Terms of Service

Using Postmark Means Accepting these Terms #

These Terms of Service (the “Terms”), in conjunction with our Privacy Policy and the Data Processing Addendum incorporated herein by this reference (the “DPA”), are the entire agreement between AC PM, LLC (“AC PM”, “We”, “Us” or “Our”) and you (“You”, “Your” or the “User”). These Terms govern Your access to and use of the postmarkapp.com web site (the “Site”), the Postmark web application and/or the Postmark services (collectively, the “Service”).

By accessing or using the Service, You are acknowledging that You have read and have agreed to these Terms, so please read them carefully. We may update these Terms from time to time. Unless otherwise required by law, We will notify You of such changes by posting the updated Terms to the Site and updating the “Effective” date above. We may also notify you by sending an email notification to the address associated with Your account or providing notice through the Service. Unless We say otherwise in our notice, the updated Terms will take effect from the “Effective” date above. Once any updated Terms are in effect, You will be bound by them if You continue to access or use the Service. If You do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 20 and any updates to these Terms, You must stop accessing and using the Service.

In addition to these Terms, We may ask You to accept additional terms that apply to specific features, products or services. To the extent any additional terms conflict with these Terms, the additional terms govern with respect to Your access to or use of the applicable feature, product or service.

1) Eligibility and Authority #

You must be at least 18 years of age or older to access or use the Service. If You are accessing or using the Service on behalf of another person or entity, You represent that You are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to Us if You or the other person or entity violates these Terms.

2) Communications #

You acknowledge and agree that AC PM may send You electronic communications, which may include notices related to Your account and/or the Service. You agree that any notices, agreements, disclosures or other communications that We send to You electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.

3) Accounts, Passwords and Security #

You must be a registered user to access the Service. You must provide accurate account information to register for an account and promptly update this information if it changes. You are responsible for keeping Your password secure, and You are solely and strictly liable for any activity that occurs under Your user name. You must not share Your account and/or user credentials and You must maintain the security of Your account. You also agree not to access, or attempt to access, other user's accounts and/or data. If You discover or suspect that someone has accessed Your account without Your permission, You must promptly notify Us.

4) Privacy and DPA #

Please refer to our Privacy Policy (https://www.activecampaign.com/legal/privacy-policy) for information about how we collect, use and disclose information about you.

View the incorporated DPA. The DPA applies when Personal Information (as defined in the DPA) is processed by AC PM on behalf of User in the course of providing the Service to User under these Terms.

5) Acceptable Use Policy #

Email Service Providers (ESPs) like Postmark are unique in that we are only as good as the reputation and sending practices of our customers. A single bad actor can take down a good portion of an ESP’s reputation, but it takes everyone as a whole to create an exceptional reputation over time. So a big part of our delivery efforts is spent in the area of encouraging good email behavior on our platform, and preventing bad emailers from messing things up for everyone. To put it another way: our reputation depends on the quality of our customers.

It is with that as background that we put together this Acceptable Use Policy set out in this Section 5. To make sure that we keep our platform safe and our deliverability high, there are certain types of senders and behaviors that we don’t allow. The purpose of this Acceptable Use Policy is to make our platform’s rules as clear as possible, and to help you understand why Postmark may not be a good fit for you. When you access or use the Service, you agree to use the Service in accordance with this Acceptable Use Policy.

a) Email types that we don’t allow on Postmark #

You will not use Postmark to do or promote anything illegal. You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and You are solely responsible for Your conduct while accessing or using the Service.

Without limiting any other right or remedy of AC PM, We may not allow the following businesses or types of services to use Postmark:

Emails offering to sell illegal goods or services
Emails that violate CAN-SPAM Laws
Pornography/sexually explicit content
Escort services
Pharmaceutical products
Gambling services or products
Multi-level marketing
Affiliate marketing
Make money online opportunities
Credit repair and get out of debt opportunities
Short-term / payday loan services
List brokers or list rental services
Selling “Likes” or followers for a social media platform
Other emails that we find, in our sole discretion, hurt our reputation or our deliverability

b) Other things you can’t do on Postmark #

In addition to the content restrictions above, there are a few other things we expect from our customers once you start sending with Postmark, regardless of your industry:

Your spam complaint rate must be lower than 1 in 1,000 emails (0.1%). If You exceed this limit your account, we reserve the right to cancel Your account.
Your bounce rate has to be lower than 10% of all emails sent. If You exceed this limit, we reserve the right to cancel Your account.

