OptiMail Pro | Terms and conditions

Updated February 15, 2023

The below Terms of Use (the “Terms”) are a binding contract between you and OptiMail Pro, LLC (collectively, “OptiMail Pro,” “us,” “our,” or “we”). These Terms, together with OptiMail Pro LLC. Privacy Notice (here after the “Privacy Notice”), govern your use of optimailpro.com and other websites we own and/or operate (collectively, the “Site”), our suite of software and professional services owned and operated by OptiMail Pro, LLC or its affiliates and/or delivered under the business name OptiMail Pro (the “Software”) for managing your contacts and designing, implementing, and administering email, sms, and certain other marketing programs, our other digital properties or services, and your communications with us by any means (collectively the “Services”), whether as a Site user, customer of the Services, or representative of any legal entity that is a customer of the Services (in each case, a “Customer” and/or “you”, “your”).

Any terms we use in these Terms without defining them have the definitions given to them in the Privacy Notice. Additional, separate terms and conditions may apply to some Services, which shall be included and considered part of these Terms.

Sections “Acceptable Use Standards”, “Prohibited content”, “Contents and Ownership “, “Copyright”, “Services Security Features”, “Customer Content” and “Maintenance and Planned Outages” mandatorily apply to Customers subscribing to custom-made enterprise plans, regardless of other applicable contractual documentation. Other sections shall also apply regardless of any other specific applicable contractual documentation, except in case of contradiction. Applicable contractual documentation means any agreement signed by us and Customer pertaining to the Enterprise Services.

THIS AGREEMENT INCLUDES A CLASS ACTION WAIVER AND AN ARBITRATION PROVISION THAT GOVERNS ANY DISPUTES BETWEEN YOU AND OPTIMAIL PRO.

Acceptance. To access, browse, or use our Services, you must agree to be unconditionally bound by these Terms. You can accept the Terms by clicking to accept or by agreeing to the Terms where this option is made available to you in any agreement, electronic form, or the user interface for any Service we offer, or by actually using the Services or the Site. By using the Services, you agree to be bound by these Terms, you represent and warrant that you are at least 18 years of age and that you possess the legal right and ability to enter into these Terms of Use or, if you are accessing the Services on behalf of a legal entity, you represent and warrant that you are authorized to act on behalf of the legal entity and to bind such legal entity to these Terms of Use. You further represent and warrant that you are not based in Cuba, Iran, North Korea, Syria, or any other territory that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist-supporting” country and that you are not a prohibited or restricted person as defined by the US Government. These Terms will remain in effect while you use the Services. If you do not agree and accept these Terms, you may not use, and must immediately cease all use of, the Services. If you have any questions regarding these Terms, please contact us at support@optimailpro.com.

Registration. To use certain Services, you must first register as a Customer. By registering with Optimail Pro, you agree to provide us with accurate and complete information. Information you provide and the selections you make during registration, and any changes thereto from time to time, are an integral part of and governed by these Terms. You are responsible for maintaining the confidentiality of your account information and login credentials and for restricting access to your account. You agree to accept responsibility and liability for all activities that occur under your account whether lawful or unlawful and whether actually or expressly authorized by you. You must immediately notify us if your account is subject to unauthorized use.

Term. These Terms are effective on the date you begin to use the Services and continue until you close your account through the platform or until OptiMail Pro terminate these Terms by giving you prior notification. OptiMail Pro reserves the right to suspend your use of the Services at any time, with or without cause. If OptiMail Pro terminates your access to the Services without cause, we will refund the prorated portion of any prepaid fees for the Services. If OptiMail Pro suspends or terminates the Services for cause, such as for a breach or violation of the Agreement, OptiMail Pro will not refund any fees paid. We may archive your account if it is not accessed for a period of 90 days, in which case your account will be deactivated.

Privacy Notice. You acknowledge that you have read and understand our Privacy Notice, which is incorporated into these Terms by this reference. By using the Services, you represent and warrant that (a) any information you submit to us is truthful and accurate, (b) you will maintain the accuracy of that information, and (c) your use of our Services does not violate any applicable law, rule or regulation. Any information that you provide to us will also be subject to our Privacy Notice.

