LAST UPDATED: MARCH 17, 2021.
Thank you for choosing to use our Services.
These Terms of Service govern Customer’s unpaid use of the Service and by checking the box that you “Agree,” or by otherwise accessing and using the Services, Customer represents that: (a) Customer has read, understands and agrees to be bound by these Terms of Service; (b) Customer is of legal age to form a binding contract with Litmus; and (c) Customer has the authority to enter into this agreement personally or on behalf of the company or other legal entity Customer has identified or for which Customer is using the Services, and to bind that entity to these Terms of Service.
Litmus may make changes to these Terms of Service from time to time. The most current version of these Terms of Service will be posted on the Website. Any changes to these Terms of Service will be effective immediately for any new Customer and in instances where such changes are required in order to comply with applicable law. For any other Customer, changes to these Terms of Service will be effective as of ten (10) days after posting notice of such changes via the Website. Litmus may require Customer to provide consent to the updated Terms of Service in a manner specified by Litmus before further use of the Services is permitted. Customer is responsible for regularly reviewing the Website to obtain timely notice of such amendments. If Customer does not agree to any change(s), Customer may notify Litmus in writing of any objection, and Customer’s sole remedy is to cease using the Services.
THIS AGREEMENT IS SUBJECT TO ARBITRATION PURSUANT TO SECTION 8.9 (DISPUTES; ARBITRATION) BELOW.
All capitalized terms not defined in this Section shall have the meanings set forth in the Sections of this agreement in which they are defined.
1.1. “Content” means text, images, documents, materials, photos, audio, video, and all other forms of data or communication.
1.2. “Customer” means the customer accepting these Terms of Service. If an individual signs up for, or accesses or uses the Services on behalf of a company or other legal entity, that individual represents and warrants that they have the authority to bind such entity to these Terms of Service, and the term “Customer” herein shall include both the individual User and such entity.
1.3. “Customer Content” means all Content made available or provided by or on behalf of Customer to Litmus, or generated and collected by Litmus on behalf of Customer, in connection with the provision of the Services.
1.4. “Documentation” means the documentation for the Services generally made available by Litmus from time to time to assist its customers in the use of the Services.
1.5. “Feedback” means any comments, reports or other correspondence provided by Customer, in any form or format, about any errors, problems, or defects in, or suggestions for changes or improvements to, the Website or Services.
1.6. “Litmus” means Litmus Software, Inc., a Delaware corporation, located at 675 Massachusetts Ave., 10th Floor, Cambridge, MA 02139, U.S.A.
1.7. “Litmus Content” means all Content made available by Litmus to Customer in connection with Customer’s use of the Services (excluding Customer Content).
1.8. “Party” means either Litmus or Customer, as applicable, and “Parties” collectively means Litmus and Customer.
1.9. “Services” means the proprietary email testing Software-as-a-Service (SaaS) solution made available by Litmus to Customer pursuant to these Terms of Service.
1.10. “User” means an individual eighteen years of age or older who has been supplied a unique username and password and is authorized by Customer to access and use the Services on Customer’s behalf. Unless otherwise agreed by the Parties in writing, a User shall consist of an individual who is a Customer, or an employee or individual independent contractor of Customer where such Customer is a company or other legal entity.
1.11. “Volume Limitations” means the number of email tests Customer is permitted to perform using the Services, the number of email addresses to which Customer is permitted to send, and other metrics specific to the Services, as specified by Litmus from time to time.
1.12. "Website" means https://www.putsmail.com.
2.1. Services. Litmus shall provide Customer with the Services up to the designated Volume Limitations set forth on the Website or otherwise communicated in writing (email notice shall suffice) by Litmus to Customer.
2.2. License Grant. Subject to these Terms of Service, Litmus hereby grants to Customer a non-exclusive, non-transferable license to access and use the Services solely for Customer’s internal business purposes. This license is restricted to use by Customer and its Users, and does not include the right to use the Services on behalf of any third party. Customer is responsible for procuring and maintaining the network connections, hardware, software and other ancillary services necessary for Customer to connect to and otherwise use the Services. Customer agrees that: (a) only authorized Users are permitted to use the Services; (b) Customer is responsible for the acts or omissions of its Users in connection with activities contemplated under this agreement; and (c) Customer shall protect the Services and the Documentation from unauthorized use.