You also will not:

Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Impersonate any person or entity, including without limitation, any AC PM official, employee, or falsely state or otherwise misrepresent your affiliation with such a person or entity;
Use or attempt to use another user’s account without authorization from that user and AC PM;
Access the Service by any means other than through the standard industry-accepted or AC PM-approved application program interfaces;
Use the Service in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Service or that could damage, disable, overburden or impair the functioning of the Service in any manner;
Delete or revise any material posted by another person or entity;
Delete or modify any author attributions, legal notices or proprietary designations or labels that You upload to any communication feature;
Register, subscribe, attempt to register or subscribe, unsubscribe or attempt to unsubscribe, any party for any AC PM product or Service if You are not expressly authorized by such party to do so;
Reverse engineer any aspect of the Service or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the Service;
Attempt to circumvent any content-filtering techniques We employ or attempt to access any feature or area of the Service that You are not authorized to access;
Develop or use any third-party applications that interact with the Service without Our prior written consent, including any scripts designed to scrape or extract data from the Service;
Bypass or ignore instructions contained in Our robots.txt file that controls automated access to portions of the Service;
Export or attempt to export certain data points, including but not limited to EGEO and ERJA data, that cannot be exported from the Service; or
Use the Service for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

c) Appropriate Email Practices #

All email lists contained and/or used with respect to the Service must be permission-based subscriptions. Use of a list that has been purchased or rented from a third party is prohibited.

It is Your responsibility to monitor and maintain unsubscribe requests for Your list that are outside of the functionalities of the Service. Emails sent unsolicited will receive abuse complaints that will be reflected on Your account. It is Your responsibility to maintain abuse results lower than the industry standard.

We reserve the right to suspend or terminate your account for, among any other reason in our sole discretion, violation of the provisions of this Section 5 or any applicable law, rule or regulation, or inclusion of spam or otherwise duplicative or unsolicited messages in Your Messaging Content (defined below).

d) Compliance with Laws #

You must comply with all applicable laws and regulations in Your use of the Service, including but by no means limited to complying with the CAN-SPAM Act and other laws and regulations that relate privacy and data protection and to the sending of electronic communications, and Export Control and Sanctions Laws (defined below). This includes, but is not limited to, Your obligation to provide an unsubscribe link on Your emails. You represent and warrant that you have a lawful basis for processing and sending Messaging Content (defined below) to Your customers, business contacts or other recipients of Your Messaging Content (“Contacts”). You also represent and warrant that the Messaging Content You process and send through the Service relates to the provision of goods, services, or other information that are, in each instance, provided in accordance with all applicable laws, rules, and regulations. You will not provide AC PM or upload to the Service, or take any actions with respect to, any Messaging Content or Contact Data (defined below) for which you do not have a lawful basis for processing, permissions or consents in accordance with applicable data protection laws. You (and not AC PM) are responsible for ensuring that You meet all notice and consent obligations for sending communications to individuals in the jurisdictions where they reside, and You acknowledge and agree that You (and not AC PM) have sole responsibility for maintaining all records relating to Contact Data. You are solely responsible for determining whether the Service is suitable for use in light of any laws and regulations that govern Your entity, industry, or relationship with Your own Contacts, including but not limited to consumer protection, privacy, advertising, intellectual property or other laws. You may not use the Service for any unlawful or discriminatory activities, including but not limited to acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, Food, Drug and Cosmetic Act, or other laws that apply to commerce or the provision of industry-specific services. You further represent and warrant that Your use of the Service, including the information that you upload to or make available through the Service will not cause AC PM to violate any applicable laws and regulations, including but not limited to those that relate to privacy and data protection and to the sending of electronic communications.

6) Feedback #

Any questions, comments, suggestions, ideas, original or creative materials or other information You submit about AC PM or Our products or the Service (collectively, “Feedback”), is non-confidential and will become the sole property of AC PM. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to You.

7) Publicity #

You agree that We may, but have no obligation, to identify You as a customer of AC PM and that AC PM may, in its sole discretion, refer to You by name, trade name, trademark, logo and other proprietary marks or words, and may describe Your business, in Our marketing or publicity materials, on the Site, and in press releases or other public statements. You hereby grant AC PM a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use Your name and any of Your trade names, trademarks, logos and other proprietary marks or words pursuant to this Section 7.

