third-party product that accesses our Services, is governed by the terms of these Terms of Use in addition to the following specific terms:

All of your content and data used in connection with the Services (collectively, “User Content”) must comply with Canadian, U.S. and any other applicable intellectual property or other laws. You must only use images and text you are entitled to use. We claim no intellectual property rights over the material you provide through the Services. Your User Content materials remain yours or your licensors.

We may remove any Content or prohibit any use of the Services we believe may be (or is alleged to be) in violation of these Terms of Use.

All content displayed by us or otherwise on the web site and including, without limitation, all the software (including any source code) used in connection with the Services, style guide, design, text, photographs, illustrations, audio clips, video clips, tools, artwork and other graphic material (the “Cakemail Content”) is protected by applicable copyright laws. The content, and the copyright in the content, are owned or controlled by us and/or our affiliates, licensors, suppliers, representatives or agents. You must abide by all copyright notices, information and restrictions contained in any content on or accessed on the web site and maintain such notices in the Cakemail Content.

Our company or other third party names and logos and all related product and service names, design marks, trademarks and slogans that are displayed on or through the Services or used in connection with the Services, are our sole property or the property of our affiliates or licensors (collectively, “Marks”). You are not authorized to use any of the Marks for any purpose whatsoever including without limitation, in any advertising, publicity or any other commercial manner, without our prior written consent.

Nothing appearing on or through the Services, whether in the form of text, images, or computer code will be construed as granting you any license, right, title or interest relating to the Marks or other intellectual property used in connection with the Services (collectively, “Intellectual Property”) and the Intellectual Property remains our exclusive property or the property of its owners. Except as stated herein, you agree not to display, copy, reproduce, use or distribute any Intellectual Property without our prior written consent. Also, you cannot mirror any material contained on the Services or made available through the Services.

Subject to the limited rights expressly granted hereunder, we reserve all right, title and interest in and to the Services, including all related Intellectual Property rights, to the fullest extent possible under applicable laws. You may not assign, transfer or otherwise affect any rights granted to you under these Terms of Use, and any attempt to assign, transfer or otherwise affect any part of your rights under these Terms of Use is void.

You shall not (i) permit any third party to access the Services except as specifically permitted herein, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

We shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Services or other feedback provided by you relating to the operation of the Services (collectively, “Feedback”). You hereby irrevocably assign all right, title and interest in and to the Feedback to us and waive all your moral rights in the Feedback.

Interruptions You acknowledge that: (i) the provision of Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including, without limitation, as a result of power outages, system failures or other interruptions; and (ii) we are entitled, without any liability to you, to suspend access to any portion or all of the Services at any time (a) for scheduled downtime to permit us to conduct maintenance or make modifications to the Services; (b) in the event of a denial of service attack or other attack on the Services or other event that we determine, in our sole discretion, that a risk to the Services, to you or to any of our other users may be created if the Services were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, “Service Interruptions”). No Liability We shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Interruption. Notice of Interruption To the extent we are able, we will endeavor to post updates on our website on this page of our website, regarding any Service Interruption and resumption of service following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.

So that the Services are available for all users to enjoy, you represent, warrant and covenant that you (including, if you are an Organization, an individual acting on your behalf such as an employee or consultant) (i) will use the Services only in compliance with these Terms of Use (including the Privacy Policy and Anti-Spam Policy) and all applicable laws, including without limitation all applicable privacy laws and anti-spam laws and (ii) will not, and will not or permit or enable third party to:

We do not allow Organizations that offer the following types of services, products, or content, to use our Services:

ANY USE OF THE SERVICES (i) IN BREACH OF THESE TERMS OF USE (INCLUDING BUT NOT LIMITED TO THE ABOVE SUBSECTIONS ENTITLED “PROHIBITED ACTS” AND “PROHIBITED SERVICES”, THE PRIVACY POLICY OR THE ANTI-SPAM POLICY) OR (II) THAT IS NOT SPECIFICALLY PERMITTED UNDER THESE TERMS OF USE, IS STRICTLY PROHIBITED AND MAY RESULT, AT OUR SOLE DISCRETION, IN THE SUSPENSION OR TERMINATION OF YOUR ACCOUNT.