Service Communications. OptiMail Pro may use your contact information to communicate with you about our Services. For example, we may send you service announcements or administrative emails. We may use text, phone, or other means to authenticate your account or provide you with customer support. You understand that you receive these communications as part of your use of the Services, and you will not be able to opt out from receiving these service announcements and administrative messages.

Texting Consent. By providing OptiMail Pro with your wireless phone number, you consent to OptiMail Pro using text messaging to communicate with you. We may send you text messages related to the Services you use, including for security verification purposes.

Marketing Communications. We may send you marketing communications by email, mail, or other means in compliance with applicable law. You can opt-out of receiving marketing communications from OptiMail Pro at any time.

License Grant. As a Customer of the Services, on condition that your registration and subscription (if any) is current, we hereby grant you a limited non-exclusive, non-transferable, non-sublicensable license to read and access the Services and our information and materials contained on the Services in accordance with these Terms of Use. You may only use the Services in accordance with our Acceptable Use Standards (defined below) and as expressly permitted by these Terms. The permissions described herein will terminate automatically if you breach any of these Terms.

Acceptable Use Standards. Your use of the Services must comply with our community standards (“Acceptable Use Standards”) described in this section and with our Anti-spam Policy, available on demand and/or on our Site. You hereby agree to not:

Send messages that violate the CAN-SPAM or other anti-spam laws;
Use the Service for any unlawful or abusive purpose or in any way which interferes with our ability to provide the Services to other Customers or potential Customers;
Organize or participate in any Prohibited content (defined below);
transfer or attempt to transfer abnormally large files or streaming media presentations;
Use purchased, rented, or third-party lists of email addresses;
Use a false e-mail address, impersonate any person or entity, or otherwise mislead us or other Customers as to your identity;
Post false, inaccurate, misleading, defamatory, or libelous content (including Personal Information);
Use the Services in a manner that might confuse others as to Optimail Pro’s identity or disparage us;
Distribute or post spam, chain letters, or pyramid schemes;
Distribute viruses or any other technologies that may harm us, or the interests or property of Customers;
Commercialize, rent, retransmit, disclose, publish, resell (except pursuant to a written reseller agreement with us), assign, lease, sublicense, market or transfer the Services or any portion of it (including the Contents);
Copy, reverse engineer, translate, port, modify or make derivative works of any portion of the Services; or
Use the Services for any unlawful activities, in violation of any third-party rights, or in a manner that is otherwise objectionable as determined by OptiMail Pro at our sole discretion.

Without limiting the foregoing, tampering with the Services, conducting fraudulent activities on the Services, and all other illegal activities are prohibited and may subject a Customer to legal action and/or termination of access to the Services. We reserve the right to establish and revise these Acceptable Use Standards from time to time in our sole discretion.

We reserve the right to interrupt or restrict Service at any time, without notice to you, if we suspect you have violated our Acceptable Use Standards or otherwise engaged in fraudulent, abusive, or unlawful activity. You agree to cooperate with us in any fraud investigation and to use any fraud prevention measures we prescribe as set forth from time to time at the sole discretion of Optimail Pro. You also agree that we may report any activity that we suspect is unlawful to appropriate government authorities and to cooperate with any investigation conducted by any government authority.

Prohibited content. The Service may not be used for or contain the following (“Prohibited content”):

Gambling or games of chance, including campaigns, materials, posts, or otherwise that constitute gambling or any game of chance, or which promote giveaways, random drawings, raffles, or prizes, except promotions that comply with all applicable laws
Any content that encourages illegal activity, as well as campaigns, materials, posts, or any other activity that encourages, promotes, facilitates, or instructs others to engage in illegal activity
Adult subjects, nudity, or sexual acts
Promotion of hatred, violence, racial, or religious intolerance, campaigns, materials, posts, or other any other content that promotes or glorifies hatred, violence, racial or religious intolerance, or items that promote organizations with such views
Any campaigns, materials, posts, or other content where it appears that a person is attempting to use OptiMail Pro (directly or through another person) to benefit financially from a criminal activity or
Otherwise objectionable, campaigns, materials, posts, or other content as determined by OptiMail Pro in our sole discretion.