8) AC PM Content #

Our Service and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “AC PM Content”) are owned by or licensed to AC PM and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, AC PM and Our licensors reserve all rights in and to the Service and the AC PM Content. You acknowledge and agree that AC PM owns all right, title and interest in and to the Service, including without limitation all intellectual property rights. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Service and the AC PM Content in accordance with the Terms for (i) Your own personal use or (ii) if You are a business or organization, to communicate about your business or organization with your Contacts. However, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use the Service or AC PM Content; (b) copy, reproduce, distribute, publicly perform or publicly display AC PM Content, except as expressly permitted by Us or Our licensors; (c) modify the AC PM Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of the Service or AC PM Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use the Service or AC PM Content other than for their intended purposes. Any use of the Service or AC PM Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.

9) Third Party Content and Services #

We may display content, advertisements and promotions from third parties through the Service (“Third Party Content”). We do not control, endorse or adopt any Third Party Content, and We make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that Your interactions with third parties providing Third Party Content are solely between You and such third parties, and that AC PM has no responsibility or liability for any Third Party Content. If AC PM requires You to accept additional terms, conditions, or obligations in connection with Your use of third party services or third party integrations (“Third Party Terms”), We will provide You advanced notice and obtain Your authorization or acceptance of such Third Party Terms, which shall include Your continued use of such services or integrations.

We may also provide You with access to certain services, features or functionality offered by a third party in connection with the Service. Use of any such services, features or functionality will be subject to separate terms of service between You and such third party, and not these Terms. The third party provider, and not AC PM, will be solely responsible for providing You with such services, features or functionality.

10) Fees #

a) Plan-based billing #

At the end of each billing period the plan contract will automatically renew indefinitely until explicitly cancelled by the User. Inactivity does not constitute automatic cancellation. Cancellation must be issued via the Service. All cancellation requests will take effect at the end of then-current billing period in which the cancellation request is made, and You will be responsible for all fees and any applicable taxes and other charges rendered up through the cancellation date.

Any unused emails from the monthly email send limit included in the chosen plan expire at the end of the month, and do not roll over to subsequent periods. If You exceed the monthly email send limit in a billing period, You will incur additional charges for the billing period.

You will have the option to upgrade or downgrade Your subscription at any time, but if You elect to downgrade during a billing period, Your downgrade will not be effective until the end of the billing period, and You will still be charged for the entire billing period at the higher subscription plan (including any applicable additional charges for the higher subscription plan).

WHEN YOU SIGN UP FOR THE SERVICE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) YOU AGREE TO A RECURRING SUBSCRIPTION CONTRACT WITH AC PM, (B) AC PM (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A MONTHLY, QUARTERLY, ANNUAL, OR OTHER BASIS AS APPLICABLE FOR YOUR SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (C) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SERVICE IN ACCORDANCE WITH THESE TERMS.

b) Chargeback Policy #

AC PM has a zero tolerance policy for chargebacks. Any customer who disputes a credit card payment that is found to be valid will be permanently banned from using the Service.

c) Payment Information #

AC PM may offer use of a payment card as a convenience to its customers and use a third-party payment processor to process payment transactions. By enabling payment by payment card, You agree to be bound by the separate terms of service applicable to the third-party payment processing services. You acknowledge and agree that all information submitted in connection with Your payment card is separately collected, processed and stored by the third-party payment processor and is subject to the third-party payment processor’s privacy policy. AC PM reserves the right to change or add third-party payment processors at any time. AC PM WILL NOT BE RESPONSIBLE FOR AND WILL HAVE NO LIABILITY IN RESPECT OF ANY SERVICES PROVIDED BY THE THIRD-PARTY PAYMENT PROCESSOR.

By providing a credit card or other payment method that We accept, You represent and warrant that You are authorized to use the designated payment method. In addition, You authorize Us (or Our third party payment processor) to charge Your payment method for the total amount of Your subscription fees or one-time purchases (and applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, Your account may be suspended until Your payment is processed. You must resolve any problem We encounter in order to proceed.

You acknowledge that the amount billed may vary due to promotional offers, changes to Your subscription or changes in applicable taxes or other charges, and You authorize Us (or Our third party payment processor) to charge Your payment method for the corresponding amount.