2.3. Licensed Volume. Customer acknowledges that access and use of the Services is licensed to Customer for use up to the Volume Limitations specified by Litmus. If usage of the Services exceeds the Volume Limitations, Litmus has the right to suspend or terminate Customer’s access to the Services.
2.4. Changes to Services. Customer acknowledges that the Services are evolving. As a result, Litmus may in its sole discretion modify, change, improve and/or discontinue the Services, including any features, functionality or components of the Services, from time to time.
3.1. Customer Warranties. Customer represents and warrants that: (a) it possesses all rights and permissions necessary to (i) provide the Customer Content to Litmus for processing in connection with the provision of the Services, (ii) grant the licenses to Litmus, and (iii) direct Litmus to collect, generate and process Customer Content on Customer’s behalf, as set forth herein; (b) any email address Customer provides in its connection with using the Services is owned and controlled by Customer, and that Customer shall not provide any third party-owned email addresses to Litmus; and (c) it will use industry standard precautions to ensure that the Customer Content, do(es) not contain any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data.
3.2. Warranty Disclaimer. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS-IS” BASIS. LITMUS MAKES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. LITMUS DOES NOT REPRESENT THAT THE SERVICES WILL BE AVAILABLE OR ERROR-FREE, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ANY OR ALL ERRORS IN THE SERVICES WILL BE CORRECTED. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES AND THAT CUSTOMER’S PROPOSED USE OF THE SERVICES COMPLIES WITH APPLICABLE LAWS IN CUSTOMER’S JURISDICTION(S).
4. LIMITATION OF LIABILITY
4.1. LIABILITY CAP. THE ENTIRE LIABILITY OF LITMUS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO TWENTY U.S. DOLLARS ($20).
4.2. DISCLAIMER OF DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LITMUS BE LIABLE FOR ANY DAMAGES, INCLUDING ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE OF THE SERVICES AND/OR THE PERFORMANCE OF ANY OTHER OBLIGATIONS UNDER THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT, INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFITS, GOODWILL, OR BUSINESS INFORMATION AND/OR DATA, COSTS INCURRED AS A RESULT OF DECISIONS MADE IN RELIANCE OF THE SERVICES, LOSS OF USE OF THE SERVICES, BUSINESS INTERRUPTION, COST OF SUBSTITUTE SOFTWARE, SERVICES OR DATA, EVEN IF A PARTY IS AWARE OF THE POSSIBILITY OF THE OCCURRENCE OF SUCH DAMAGES. THE PROVISIONS SET FORTH HEREIN FAIRLY ALLOCATE RISKS BETWEEN THE PARTIES AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN, REGARDLESS OF THE FORM OF ACTION, AND WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SET FORTH IN THESE TERMS OF SERVICE FAILS OF ITS ESSENTIAL PURPOSE.
5. TERM; TERMINATION
5.1. Term. The application of these Terms of Service will commence upon the date Customer indicates acceptance of these Terms of Service (e.g., by checking the “Agree” box) or Customer’s use of the Website and/or Services, and will continue in effect until termination as specified herein.
5.2. Termination. Litmus may terminate this agreement or suspend Customer’s access to and use of the Services at any time, with or without cause, with or without notice, and without liability to Customer. Customer may terminate this agreement at any time by notifying Litmus at email@example.com and ceasing to use the Services. All rights and obligations of the Parties which by their nature are reasonably intended to survive such termination will survive termination.
5.3. Effect of Termination. Upon any termination, Litmus shall no longer provide the Services to Customer and Customer shall promptly cease, and cause its Users to promptly cease, use of the Services. Termination by Litmus hereunder will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of Litmus. Upon termination, Litmus will have no further obligation to store and/or make available the Customer Content and may delete the same. Litmus will have no liability to Customer related to suspension or termination of this agreement.