OptiMail Pro reserves the right to suspend any Customer whom OptiMail Pro determines, in our sole discretion, is or has engaged in a Prohibited content.

Subscription. This section applies to paying Customers who sign up for a paid Services plan online or via a purchase order established by our services.

By subscribing to a paid Services plan, the subscription contract comes into effect from the date of subscription, for an initial period chosen by the Customer.

At the end of the initial period, the subscription is automatically renewed for successive periods equivalent to the initial period.

Unless otherwise specified in a purchase order, the Customer may, at any time, terminate the automatic renewal by cancelling their subscription from their Account.

When the Customer ends the renewal, the subscription continues until the end of the current period and is not renewed. Any remaining credits will be lost.

Payment. When you sign up to a paid Services plan online, you are required to select a plan level and you will be charged according to the terms of the applicable paid plan level. You are responsible for paying the fees associated with the plan level you have selected, as well as any and all applicable sales and use taxes for your purchase of Services based on the address that you provide at signup. Your monthly or annual payment is due on the date you sign up and billing for the following month or years will occur on the same date each month or year.

If you downgrade or upgrade your plan level during a billing cycle, we will issue a credit note for the remaining prepaid amount on a pro-rata basis. The credit note will automatically be applied to your next invoice.

You are required to maintain a valid payment method, such as debit or credit card information, on file with us. You authorize OptiMail Pro to charge your payment method for the amount due to OptiMail Pro for the Services, any sales and use taxes and any applicable late fees or interest. If your card is replaced for any reason, you authorize us to charge such a replacement card for the amount due to OptiMail Pro for any Services. The person submitting the card for payment represents and warrants that they are authorized to use such card, that the card may be charged as agreed herein, and that such charges will not be rejected. You agree that you are solely liable for any payment or credit card fraud, abuse or unauthorized use by you or others.

If we stop providing the service to you for any reason and terminate your account without cause, we will provide you a refund of the pro rata amount of the monthly or annual charge that was prepaid. Otherwise, you won’t be entitled to a refund or credit for any reason.

If you do not pay on time or if we cannot charge the payment method you have on file for any reason, we reserve the right to either suspend or terminate your access to the Services. In addition, if any payment is not received within 30 days after the due date, then we may charge a late fee of $10 and we may assess interest at the rate of 1.5% of the outstanding balance per month (18% per year), or the maximum rate permitted by law, whichever is lower, from 30 days after the due date until the date paid. If your unpaid fees are referred to an attorney or collections agency, you shall pay all reasonable attorney’s fees or collections agency fees.

OptiMail Pro uses PCI DSS-compliant third party payment providers to process payments, including Adyen, Paypal, GoCardless, and Chargebee, and OptiMail Pro reserves the right to process payments using any provider. Your payment is subject to the terms and conditions imposed by the third-party payment provider.

Contents and Ownership. Unless otherwise expressly indicated, the information contained on the Services and any updates or improvements thereto are owned, controlled, or licensed by OptiMail Pro or its affiliates or licensors, including, but not limited to (a) all platforms, software, and proprietary technology; (b) products, services, and related documentation available on the Services; (c) all features, functionality, ideas, images, illustrations, designs, photographs, video clips, text, graphics, icons, designs, software code, and other materials; and (d) all names, logos, taglines, trade dress, copyrights, patents, trademarks, or other intellectual property (collectively, the “Contents”). Contents not owned or controlled by OptiMail Pro are the property of their respective owners. The Contents are protected by U.S. and foreign copyright, trademark, trade dress, or other proprietary right laws and international conventions. No license to or regarding any of the Contents is granted in connection with your use of the Services, except as specifically set forth in these Terms or the applicable license terms pertaining to certain OptiMail Pro Services. All rights that are not granted to you are reserved by Optimail Pro. Only a duly authorized officer of OptiMail Pro may grant permission or a license to use any of our Contents; any attempted grant or similar promise by anyone other than a duly authorized officer of OptiMail Pro is invalid.

Copyright. You do not have permission to copy, reproduce, make derivative works from, distribute, republish, download, display, perform, post electronically or mechanically, transmit, record, or mirror any of the Contents without the prior written permission of Optimail Pro. You may only display, download, and print in hard copy format the Contents for the purposes of using the Services as an internal or personal business resource.