11) DISCLAIMER OF WARRANTIES #

WE DO NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY MESSAGING CONTENT, THIRD-PARTY CONTENT OR THIRD-PARTY SERVICES MADE AVAILABLE ON OR LINKED TO BY THE SERVICE. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, AC PM DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WE DO NOT REPRESENT, WARRANT OR COMMIT TO ANY DELIVERABLES, RESULTS, OUTCOMES OR BENEFITS OF ANY KIND WITH RESPECT TO OUR PERFORMANCE OR YOUR USE OF THE SERVICE. WHILE AC PM ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SERVICE SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT THE SERVICE OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICE. AS BETWEEN YOU AND AC PM, YOU WILL BE SOLELY RESPONSIBLE FOR RESPONDING TO AND HONORING ALL REQUESTS RELATING TO THE RIGHTS OF YOUR DATA SUBJECTS AND THEIR PERSONAL INFORMATION PURSUANT TO AND IN ACCORDANCE WITH APPLICABLE DATA PROTECTION LAWS.

WITHOUT LIMITING THE FOREGOING, THE SERVICE IS NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL- SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. IF SOMEONE'S LIFE DEPENDS ON YOUR USE OF THE SERVICE, PLEASE DO NOT USE THE SERVICE.

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF PARTICULAR WARRANTIES, AND, TO THAT EXTENT, THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT YOU LIVE IN A JURISDICTION THAT REFUSES TO ENFORCE THE FOREGOING DISCLAIMERS, AC PM DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, TO THE EXTENT PERMITTED BY LAW.

12) LIMITATION OF LIABILITY #

IN NO EVENT WILL AC PM OR THE OTHER AC PM PARTIES BE LIABLE TO THE USER OR THIRD PARTIES FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF PROFITS OR LOSS, CORRUPTION AND/OR ALTERATION OF DATA) UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN AN ACTION IN CONTRACT, TORT, EQUITY, NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHERWISE, EVEN IF AC PM OR THE OTHER AC PM PARTIES HAVE BEEN ADVISED ON THE POSSIBILITY OF USE DAMAGES.

USER VOLUNTARILY ENGAGES IN THE ACTIVITY OF INTERNET USE AND BEARS THE RISKS ASSOCIATED WITH THAT ACTIVITY. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE DONE TO YOUR COMPUTER OR YOUR DATA THAT RESULTS FROM SUCH ACTIVITY. IN NO EVENT WILL AC PM HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR UNAUTHORIZED ACCESS TO OR USE, ALTERATION, CORRUPTION, THEFT OR DESTRUCTION OF YOUR DATA AND/OR YOUR ACCOUNT.

THE TOTAL LIABILITY OF AC PM AND THE OTHER AC PM PARTIES IS EXPRESSLY LIMITED FOR ANY REASON AND UPON ANY CAUSE OF ACTION TO THE AMOUNT YOU ACTUALLY PAID, IF ANY, BY YOU TO AC PM FOR THE SERVICE DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU CLAIM THE CAUSE OF ACTION ACCRUED.

SOME JURISDICTIONS' LAWS PROHIBIT THE FOREGOING LIMITATION OF LIABILITY PROVISION. TO THE EXTENT THAT YOU LIVE IN A JURISDICTION THAT REFUSES TO ENFORCE THE FOREGOING PROVISION, AC PM'S LIABILITY IS LIMITED TO THE GREATEST EXTENT ALLOWED BY THE LAW OF THAT JURISDICTION.

13) Indemnification #

To the fullest extent permitted by applicable law, You agree to indemnify, defend and hold harmless AC PM, our parent, subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “AC PM Parties”) from and against any loss, liability, claim, demand, damages, expenses, including without limitation attorneys' fees, or costs (“Claims”) arising from or related to Your Messaging Content or Contact Data, Your Feedback, Your access to or use of the Service and/or any breach of these Terms by You. You further agree to defend, indemnify and hold harmless AC PM Parties from all Claims arising from or related to any claims by third parties that Your Messaging Content or Contact Data or Your access to or use of the Service infringes upon, violates or misappropriates any of their intellectual property rights or discloses their proprietary information or any other of their rights (including without limitation privacy rights). You agree to promptly notify AC PM Parties of any third party Claims, cooperate with AC PM Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that AC PM Parties will have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and AC PM or the other AC PM Parties.

14) Release #

To the fullest extent permitted by applicable law, you release AC PM and the other AC PM Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

15) Termination of Service #

We reserve the right, without notice and in our sole discretion, to terminate Your account at any time and for any reason. In the event of termination, You will lose all data related to Your account. An account terminated by AC PM will not be backed-up for any reason and will be immediately terminated from AC PM's servers, and will not be eligible for any refunds of monies paid. AC PM is not responsible for any loss or harm related to your inability to access or use the Service.