Any misuse of the Services may be reported to support@cakemail.com

We endeavour to use commercially reasonable and appropriate security measures to protect against unauthorized access to your account and Account Information, and to any data which may be stored by us. We cannot, however, guarantee absolute security of your account or the personal information we collect, and we cannot promise that our security measures will prevent third-party “attackers” from illegally accessing the Services or their content. YOU ACKNOWLEDGE THAT YOUR SUBMISSION OF ANY INFORMATION ON OR THROUGH THE SERVICES IS AT YOUR OWN RISK AND you accept all risks of unauthorized access to the Services, your Account Information and any other information you provide to us or through the Services. We will not be responsible for any losses arising out of the unauthorized use of your account and you agree to indemnify and hold us harmless, our officers, directors, shareholders, employees, distributors, agents, partners, licensors, information providers and account providers (collectively, “Representatives”), as applicable, for any improper, unauthorized or illegal uses of your account by a third party. You agree to immediately notify us of any unauthorized use or your account, or any other breach of security at support@cakemail.com For the purposes of this Section “Disclaimer” and Section “Limitation of Liability; Indemnity”, “we” or “us” means Cakemail and our Representatives.

Cakemail users should consult with their legal professionals to understand the full scope of their compliance obligations under GDPR. As a general rule, if you are an organization that is established in the EU, or if your organization is processing EU individuals’ personal data, the GDPR will be applicable to you.
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One crucial GDPR objective is the Accountability Principle. The Accountability Principle states that the data controller (Cakemail client) has to be able to demonstrate that its processing activities are compliant with the data protection principles set forth in the GDPR. The easiest way to demonstrate compliance is by documenting and communicating your GDPR compliance approach.
C.F. Art. 24 – EU GDPR – Responsibility of the controller

THE SERVICES ARE PROVIDED “AS IS”. THE USE OF THE SERVICES AND ANY RELIANCE BY YOU UPON THE SERVICES, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT THE SERVICES WILL BE FREE FROM LOSS, DESTRUCTION, DAMAGE, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND WE DISCLAIM ANY LIABILITY RELATING THERETO TO THE EXTENT PERMITTED BY APPLICABLE LAW.

WE MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES (I) THAT THE SERVICES ARE OR WILL BE ACCURATE, RELIABLE, CURRENT, UNINTERRUPTED OR ERROR FREE OR (II) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. IN PARTICULAR, EMAIL DELIVERY TO THE RECIPIENT INBOX IS NOT GUARANTEED. WITHOUT PRIOR NOTICE, WE MAY MODIFY, SUSPEND, OR DISCONTINUE ANY ASPECT OR FEATURE OF THE SERVICES OR YOUR USE OF THE SERVICES. IF WE ELECT TO MODIFY, SUSPEND, OR DISCONTINUE ANY PART OF OR ALL OF THE SERVICES, WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY.

The sole and exclusive remedy for any failure or nonperformance of the Services shall be for us to use commercially reasonable efforts to adjust or repair any portion of the Services that caused any such failure or nonperformance.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, DELICT, QUASI-DELICT, NEGLIGENCE, CONTRACT, WARRANTY, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, SHALL WE OR ANY OF OUR REPRESENTATIVES BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE DAMAGES, OR OTHER DAMAGES ARISING OUT OF OR RELATING TO (I) YOUR USE, MISUSE OR INABILITY TO USE THE SERVICES, (II) THE INTERRUPTION, SUSPENSION OR TERMINATION OF ANY PART OF OR ALL THE SERVICES, OR (III) YOUR VIOLATION OF ANY APPLICABLE LAW INCLUDING BUT NOT LIMITED TO ANTI-SPAM LAWS EVEN IF WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, WE ARE FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, OUR LIABILITY TO YOU WILL BE LIMITED TO THE AMOUNT PAID FOR THE LAST 3 MONTHS OF SERVICES PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

YOU WILL INDEMNIFY AND HOLD US AND OR OUR REPRESENTATIVES HARMLESS WITH RESPECT TO ANY SUITS, CLAIMS OR DEMANDS (INCLUDING REASONABLE LAWYERS’ FEES) ARISING OUT OF (I) YOUR BREACH OF THESE TERMS OF USE, INCLUDING THE PRIVACY POLICY OR THE ANTI-SPAM POLICY; (II) ANY DAMAGES CAUSED BY YOU OR THROUGH YOUR USE OF THE SERVICES, INCLUDING THIRD PARTY DAMAGES; AND (III) YOUR USE OR MISUSE OF THE SERVICES.