Trademarks. Optimail Pro’s registered and unregistered trademarks and trade dress, including the OptiMail Pro word mark, and OptiMail Pro graphics, logos, page headers, button icons, scripts, and service names, taglines, trade dress, and other trademarks, may not be copied, imitated, or used, whether in whole, partial or modified form, without the prior written permission of Optimail Pro. You may not use any meta tags or any other hidden text utilizing a OptiMail Pro name, trademark, or product name without Optimail Pro’s prior written permission. Third-party trademarks and service marks used on our Services are the property of their respective owners. OptiMail Pro and the other licensors of the marks on our Services reserve all rights with respect to all Contents and all intellectual property.

Feedback. You may from time-to-time provide OptiMail Pro materials, communications, suggestions, comments, improvements, ideas or other feedback related to the Services (“Feedback”). You hereby grant to OptiMail Pro all rights, titles, and interests in and to any Feedback. In the event this grant is not sufficient for us to fully realize and use the Feedback, you additionally grant OptiMail Pro a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use and incorporate into the Services or our website any of the Feedback. By providing Feedback, you represent that the Feedback is not subject to any intellectual property claim by a third party or any license terms which would require products or services derived from that Feedback to be licensed to or from, or shared with, any third party.

Reports. OptiMail Pro may, from time to time, de-identify the Personal Information (“De-identified Information”) that we collect directly from you and combine it with others’ De-identified Information in order to generate statistics, reports and studies. OptiMail Pro uses these reports and studies for internal purposes only. Any such reports or studies are the sole and exclusive property of Optimail Pro. You hereby assign any rights you may have to such reports, studies, and your De-identified Information contained therein to OptiMail Pro in perpetuity throughout the world for any and all present or future uses in any and all languages and for no compensation. All De-identified Information will be treated as nonconfidential and nonproprietary. OptiMail Pro shall be under no obligation of any kind with respect to such De-identified Information and shall be free to reproduce, make derivative works from, use, disclose, and distribute the Reports to others without limitation. Additionally, OptiMail Pro may use any ideas, concepts, know-how, or techniques contained in generating reports or studies for any purpose whatsoever including, but not limited to, developing, manufacturing, or marketing products incorporating such information.

Services Security Features. You are strictly prohibited from violating or trying to violate the security features of the Services, such as by (a) accessing data not intended for you or logging onto a server or an account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures unless we expressly authorize that you do so in writing; (c) attempting to interfere with service to any user, host or network, such as by means of submitting a virus to the Services, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” or (d) sending unsolicited email that you are not authorized to send, including promotions and/or advertising of products or services forging any TCP/IP packet header or any part of the header information in any email.

You hereby agree not to use any device, software, or routine to interfere or try to interfere with the proper working of this Services or any activity being conducted on this Services. You further agree not to use or try to use any engine, software, tool, agent or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Services other than the search engine and search agents that we make available on this Services and other than the generally available third-party web browsers. If you violate our system or network security, you may face civil or criminal liability. We will investigate occurrences that may involve such violations. We may involve or cooperate with law enforcement authorities in prosecuting users who are involved in such violations.

Customer Content. The Services may contain features that allow Customers to submit content as part of managing contacts and designing and administering email, SMS, and certain other marketing programs and to send certain communications and other content using the Services, (any such content submitted referred to as “Customer Content”). You represent that you are the owner of any Customer Content you submit and/or have the necessary rights, licenses, and authorization to distribute it.

By submitting your Customer Content, you hereby grant us an irrevocable, worldwide, fully paid-up and royalty free, non-exclusive, unlimited license, including the right to sublicense and assign to third parties, and the right to use and disclose your Customer Content, in order to provide you with the Services, during the performance of these Terms. To the extent permitted by applicable laws, you hereby covenant not to assert against Us any moral rights you may have in any of Your Customer Content. You further hereby authorize OptiMail Pro to mention your business name and logos as trade references on any communication medium including social media. These mentions are granted free of charge. You may terminate this authorization at any time by sending a simple email to support@OptimailPro.com.