16) Intellectual Property; License #

The Service may allow You to create, post, store and share communications or other content, including, but not limited to, email messages, photos, videos, and other materials (collectively, “Messaging Content”). As between You and AC PM, you are fully and solely responsible for the creation and substance of the Messaging Content notwithstanding any comments, suggestions, or advice We may provide. You understand and agree that the Service is “interactive computer service” as that term is used in 47 U.S.C. § 230 and that AC PM is entitled to all rights and privileges attendant thereto. Except for the license You grant below, You retain all rights in and to Your Messaging Content, as between You and AC PM. You grant AC PM a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, adapt, publish, translate, distribute, and display Your Messaging Content to the recipients or audience designated by you or otherwise in accordance with the settings you specify in the Service. As a part of the Service, We may view, copy, and internally use Messaging Content to train and improve the Service, including its functionality and effectiveness, as well as to detect issues. You may not create, post, store or share any Messaging Content that violates these Terms, or for which You do not have all the rights necessary to grant Us the license described above. When using the Service, You may import data, including personally identifiable information, regarding Your Contacts (“Contact Data”). We view and use Contact Data only to provide Service to You, at Your direction and, as part of the Service, to train, detect issues with the Service, and to ensure its proper functioning. We do not disclose Contact Data to third parties, except as follows:

We may share Contact Data with our third party service providers to provide the Service or administer the Site.
If any portion of AC PM is sold, Contact Data may be part of the business assets We transfer. Contact Data also may be disclosed if AC PM is considering or completes the financing, securitization, insuring, sale, assignment or other transfer of all or part of the company.
We may disclose Contact Data as We reasonably believe is necessary to comply with any judicial or governmental subpoenas, warrants or orders.
We reserve the right to use, disclose and share Your information and Contact Data to investigate, prevent or take action with respect to any potential or actual fraud, illegal activities, circumstances which threaten the physical safety of any person, violations of these Terms or as otherwise required by law.

17) Transfer and Processing Data #

By accessing or using the Service, You consent to the processing, transfer and storage of information about you in and to the United States and other countries, where you may not have the same rights and protections as you do under local law.

18) Export Control, Sanctions Compliance and Anti-Corruption Compliance #

a) Export Control and Sanctions Compliance #

The receipt and use of the Service may be subject to export control and economic sanctions laws of the United States and other applicable jurisdictions (“Export Control and Sanctions Laws”). You agree to abide by all Export Control and Sanctions Laws as they relate to Your access and use of the Service. You will not, directly or indirectly, access or use the Service if You are located in a jurisdiction where the provision of the Service is prohibited by law (a “Prohibited Jurisdiction”), including without limitation Cuba, Iran, North Korea, Syria, and the Crimea region. You also will not provide access to or allow the use of the Service by any government, entity or individual: (a) located in any Prohibited Jurisdiction; or (b) identified on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce’s Denied Persons List or Entity List, or subject to any other expert control or economic sanctions lists or programs. You represent and warrant that: (a) You are not named on or subject to any government sanctions programs or list of persons or entities prohibited from receiving U.S. exports, or engaging in transactions with any U.S. person; (b) You are not located in, or a company registered in, any Prohibited Jurisdiction; and (c) You will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you are located.

b) Anti-Corruption Compliance #

You will comply with all applicable United States and international anti-corruption and anti-bribery laws and regulations, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and others as they relate to your access to and use of the Service. You acknowledge that You have not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value in connection with these Terms.

19) Commercial Items #

If acquired by any agency of the U.S. Government, such agency acknowledges that (a) the the Service constitute “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable; and (b) such agency’s rights are limited to those specifically granted under these Terms.

20) Force Majeure #

Neither party shall be responsible for any failure to perform, or delay in performing any of its obligations under these Terms, where and to the extent that such a failure or delay results from causes outside the control of such party. Such causes shall include, without limitation, failures caused by a third-party service, acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion or the like.

21) Dispute Resolution: Binding Arbitration #

Please read the following section carefully because it requires You to arbitrate certain disputes and claims with AC PM and limits the manner in which You can seek relief from us.

Except for small claims disputes in which You or AC PM seek to bring an individual action in small claims court located in the county of Your billing address or disputes in which You or AC PM seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, You and AC PM waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or the Service resolved in court. Instead, all disputes arising out of or relating to these Terms or the Service will be resolved through confidential binding arbitration held in Cook County, Illinois in accordance with the Streamlined Arbitration Rules and Procedures (“Rules“) of the Judicial Arbitration and Mediation Services (“JAMS“), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that You have read and understand the rules of JAMS or waive Your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

You and AC PM agree that any dispute arising out of or related to these Terms or the Service is personal to You and AC PM and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.