For the purposes of this Section “Termination of Your Account”, “account” includes, for an Organization, the account of that Organization and all of the accounts of the users of the Services which act on behalf of such Organization, such as employees and consultants.

Your account will be automatically terminated at the end of your pre-paid period if you ask us to stop providing the Services to you (you must send us a notice at least 7 days in advance). We reserve the right to modify or discontinue, temporarily or permanently, all or part of the Services, at any time with or without notice, without any liability whatsoever.

We may suspend your account immediately in the event of any breach by you (including, if you are an Organization, somebody acting on your behalf such as an employee or consultant) of these Terms of Use, including the Privacy Policy and the Anti-Spam Policy. Specifically, but without limiting the generality of the foregoing, an account will be suspended for malicious use or malicious intention, violation of any applicable laws including anti-spam laws, or any use of the software in a manner for which it is not designed or intended to be used. We will notify you by email of your account suspension. If the breach is not cured within 72 hours of the notice of suspension, we may, at our sole discretion, terminate immediately your account without incurring any liability whatsoever. If we terminate your account(s) for breach, no refund will be issued.

We shall have no liability to you or any third party because of any termination of your account.

To the maximum extent permitted by applicable laws, including privacy laws, all of your User Content will be immediately deleted from our servers upon termination of your account. This information cannot be recovered once your account is terminated.

If you do not log into a free account for more than 6 months, we reserve the right, at our sole discretion, to classify the account as inactive and to terminate it, without any liability whatsoever.

All provisions of these Terms of Use which by their nature should survive expiration or termination shall survive the expiration or termination of your account, including, without limitation, all ownership provisions, warranty disclaimers, limitations of liability and indemnification obligations contained in these Terms of Use.

If any provision of these Terms of Use is found to be unenforceable or invalid, that provision will be limited or struck to the minimum extent necessary so that these Terms of Use will otherwise remain in full force and effect and enforceable.

You agree (i) that these Terms of Use (including the Privacy Policy and Anti-Spam Policy) are the complete and exclusive statement of the mutual understanding between you and us and supersede and cancel all previous written and oral agreements, communications, and other understandings relating to the subject matter hereof and (ii) that all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under these Terms of Use or existing at law or equity shall be considered a waiver of such right or remedy.

No agency, partnership, joint venture, or employment is created as a result of the Terms of Use, and you do not have any authority of any kind to bind us in any respect whatsoever.

We may subcontract, without having to obtain your consent, any or all part of the provision of the Services and our obligations under the Terms of Use.

These Terms of Use shall be governed by and construed in accordance with the laws of the Province of Québec, Canada applicable to agreements made and entirely to be performed within the Province of Québec, Canada, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. Regardless of where you access or use the Services, you agree that any action at law or in equity arising out of or relating to these Terms of Use or your use of the Services shall be filed and adjudicated only in the federal or provincial courts located in the Province of Québec, Canada (district of Montreal), and you hereby irrevocably and unconditionally consent and attorn to the exclusive jurisdiction and venue of such courts over any suit, action or proceeding arising out of these Terms of Use or your access or use of the Services.

The parties hereto acknowledge having expressly required that these Terms of Use, the Privacy Policy and the Anti-Spam Policy are to be drawn up in the English language.

In case there are several versions of the Terms of Use in different languages, you agree that the English language version of the Terms of Use shall be the controlling version.

If you have any questions regarding the Services, the Terms of Use, the Privacy Policy, the Anti-Spam Policy, or wish to report any issue relating to the Services you were provided, please contact us by email at support@cakemail.com. If you have received an email from one of our clients and wish to be unsubscribed, please forward it to abuse@cakemail.com.