OptiMail Pro is not responsible for any Customer Content. We reserve the right to withhold approval, or remove Customer Content for any reason at our sole discretion, but we have no obligation to police Customer Content on the Services. We further reserve the right to remove any Customer Content for any reason and to interrupt or restrict the Services at any time, without notice to you or any other Customers, if we suspect activity that is unlawful, abusive, or otherwise in breach of these Terms.

If your account is terminated, you acknowledge and agree that we may permanently delete your account and all the data associated with it, including Customer Data. If your account has been terminated, your username will no longer be available for use and may not be reclaimed or used for any future account.

Third Party Rights. We take the rights of others very seriously. If you have any concerns that Customer Content, or other content made available by third parties via the Services is improper or infringing, please contact us at support@optimailpro.com. If you would like the reported content removed, please provide:

A detailed description of the content, including where it is located;
A statement that you have a good faith belief that the third party does not have permission to use the content;
A statement that you are the owner, or exclusive agent of the owner, of the content;
Your contact information, including telephone number and physical address; and
A signed and sworn statement, under penalty of perjury, that your statements above are true.

Links to Other Websites. Links to third-party websites from the Services are provided solely for your convenience. OptiMail Pro is not responsible for the content of any other websites, nor do we make any representations about the content or accuracy of material on any other websites. The inclusion of any linked website on our Services does not imply our approval or endorsement. If you click through to another website, you do so at your own risk, and you will be subject to that website’s privacy practices and not ours. Any concerns regarding any website or hyperlink should be directed to the website’s owner or operator.

Maintenance and Planned Outages. OptiMail Pro may limit or suspend the Services from time to time to perform scheduled maintenance or to stop a violation of this Agreement, to prevent material harm to OptiMail Pro or its customers or as required by applicable law. OptiMail Pro will endeavor to give Customer reasonable advance notice of any limitation or suspension so that Customer can plan around it or address the issue that has prompted OptiMail Pro to take such action. There may be some situations, such as security emergencies, where it is not practicable for OptiMail Pro to give such advance notice. OptiMail Pro will use commercially reasonable efforts to narrow the scope and duration of the limitation or suspension as needed to resolve the issue that prompted such action. In any case, no credit of service shall be granted to Customer in such cases of suspension.

Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE SERVICES ARE PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS WITH ALL FAULTS AND DEFECTS. WE MAKE NO WARRANTIES REGARDING THE SERVICE WHATSOEVER AND EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AND, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, ON OUR BEHALF AND THAT OF OUR AFFILIATES, LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT. WE FURTHER DISCLAIM ANY WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, DEVICES OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. WE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE ON THE SERVICES IS ACCURATE, COMPLETE, OR CURRENT. WE MAKE NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR VIRUS FREE. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to You insofar as they relate to implied warranties. If You rely on the representations or warranties of any third persons with respect to the Services (including without limitation by dealers or resellers of the Services) beyond those made by OptiMail Pro, your sole remedy for such reliance is against the third person making such representation or warranty.

YOU USE THE SERVICES AT YOUR OWN RISK. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF OUR SITE, FROM THE CONDUCT OF ANY USERS (WHETHER ONLINE OR OFFLINE), OR OTHERWISE. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, SOFTWARE, MODEM, TELEPHONE OR OTHER PROPERTY RESULTING FROM YOUR USE OF (OR INABILITY TO USE) OUR SERVICES. WE WILL NOT BE LIABLE TO YOU IF YOU ARE UNABLE TO ACCESS INFORMATION THROUGH OUR SERVICES. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM OPTIMAIL PRO, ITS OFFICERS, EMPLOYEES, OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

Indemnification. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS OPTIMAIL PRO AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND ASSIGNS FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COST, EXPENSE, OR DEMAND, INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES, DUE OR RELATING TO OR ARISING OUT OF (I) YOUR USE OR MISUSE OF OUR SERVICES, (II) ANY OTHER PERSON’S USE OF ANY ACCOUNT OR PIN YOU MAINTAIN, REGARDLESS OF WHETHER SUCH USE IS AUTHORIZED BY YOU; (III) YOUR PROMISES OR STATEMENTS MADE IN THIS AGREEMENT; (IV) YOUR BREACH OF OUR TERMS, OR (V) ANY BREACH OF YOUR REPRESENTATIONS AND WARRANTIES SET FORTH IN OUR TERMS.

