These TERMS OF SERVICE (this “Agreement”) is made between Rytina (“Rytina”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “You”).
Rytina provides certain services relating to the management of package information and transmission of email and text messages (the “Services”) through the web site located at www.rytina.com (the “Site”).
All access to and use of the Services available through the Site is subject to the terms of this Agreement. If You wish to access and use the publicly available portions of the Services and the Site, You may do so only in compliance with the terms of this Agreement. If You have placed or later place an order (whether through the Site, by email, phone or otherwise) with Rytina (Your “Order”) seeking to access and use certain of the Services requiring registration, Rytina is willing to accept Your Order and provide You with access to and use of those Services only if You comply with the terms and conditions of this Agreement.
Without limiting the foregoing, the Services are not available to individuals under the age of 18 or who do not meet any of the other qualifications included in this agreement.
PLEASE CAREFULLY READ THIS AGREEMENT. BY SUBMITTING AN ORDER OR BY ACCESSING OR USING THE SITE OR SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, Rytina IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE SITE OR SERVICES AND YOU MUST NOT ACCESS OR USE THE SITE OR SERVICES. IF YOU ACCESS OR USE THE SITE OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
This Agreement is entered into as of the earlier of the date You first submit an Order relating to the Services or first access or use the Services or a Site (the “Effective Date”). This Agreement consists of the following terms and conditions and each Order submitted by You and accepted by Rytina, each of which is incorporated in and made a part of this Agreement. Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Services and the Sites and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Services and the Sites. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Rytina reserves the right, at any time, to change or modify the Site, Services or this Agreement, by making such change or modification available on the Site or by providing other notice to You. Any such change or modification will be effective 30 days after posting on the Site or such other notice. As applicable, You will be deemed to have agreed to such change or modification through Your continued use of the Site or Services.
1. Definitions. Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States.
2. Orders and Confirmation. All Orders placed by You will be governed by the terms of this Agreement. Rytina will confirm Your Order either through the Site at the time you submit Your Order or by providing You with access to the Services (each, a “Confirmation”). If the terms of any Order conflict with the terms of any Confirmation of that Order, the terms of the Confirmation will govern and control with respect to the Services provided to You. This Agreement will govern and control the terms of each Order and Confirmation under this Agreement. By accessing or using any of the Services, You agree to be bound by the terms of this Agreement and each applicable Order and Confirmation with respect to those Services.
4. Restrictions. You acknowledge that the Services, Sites, Software, and the databases, software, hardware and other technology used by or on behalf of Rytina to provide the Services and operate the Sites (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of Rytina. You will not, and will not permit any third party to: (1) access or use the Services or the Sites, in whole or in part, except as expressly provided in this Agreement; (2) use the Site, Services or any Software to harvest or collect email addresses or other contact information of third parties by any means for the purposes of sending unsolicited emails or other unsolicited communications; (3) use the Site, Services or any Software in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Services; (4) use automated scripts to collect information from or otherwise interact with the Site, Services or any Software; (5) use the Site, Services or any Software to intimidate or harass any other people or entities; alter, modify, reproduce, create derivative works of the Services, Technology, or any Software; (6) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Services or any Software, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Services or any Software, or access thereto, available to any third party; (7) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Site, Services, Technology or any Software; (8) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Sites, Services, Technology, or any Software; or (9) interfere in any manner with the operation or hosting of the Sites, Services, Technology or any Software, or attempt to gain unauthorized access to the Sites, Services, Technology or any Software. You will not allow any access to or use of the Services by anyone other than Your authorized Users, and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
5. Payment. You agree to pay Rytina all fees set forth in each Order or Confirmation and any fees otherwise specified on the Site or through the Services (“Fees”). All Fees will be billed as indicated in each Order or Confirmation. If the applicable Order or Confirmation does not specify any applicable billing terms, the initial payment of Fees specified under that Order or Confirmation for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant Rytina the right to charge the credit card or debit the bank account provided to Rytina for all Fees incurred under this Agreement. All Fees will be non-refundable once paid to Rytina (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1 1/2% per month or the maximum amount permitted under applicable law. Rytina may change any portion of the Fees by posting the changes to the Sites or otherwise notifying You through the Services of the change, such changes to take effect at the beginning of the next period of this Agreement. If Rytina requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.
6. Ownership. Rytina retains all right, title and interest, including, without limitation, all IPR (as defined below), in and to the Sites, Services, Technology, Rytina Content (as defined below), any Software, and any additions, improvements, updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to You to use them apart from Your right to access the Services under this Agreement. The Rytina name, logo and the product and service names associated with the Services are trademarks of Rytina (or its third party providers), and no right or license is granted to You to use them. For purposes of this Agreement, “IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
1. Rytina Content. You with access to certain data, information and other content through the Site and Services (“Rytina Content”). Unless otherwise noted on the Site, as between You and Rytina, all Rytina Content is owned by Rytina. Subject to this Agreement, each User may: (a) access the Rytina Content (without modification) solely for Your own business purposes in connection with Your use of the Services; and (b) distribute the Rytina Content (without modification) as incorporated into emails generated and sent by You through the Services. Except as expressly provided in this Agreement, You will not, and will not permit any User to: (i) alter, modify, reproduce, or create derivative works of the Rytina Content; (ii) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer the Rytina Content, including, without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties; or (iii) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with the Rytina Content. Certain of the Rytina Content includes or is based on data, information and content from independent third party providers (“Third Party Content”). Rytina uses commercially reasonable measures to ensure that the Third Party Content is reliable, but Rytina has no independent basis to verify or contradict the accuracy or completeness of the Third Party Content and will not be responsible for any erroneous Third Party Content provided through the Services.