You and AC PM agree that these Terms affect interstate commerce and that the enforceability of this Section 21 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and AC PM agree that for any arbitration You initiate, You will pay the filing fee and AC PM will pay the remaining JAMS fees and costs. For any arbitration initiated by AC PM, AC PM will pay all JAMS fees and costs. You and AC PM agree that the state or federal courts of the State of Illinois and the United States sitting in Cook County, Illinois have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

You agree that regardless of any statute or law to the contrary, any claim or cause of action that You may wish to assert related in any manner to the Service or these Terms must be filed within one (1) year after such claim or cause of action accrued or be forever barred, which means that You and AC PM will not have the right to assert the claim.

You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 21 by emailing us at legal@activecampaign.com. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 22.

22) Governing Law and Venue #

. These Terms and your access to and use of the Service will be governed by and construed and enforced in accordance with the laws of State of Illinois, without regard to conflict of law rules or principles (whether of Illinois or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Illinois and the United States, respectively, sitting in Cook County, Illinois; provided, however, that any disputes or proceedings arising under the DPA shall be governed by its terms, including with respect to choice of law and jurisdiction.

23) Severability #

If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.

24) Miscellaneous #

These Terms constitute the entire agreement between You and AC PM relating to Your access to and use of the Service. Any additional or different terms proposed by You in any purchase order, request for proposal or other document are hereby objected to by AC PM and shall be void. The failure of AC PM to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. These Terms may not be assigned or transferred by You except with our prior written consent. These Terms may be executed and delivered electronically and in one or more counterparts, each of which shall, when taken together, constitute a single document.

Using Postmark Means Accepting these Terms #

These Terms of Service (the “Terms”), in conjunction with our Privacy Policy and the Data Processing Addendum incorporated herein by this reference (the “DPA”), are the entire Agreement between AC PM, LLC (“AC PM” or “We”) and you (“You” or the “User”). These Terms govern Your use of the postmarkapp.com web site (the “Site”), the Postmark web application and/or the Postmark services (collectively, the “Service”).

By using the Service, You are acknowledging that You have read and have agreed to these Terms, so please read them carefully. We may need to update these Terms from time to time. Unless otherwise required by law, we will notify you before we make such changes and give you an opportunity to review them before they go into effect. Once any updated Terms are in effect, you will be bound by them if you continue to use the Service. If you do not agree to our updated Terms, you can delete your account at any time.

Communications #

You acknowledge and agree that AC PM may send You e-mails related to your account and/or the Service. Shocking, we know. You agree that AC PM, LLC can use your company name or logo in its advertising unless and until you tell us in writing not to.

Accounts, Passwords and Security #

You must be a registered User to access the Service. You are responsible for keeping Your password secure, and You are solely and strictly liable for any activity that occurs under Your user name. You also agree not to access, or attempt to access, other User's accounts and/or data — You wouldn't want anyone doing that to You, right?

Acceptable Use and Conduct #

It is with that as background that we put together this Acceptable Use Policy. To make sure that we keep our platform safe and our deliverability high, there are certain types of senders and behaviors that we don’t allow. The purpose of this document is to make our platform’s rules as clear as possible, and to help you understand why Postmark may not be a good fit for you. Hate to say it, but if we don’t think you are following the rules, we may terminate your account.

Email types that we don’t allow on Postmark #

This should go without saying, but you can’t use Postmark to do or promote anything illegal. There are other industries that aren’t illegal, but tend to generate a lot of spam complaints.

To be specific, we may not allow the following businesses or types of services to use Postmark:

Emails offering to sell illegal goods or services
Emails that violate CAN-SPAM Laws
Pornography/sexually explicit content
Escort services
Pharmaceutical products
Gambling services or products
Multi-level marketing
Affiliate marketing
Make money online opportunities
Credit repair and get out of debt opportunities
Short-term / payday loan services
List brokers or list rental services
Selling “Likes” or followers for a social media platform
Other emails that we find, in our sole discretion, hurt our reputation or our deliverability

Other things you can’t do on Postmark #

In addition to the content guidelines above, there are a few other things we expect from our customers once you start sending with Postmark, regardless of your industry:

Your spam complaint rate has to be lower than 1 in 1,000 emails (0.1%). If you exceed this limit your account might get paused while we work with you to figure out what’s going on.
Your bounce rate has to be lower than 10% of all emails sent. Anything higher than that and inbox providers will start to think that you’re sending to poorly qualified recipients.