Limited Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OPTIMAIL PRO OR OUR AFFILIATES, OR ANY OF OUR OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS OR ANY OF OUR OR THEIR EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, SUPPLIERS OR THIRD-PARTY SERVICE PROVIDERS BE LIABLE TO YOU OR ANY OTHER PERSON RELATED TO OR ARISING OUT OF USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, FOR SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE; LOSS OR COMPROMISE OF DATA, PROFITS OR GOODWILL; BUSINESS INTERRUPTION; COMPUTER FAILURE OR MALFUNCTION; PERSONAL INJURY OR PROPERTY DAMAGE, OR OTHER DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, COPYING, OR DISPLAY OF THE CONTENT OF THIS SITE. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, DEFAMATION, STRICT LIABILITY, MISREPRESENTATION, PRODUCTS LIABILITY, VIOLATIONS OF LAW (INCLUDING REGULATIONS), NEGLIGENCE, AND OTHER TORTS, AS WELL AS THIRD-PARTY CLAIMS, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, OPTIMAIL PRO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE, AND REGARDLESS OF THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. YOU HEREBY AGREE TO WAIVE ALL LAWS THAT MAY LIMIT THE EFFECTIVENESS OF THE FOREGOING RELEASES. THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW AND SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

WITHOUT LIMITING THE FOREGOING PROVISIONS OR THE PROVISIONS OF OUR PRIVACY NOTICE IN ANY WAY, THE LIMIT ON TOTAL CUMULATIVE LIABILITY OWED BY OPTIMAIL PRO TO YOU OR ANY PERSON FOR ANY CLAIMS ARISING FROM OR RELATING TO THE SERVICES SHALL BE LIMITED TO A MAXIMUM OF THE AMOUNT YOU HAVE PAID OPTIMAIL PRO FOR THE SERVICES OR ACCESS TO OUR SERVICES IN THE THREE (3) MONTHS PRECEDING THE DATE OF THE CLAIM GIVING RISE TO SUCH LIABILITY. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR OPTIMAIL PRO’S SERVICES MUST BE COMMENCED WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

Force Majeure. OptiMail Pro shall be excused from any delay or failure in performance hereunder caused by reason of occurrence or contingency beyond its reasonable control, including without limitation, acts of God, earthquake, fire, flooding, riots, war, pandemic, or government requirements.

Assignment. You may not assign, delegate, or transfer these Terms, or your rights or obligations hereunder, or your subscription or other use of the Services, in any way (by operation of law or otherwise) without prior written consent from OptiMail Pro. Any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. We may transfer, assign, or delegate these Terms and our rights and obligations without your consent. Subject to the foregoing, these Terms shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Notices. Notices to you are effective when sent by email to the email address we have on file for you or, at our option and if applicable, three (3) days following the date such notice is deposited in the US Mail addressed to the address we have on file for you. You are responsible for notifying us of any changes in your contact information. Written notice to OptiMail Pro shall be effective when directed to our Customer Care Department and received at our address available at OptiMail Pro.com/contact. Your notice must specify your name, email address, telephone contact and OptiMail Pro account number.

Governing Law and Venue. Claims relating to, including the use of, the Services and the Contents contained herein are governed by the laws of the United States and the State of Missouri, without regard to its conflicts of laws rules. Any legal suit, action, or proceeding arising out of or related to these Terms or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Missouri. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

Class Action Waiver. YOU HEREBY WAIVE ANY RIGHT TO COMMENCE OR PARTICIPATE IN ANY CLASS ACTION LAWSUIT AGAINST OPTIMAIL PRO RELATED TO ANY CLAIM, DISPUTE OR CONTROVERSY, AND, WHERE APPLICABLE, YOU HEREBY AGREE TO OPT OUT OF ANY CLASS PROCEEDING AGAINST OPTIMAIL PRO OTHERWISE COMMENCED.

Arbitration Agreement. Please read this section carefully. This section affects rights that you may otherwise have. It provides for resolution of most disputes through arbitration instead of court trials and class actions.

