Interamind Remarkety Terms of Service
Interamind, Ltd. (“Interamind”, “Remarkety,” or “us”, “our”, “we”) provides Remarkety, an automatic customer retention service (the “Service”). These Terms of Service (“Terms”) govern your access and use of the Service. “Merchant,” or “you” means any entity that uses the Service. Merchants must agree to these Terms prior to using the Service. “Customer” means a customer of a Merchant.
Please read these Terms carefully. By registering to use the Service or using the Service, you signify your assent to these Terms. Changes may be made to these Terms from time to time, and we will make commercially reasonable efforts to notify you of such changes. Use of the Service subsequent to such changes in these Terms signifies your consent to such changes. If you do not agree to any of these Terms, please do not click “I agree” and do not use the Service. By clicking “I agree”: (1) you acknowledge that you have read, understood and agreed to these Terms; and (2) you confirm that you are acting as a representative of your company or organization and have the authority to enter into this Agreement on behalf of your employer.
Remarkety Service. Subject to the terms and conditions hereof, you may use the Service to send emails and messages (“Messages”) to your Customers for your own business purposes. You may not use the Service to provide any similar services to third parties, for example, as a service bureau. You may not use the Service to send Messages under any name other than your own or with fraudulent or misleading header information. Notwithstanding the foregoing, if you offer a package of website marketing and development services to third parties, then you may manage these Services as well on behalf of such third parties, so long as each such third party receiving Services hereunder accepts these Terms.
Account Registration. When you complete the registration process, you create a Remarkety account. Your account allows you to use the Service, subject to these Terms. You must provide all information as requested in the registration process, and you represent and warrant that all such information shall be accurate and complete. You shall keep such information up-to-date. You shall immediately notify us if there is a security breach of your account. You shall immediately notify us of any unauthorized use of your Remarkety account or password. You are fully and solely responsible for the security of your computer system and all activity on your account, even if such activities were not committed by you.
Intellectual Property. All right, title and interest in the Service, all content and templates provided by Remarkety, including any related documentation and all enhancements, derivatives, bug fixes or improvements to the foregoing shall at all times remain solely with Remarkety or its licensors. Remarkety shall retain all right, title and interest in the trade names, trademarks, and logos of Remarkety. All references in these Terms or any other communications to the sale, resale or purchase of the foregoing or any service shall mean only the right to use the Service pursuant to these Terms. As between the parties, and subject to the foregoing, all right, title and interest in all trade names, trademarks, and logos of Merchant shall at all times remain solely with Merchant or its licensors.
Payment. In consideration for the use of the Services, you shall make payments of amounts set forth in a separate quotation provided by us to you in writing or on the Remarkety website. We shall charge you automatically through a third party payment service in respect of each calendar month, and you agree to make full payment in respect of the Services through such mechanism. Amounts due hereunder are exclusive of VAT and applicable taxes. You shall make payments hereunder free and clear, and without deduction or withholding, except as required by law. If you are required by law to make any deduction or withholding, you shall make payment of such additional amounts as is necessary such that Remarkety shall receive the amounts due hereunder without any such deduction or withholding. Late payments shall bear interest at the rate of 18% per annum or, if lower, the maximum amounts permitted under applicable law.
Use and Use Restrictions. You represent and warrant that you have full authority to enter into these Terms, and that the provision of the Service to you and associated services hereunder will not violate any other of your contractual or other obligations. Except as set forth expressly herein, you shall not, and shall not permit any third party, to (a) reverse engineer, or attempt to find the underlying code of, the Service; (b) modify the Service or any Messages, or insert any code or product, or in any other way manipulate the Service or Messages in any way not permitted by the functionality of the Service itself; (c) sell, transfer, sublicense or distribute the Service or bypass any security measures of Remarkety. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, you shall inform us in writing in each instance prior to engaging in the activities set forth above. Merchant shall not remove any “unsubscribe” details from any Messages.
Content. The Service allows you to compose Messages or to customize templates of Messages that we may provide. Remarkety cannot and does not monitor the content of all Messages. All content provided by you for inclusion in any message shall be of your original authorship and shall not (a) contain any defamatory, libelous, or otherwise offensive content, (b) contain or link to any obscene, pornographic, adult-only or sexual content, (c) contain or link to any illegal, immoral, deceptive or fraudulent material, or material that encourages illegal or immoral conduct, (d) contain or link to any racist or hate speech, or which material promotes or endorses any violent acts, (e) contain any material (including any logos, names and trademarks) that infringes the intellectual property, moral, privacy or publicity rights of third parties, or contain any worms, viruses, spyware, adware or other malicious or intrusive software. Remarkety may refuse to send any content provided by you that, in the sole discretion of Remarkety, violates these Terms or otherwise may damage the business interests of Remarkety. Notwithstanding the foregoing, Remarkety shall have no obligation to Monitor any content for compliance with these Terms.