Appropriate Email Practices #

All email lists contained and/or used with respect to the Service must be permission-based subscriptions. Use of a list that has been purchased or rented from a third party is prohibited.

We reserve the right to terminate your account for, among any other reason in our sole discretion, violation of the provisions of this section.

Federal Regulation Compliance #

You must comply with all applicable law and regulations in Your use of the Service, including but by no means limited to complying with the CAN-SPAM federal regulations. This includes, but is not limited to, Your obligation to provide an unsubscribe link on Your emails.

License #

Fees #

For customers on plan-based billing: #

If you are not satisfied with the service, AC PM will issue a refund for your first purchase within 30 days of that purchase. Subsequent purchases are not eligible for refunds. At the end of each billing period the plan contract will automatically renew indefinitely until explicitly cancelled by the User. Cancellation must be issued via the Service.

Any unused emails from the email quota included in the chose plan expire at the end of the month, and do not roll over to subsequent periods.

For customers on credit-based billing: #

If you are not satisfied with the Service, AC PM will issue a refund for any unused Postmark credits from your first purchase within 90 days of that purchase. Subsequent purchases are not eligible for refunds. Your credits to send emails will never expire. Users are able to opt-in to recurring billing at a level set by the User. At the end of the contract term, when credits run out, the contract will automatically renew indefinitely until explicitly cancelled by the User.

Cancellation must be issued via the Service. Any cancellation issued must be done three (3) days prior to the end of the contract term to allow for adequate processing time.

Chargeback/Refund Policy #

Eligible refunds will be issued to the credit card that was used to make the credit purchase, according to the refund policy described in the “Fees” section. AC PM will not issue cash refunds under any circumstances. If You have a question about charges made to Your account, please contact AC PM immediately. If the charges were made in error, AC PM will credit your account for the appropriate amount. AC PM has a zero tolerance policy for chargebacks. Any customer who disputes a credit card payment that is found to be valid will be permanently banned from using the Service.

DISCLAIMER OF WARRANTIES #

WE HAD TO MAKE THIS CONSPICUOUS BECAUSE OUR LAWYERS SAID SO. THE SERVICE IS PROVIDED “AS IS” AND YOU USE IT AT YOUR OWN RISK. AC PM EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND THE WARRANTY OF NON-INFRINGEMENT.

WE TRY TO KEEP THE SERVICE BUG-FREE AND SAFE, BUT AC PM DOES NOT WARRANT OR ENSURE CONTINUOUS, ERROR-FREE, SECURE OR VIRUS- FREE OPERATION OF THE SERVICE OR YOUR ACCOUNT. YOU UNDERSTAND AND AGREE THAT YOU SHALL NOT BE ENTITLED TO MAKE ANY CLAIM BASED ON AC PM'S FAILURE, IRRESPECTIVE OF FAULT, TO PROVIDE ANY OF THE FOREGOING. LIKE WE SAID, YOU USE THE SERVICE AT YOUR OWN RISK.

WITHOUT LIMITING THE FOREGOING, THE SERVICE IS NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL- SAFE CONTROLS, INCLUDING WITHOUT LIMITATION OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS. IF SOMEONE'S LIFE OR THE FATE OF THE FREE WORLD DEPENDS ON YOUR USE OF THE SERVICE, PLEASE DO NOT USE THE SERVICE.

LIMITATION OF LIABILITY #

IN NO EVENT WILL AC PM BE LIABLE TO THE USER OR THIRD PARTIES FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF PROFITS OR LOSS, CORRUPTION AND/OR ALTERATION OF DATA) ARISING OUT OF OR IN ANY WAY RELATED TO YOUR DATA AND/OR YOUR USE OF THE SERVICE AND/OR YOUR ACCOUNT, WHETHER IN AN ACTION IN CONTRACT, TORT, EQUITY OR OTHERWISE.

AC PM'S LIABILITY IS EXPRESSLY LIMITED FOR ANY REASON AND UPON ANY CAUSE OF ACTION TO THE AMOUNT YOU ACTUALLY PAID, IF ANY, BY YOU TO AC PM FOR THE SERVICE DURING THE THREE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU CLAIM THE CAUSE OF ACTION ACCRUED.