YOU AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.

Any claim or dispute brought by you arising from or relating to these Terms, or to the relationships that result from these Terms, including disputes about the validity, scope, or enforceability of this arbitration provision (collectively, “Covered Disputes”) may, at OptiMail Pro’s option and in its sole discretion, be settled exclusively by binding, individual arbitration, rather than in court, and to be held in Jackson County, Missouri, or another location mutually agreeable to the parties. The arbitration will be conducted by the American Arbitration Association under its rules and procedures. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Prior to initiating any arbitration, you will give OptiMail Pro at least 60 days’ advanced written notice of your intent to file for arbitration. You must provide such notice by email to support@OptiMailPro.com. During such 60-day notice period, the parties will endeavor to settle amicably by mutual discussions any Covered Disputes. Failing such amicable settlement and expiration of the notice period, either party may initiate arbitration. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity, and any award of the arbitrator(s) will be final and binding on each of the parties. Judgment upon the award rendered by an arbitrator may be entered in any court of competent jurisdiction. The arbitrator will apply applicable law and the provisions of these Terms, and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. You are not entitled to arbitrate any Covered Dispute as a class, representative, or private attorney action, and the arbitrator(s) will have no authority to proceed on a class, representative, or private attorney general basis. If any provision of the Agreement to arbitrate in this section is found illegal or unenforceable, the remaining arbitration terms shall continue to be fully valid, binding, and enforceable (but in no case will there be a class, representative, or private attorney general arbitration). These Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA) and, where otherwise applicable, by the laws of the State of Missouri. OptiMail Pro reserves all rights to pursue any and all claims and remedies, whether in a court of law or other tribunal, and in no way shall the foregoing be interpreted to limit OptiMail Pro’s rights in this regard.

General. No joint venture, partnership, employment, or agency relationship exists between you and OptiMail Pro as a result of these Terms or your use of the Services. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed to reflect the parties’ original intent, and the remaining portions shall remain in full force and effect. You hereby consent to OptiMail Pro publicizing the existence (but not the terms) of the relationship contemplated hereunder as a part of OptiMail Pro’s promotional and marketing activities from time to time. These Terms, along with the agreements incorporated by reference herein, constitute the entire Agreement between OptiMail Pro and you with respect to your access to and use of the Services and your OptiMail Pro account, and supersedes all prior or contemporaneous communications and proposals, whether oral or written, between OptiMail Pro and you with respect thereto and, with respect to your use of the Services, supersedes the terms of any other party’s terms and conditions. These Terms may be executed by the parties hereto in separate counterparts, as applicable to the Services, each of which when so executed and delivered shall be an original for all purposes, but all such counterparts shall together constitute but one and the same instrument. The failure of OptiMail Pro to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.

Consent to Do Business Electronically. By accessing our Services, subscribing with us, creating a OptiMail Pro account, typing your name into any of our electronic forms and indicating your acceptance, or submitting information by clicking a box, you consent to (a) OptiMail Pro communicating with you electronically; (b) receiving all applications, notices, disclosures and authorizations (collectively, “Records”) from OptiMail Pro electronically; and (c) entering into agreements and transactions using electronic Records and signatures. Please note that federal law treats electronic signatures as having the same legal force and effect as if they were signed on paper by hand, and online contracts have the same legal force as signing an equivalent paper contract in ink. OptiMail Pro will use electronic documents for all communications, agreements, disclosures, authorizations, and other documents necessary to provide you with the Services. You must have a computer or other web-enabled device, a connection to the internet, an active email account, and the ability to receive and read electronic files to conduct business with us electronically. You agree to be responsible for keeping your own Records. You may print or download Records from the Services and keep them for your own reference. If you require assistance with your Records, wish to receive Records in paper format, or wish to withdraw your consent to receiving electronic Records from us, please contact us at support@OptiMailPro.com. Agreements and transactions executed prior to this request will remain valid and enforceable.

Modification of Terms of Use. OptiMail Pro reserves the right to revise these Terms of Use by updating the Terms of Use posted to its website without prior notice. Your continued use of our Services following the posting of changes constitutes your acceptance of such changes. You are advised to periodically visit this page to determine the then current Terms of Use.