Confidentiality.Merchant may disclose to Remarkety certain information regarding its business and operations. Merchant acknowledges that Remarkety may disclose to Merchant certain information confidential or proprietary to Remarkety regarding the Service. Either party (the “Receiving Party”) receiving such information from the other party (the “Disclosing Party”) which the Disclosing Party has marked or identified as confidential or proprietary, or which should reasonably be considered confidential or proprietary given its content and the circumstances of its disclosure (collectively, “Confidential Information”), agrees to keep such Confidential Information confidential during and after the Term and not disclose or use such Confidential Information except in performance of the Receiving Party’s obligations hereunder. Confidential Information shall not include information (i) already lawfully known to or independently developed by the Receiving Party without access to or use of the Confidential Information of the Disclosing Party, (ii) lawfully received by the Receiving Party from any third party without restrictions, (iii) publicly and generally available, free of confidentiality restrictions; or (iv) required to be disclosed by law, regulation or the lawful request of any regulatory authority, provided that the Receiving Party provides prompt notice of such requirement to the Disclosing Party. In such event, the Disclosing Party shall reimburse the Receiving Party for its costs incurred in compiling and disclosing the required information. The Receiving Party shall restrict disclosure of Confidential Information to those of the Receiving Party’s employees and officers with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. Merchant will not disclose any information regarding the results of any testing or evaluation of the Service to any third party without Remarkety’s prior written consent.
Indemnification. Merchant shall defend, indemnify and hold harmless Remarkety (and its employees, officers, directors and subcontractors) from and against any and all suits, proceedings, assertions, damages, costs, liabilities or expenses (including court costs and attorneys’ fees) which Remarkety may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from or relating to any breach of these Terms by Merchant.
Disclaimer. The Service is provided on an “AS IS” basis. Remarkety expressly disclaims any warranties, including without limitation, express or implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. The Service may provide you with specific recommendation or suggestions for customer retention campaigns. Remarkety does not make any warranty in respect of any results to be obtained as a result of any recommendations or suggestions, and does not warrant that any campaign or the use of the Service will increase your revenues or market share. Any decisions made based on recommendations or suggestions provided by Remarkety are your own responsibility. Remarkety does not represent or warrant that the sending of any Messages complies with applicable law. It is your responsibility to ensure that your collection of user data and the sending of any Messages complies with applicable law.
Limitation of Liability. in no event shall Remarkety be liable for any consequential, indirect, direct, special or punitive damages, arising out of or relating to the Service. Remarkety’s entire liability under any provision of these terms shall not exceed amounts you have paid to Remarkety to use the Service in the 12 months prior to the applicable claim. Remarkety shall have no responsibility for the reactions of any Customer to the receipt of any Messages including, without limitation, in respect of the receipt of messages not in compliance with directions provided by Merchant. Remarkety shall not have any liability for the failure of the Services to send Messages according to rules provided by Merchants.
Term. The term of this agreement shall commence on the date Merchant accepts these Terms and shall continue indefinitely unless otherwise terminated in accordance with these Terms (the “Term”). Either party may terminate this agreement with advance written notice of 24 hours. Remarkety may terminate these Terms upon written notice if it should have reason to believe that Merchant has breached these Terms or is using the Service in violation of applicable law. Upon termination of these Terms for any reason, (a) Merchant shall immediately cease to make any use of the Service (including any information or analysis provided through the Service) and (b) Merchant shall promptly return to Remarkety all copies of Remarkety Confidential Information or destroy same. Remarkety may terminate any content and data provided by you upon termination. The termination of these Terms shall not affect any payment obligations hereunder. Section 3-14 shall survive the termination of these Terms for any reason.
Miscellaneous. Remarkety and Merchant are and intend to remain independent parties. Nothing contained in these Terms shall be deemed or construed to create the relationship of principal and agent or of partnership or joint venture, and except as otherwise specifically agreed upon in writing by the parties, neither party shall hold itself out as an agent, partner or employee of the other. Neither party shall have any right to bind the other party. These Terms represent the entire agreement between the parties regarding the subject matter hereof and supersede any and all other agreements between the parties regarding the subject matter hereof. A waiver of any default hereunder or of any of the terms and conditions of these Terms shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition. Remarkety may assign its rights or obligations pursuant to these Terms. Merchant agrees not to assign any rights under these Terms; any attempted assignment shall be null and void. If any provision of these Terms shall be deemed invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of these Terms which shall remain in full force and effect. Any notices requires to be sent by Remarkety hereunder maybe sent to the email address or other contact information provided by Merchant in its account, or any updates to the same provided by Merchant in writing. These Terms shall be governed by the laws of Israel, and the competent courts in Tel-Aviv/Jaffa, Israel shall have exclusive jurisdiction to hear any disputes arising hereunder.
Last updated: January 2013