Indemnification #

To the fullest extent permitted by applicable law, You agree to indemnify, defend and hold harmless AC PM from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from or related to Your data, Your use of the Service and/or any breach of these Terms by You. You further agree to defend, indemnify and hold harmless AC PM from all damages, liabilities, claims and expenses, including without limitation attorneys' fees and costs, arising from or related to any claims by third parties that Your data or Your use of the Service infringes upon, violates or misappropriates any of their Intellectual Property Rights or discloses their Proprietary Information. You agree to promptly notify AC PM of any third party claims, cooperate with AC PM in defending such claims and pay all fees, costs and expenses associated with defending such claims (including, but not limited to, attorneys’ fees). You also agree that AC PM will have control of the defense or settlement of any third party claims.

Release #

To the fullest extent permitted by applicable law, you release AC PM from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

Termination of Service #

We reserve the right, without notice and in our sole discretion, to terminate Your account at any time and for any reason. Accordingly, We may, but have no obligation to, remove accounts and content containing what We determine, in our sole discretion, to be unlawful, offensive, threatening, defamatory, obscene or otherwise objectionable material. In the event of termination, You will lose all data related to Your Account. An account terminated by AC PM will not be backed-up for any reason and will be immediately terminated from AC PM's servers, and will not be eligible for any refunds of monies paid. You may terminate Your account at any time, and if eligible, AC PM will issue refunds of monies paid for unused credits according to the refund policy set aside in the “Fees” section. AC PM is not responsible for any loss or harm related to your inability to access or use the Service.

Intellectual Property #

AC PM claims no intellectual property rights over the data You provide to the Service.

You acknowledge and agree that AC PM owns all right, title and interest in and to the Service, including without limitation all intellectual property rights. You agree that You will not copy, reproduce, alter, reverse engineer, clone, or modify the Service or create derivative works from the Service.

Force Majeure #

Dispute Resolution by Arbitration #

YOU AGREE THAT THE SOLE AND EXCLUSIVE FORUM AND REMEDY FOR ANY AND ALL DISPUTES AND CLAIMS RELATING IN ANY WAY TO OR ARISING OUT OF THESE TERMS, THE SITE AND/OR THE SERVICE SHALL BE FINAL AND BINDING ARBITRATION, except that: (a) either of us may seek injunctive relief in state or federal court located in Cook County, Illinois concerning infringement, misappropriation or other violation by either of us of the other party's Intellectual Property Rights, and (b) AC PM may seek injunctive relief in state or federal court located in Cook County, Illinois concerning violation by a User of any of these Terms, and in both such cases (a) and (b), the parties acknowledge that arbitration is not an adequate remedy at law and that injunctive or other appropriate relief may be sought.

Arbitration under this Agreement shall be conducted by the American Arbitration Association (the "AAA") under its Commercial Arbitration Rules and, in the case of consumer disputes, the AAA's Supplementary Procedures for Consumer Related Disputes ( the "AAA Consumer Rules") (collectively the "AAA Rules"). The location of the arbitration shall be in Chicago, Illinois, and the allocation of costs and fees for such arbitration shall be determined in accordance with such AAA Rules and shall be subject to the limitations provided for in the AAA Consumer Rules (for consumer disputes). The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction.

To the fullest extent permitted by applicable law, YOU AND AC PM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND THAT NO ARBITRATION OR CLAIM UNDER THESE TERMS OF SERVICE SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICE. IN NO EVENT SHALL ANY CLAIM, ACTION OR PROCEEDING BY YOU RELATED IN ANY WAY TO THE SERVICE (INCLUDING YOUR USE OF THE SERVICE) BE INSTITUTED MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE.

Choice of Law #

You agree that all disputes or proceedings related in any way to or arising from Your use of the Service shall be governed, without respect to conflict of law principles, by the laws of the State of Illinois; provided, however, that any disputes or proceedings arising under the DPA shall be governed by its terms, including with respect to choice of law and jurisdiction.

Statute of Limitations #

You agree that regardless of any statute or law to the contrary, any claim or cause of action that you may wish to assert related in any manner to the Service must be filed within one (1) year after such claim or cause of action accrued or be forever barred.

Users with questions about this Agreement or the Privacy Policy may contact AC PM at privacy@activecampaign.com 1 N Dearborn Street, Suite 500, Chicago, IL 60602.

View the incorporated Data Processing Addendum (DPA) here.

Severability #

Miscellaneous #

These Terms constitute the entire agreement between you and AC PM relating to your access to and use of the Service. Any additional or different terms proposed by you in any purchase order, request for proposal or other document are hereby objected to by AC PM and shall be void. The failure of AC PM to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. These Terms may not be assigned or transferred by you except with our prior written consent. These Terms may be executed and delivered electronically and in one or more counterparts, each of which shall, when taken together, constitute a single document.