2. Your Content.
8. Warranties and Disclaimer.
1. By Rytina. Except in the case of any Services provided during a Trial Subscription, Rytina represents and warrants to You that Rytina will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with this Agreement. Rytina’s sole obligation and Your sole and exclusive remedy in the event of any failure by Rytina to comply with the foregoing sentence will be for Rytina to, at Rytina’s option, re-perform the affected Services or refund to You the fees You have actually paid for the affected Services during the month in which the failure occurred. Notwithstanding the foregoing, You remain solely and entirely responsible for Your compliance with, and will defend, indemnify and hold harmless Rytina from and against any claims arising from any actual or alleged violation by You of any international, federal, state or local treaties, laws, rules, regulations or ordinances regarding Your use of or access to the Site or Services or regarding your business, products or services, including, without limitation, regarding data and data privacy and the transmission of electronic mail messages, whether solicited or unsolicited.
2. By You. You hereby represent, warrant, and covenant for the benefit of Rytina that: (1) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (2) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; and (3) Your Content, and any other data, information or content You provide to Rytina in connection with this Agreement and Your access to the Site and use of the Services, is correct and current.
3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 14, THE SITES AND SERVICES (AND ALL Rytina CONTENT PROVIDED THROUGH THE SITES AND SERVICES) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND Rytina AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Rytina, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 13.
1. By Rytina. Except in the case of any Services provided during a Trial Subscription, Rytina will, at its expense, defend You against any claims brought against You by a third party that Your use of the Services in accordance with this Agreement infringes any copyright, trade secret or trademark right. The foregoing obligations of Rytina under this Section 14 are conditioned upon You providing Rytina with: (a) notice of any such claim within 10 days after You receive written notice thereof; (b) sole control over the defense and settlement of such claim; and (c) reasonable assistance (at Rytina’s expense) in the defense and settlement of such claim. If You are, or Rytina reasonably believes You may be, enjoined from using the Services, Rytina, at Rytina’s option and expense, may procure the right for You to continue using the Services, replace or modify the Services so that they become non-infringing, or provide You a refund of all pre-paid amounts applicable to such Services (if any) and terminate this Agreement with respect to such Services. This Section 14.1 constitutes Rytina’s sole and exclusive liability, and Your sole and exclusive remedy, for any infringement or misappropriation of any third party IPR by or through the Site, Services, Technology, Rytina Content or any Software.
2. By You. You hereby indemnify, defend, and hold harmless Rytina and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest (“Indemnified Parties”) from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from Your accessing or using the Site, Services, Software, Your Content, Rytina Content, any email or other communication generated or sent through the Services, or any breach of this Agreement. Rytina will provide You with notice of any such claim or allegation, and Rytina will have the right to participate in the defense of any such claim at its expense.
10. Limitation on Liability. IN NO EVENT WILL Rytina BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE SITES, SERVICES (OR ANY Rytina CONTENT PROVIDED THROUGH THE SITES OR SERVICES), EVEN IF Rytina HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. Rytina’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO Rytina HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $10). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT Rytina WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, Rytina’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
13. Claims of Infringement. Just as Rytina requires users of the Site to respect the copyrights and other intellectual property rights of Rytina, its affiliates, and other third parties, Rytina respects the copyrights and other intellectual property rights of Users of the Site and other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Site without authorization in a way that constitutes copyright infringement, You may notify us via email to service@Rytina.com or via mail to Rytina LLC, 1420 East Roseville Pkwy, Ste 140-243, Roseville, CA 95661.
14. Linked Sites. The Site and communications sent through the Services may contain links to third-party sites that are not under the control of Rytina, and Rytina is not responsible for any content on any linked site. If you access a third-party site from the Site or from a communication sent through the Services, then you do so at your own risk. Rytina provides links only as a convenience, and the inclusion of the link does not imply that Rytina endorses or accepts any responsibility for the content on those third-party sites. Rytina welcomes links to the Site. You may establish a link to this Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by Rytina or any group or individual affiliated with Rytina. You may not use on your site any Content or Marks appearing on the Site in establishing the link. You may not frame or otherwise incorporate into another site the Content or other materials on the Site without prior written consent.
15. Disputes. Except as otherwise provided below, the parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”), in accordance with the procedures set forth in this Section 20. If any Dispute cannot be resolved through negotiations between the parties within 5 days of notice from one party to the other of the Dispute, such Dispute will be finally settled through binding arbitration under the arbitration of the International Chamber of Commerce (“ICC”) then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the “Initial Period”) after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Rytina in Sacramento, California. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrators will require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.
16. Governing Law. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any negotiations, arbitrations or other proceedings hereunder, will be governed in all respects exclusively by the laws of the State of California as such laws apply to contracts between California residents performed entirely within California. Each party agrees that it will only bring any action or proceeding arising from or relating to this Agreement in a federal court in the Northern District of California or in state court in Sacramento, California, and You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by Rytina.
17. General. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger or operation of law) without the prior written approval of Rytina. Any assignment in violation of the foregoing will be null and void. Rytina may assign this Agreement to any party that assumes Rytina’s obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. Rytina may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Services appearing on the Rytina web site and for other marketing and promotional purposes relating to the Services.