6. OWNERSHIP; USE OF CONTENT; OBLIGATIONS; RESTRICTED USE
6.1. Services. Customer acknowledges and agrees that, as between Litmus and Customer, all right, title and interest in and to the Website and Services (excluding any Customer Content) and including all modifications, enhancements and configurations, all Litmus Content and all proprietary technology of Litmus, including, without limitation, all software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information made available to Customer by Litmus in providing the Services and all derivatives thereof are and shall remain with Litmus or its licensors. Litmus shall have the right to collect, use and distribute aggregated information, analysis, statistics, related benchmarking algorithms and other data generated by the Services (or derived from Customer’s use of the Services); provided, however, that Litmus shall not disclose any such data to a third party (excluding third party service providers engaged by Litmus to process such data in connection with the provision of services by such service provider to Litmus) unless such data is in an aggregated form that would not permit such third party to identify the data as associated with Customer, its Users or email recipients. The Litmus name, all Litmus logos, and the product names associated with the Services are trademarks of Litmus or third parties, and no right or license is granted to use them. Customer shall not remove any Litmus trademark or logo from the Services or Documentation. During the term of this agreement, Litmus grants to Customer a limited, worldwide, non-exclusive, non-transferable, royalty-free right to use, display, transmit, and distribute the Litmus Content solely in connection with Customer’s permitted use of the Services. If Customer provides Litmus with Feedback, Customer hereby grants to Litmus an irrevocable, fully-paid up, non-exclusive, royalty-free, perpetual and worldwide license to use, reproduce, reformat, modify, create derivative works of, excerpt, translate, publish, display, transmit, perform, and distribute such Feedback in any medium or format, whether now known or later developed.
6.2. Customer Content. Customer retains ownership of all right, title and interest in and to all Customer Content. Customer is solely responsible for all Customer Content, including the accuracy, quality, appropriateness and legality thereof. Customer shall provide all notices to, and obtain any consents from, any data subject as required by any applicable law, rule or regulation in connection with the processing of any Customer Content that constitutes personally identifiable information of such data subjects via the Services by Customer or Litmus. During the Term, Customer hereby grants to Litmus a limited, worldwide, non-exclusive, non-transferable (except as set forth in Section 8.2 (Assignment)), royalty-free right to use, reproduce, reformat, modify, create derivative works of, excerpt, translate, publish, display, transmit, perform and distribute the Customer Content solely as necessary to provide the Services to Customer.
6.3. Customer Obligations & Restricted Use. Customer is responsible for all acts and omissions of its Users. Unauthorized use, resale or commercial exploitation of the Services in any way is expressly prohibited. Customer and its Users shall not (and shall not allow any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code form or structure of the Services or access the Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Services; (b) except as expressly permitted in these Terms of Service, copy, license, sell, transfer, make available, lease, time-share, distribute, or assign this license to the Services to or for the benefit of any third party (including in any service bureau arrangement or otherwise); (c) use the Services to send, upload or otherwise transmit any Customer Content that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (d) upload to or otherwise transmit, display or distribute via the Services any Customer Content that infringes any intellectual property or other rights of any person; (e) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware or telecommunications equipment; (f) interfere with or disrupt the Services or networks connected to the Services; (g) access or use the Services in a way intended to avoid incurring fees or exceeding applicable Volume Limitations; (h) attempt to breach any security or authentication measures implemented by Litmus, whether by passive or intrusive techniques; or (i) violate any applicable law or regulation (including, without limitation, the CAN-SPAM Act of 2003 and any rules adopted under such act).
Customer will defend Litmus, its affiliates, and their officers, directors, employees and agents (collectively, the "Litmus Indemnitees") against any claim, demand, suit or proceeding made or brought against any or all of the Litmus Indemnitees by a third party: (a) alleging that the Customer Content, or any use thereof, infringes the intellectual property rights or proprietary rights of others, or has caused harm to a third party; or (b) arising out of Customer’s breach of these Terms of Service (a "Claim Against Litmus"), and will indemnify the Litmus Indemnitees from any damages, reasonable attorney fees and costs incurred by Litmus Indemnitees as a result of, or for any amounts paid under a settlement of, a Claim Against Litmus.
8.1. Entire Agreement. These Terms of Service, the Documentation and any policies made available on the Website contain the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, covenants, and any other communications (whether written or oral) between the Parties relating thereto and is binding upon the Parties and their permitted successors and assigns. These Terms of Service apply to this Service only, and does not apply to any paid Litmus offering. Paid subscriptions to Litmus products or services are subject to a separate written agreement. Only a written instrument that refers to these Terms of Service and that is duly signed by each Party’s authorized representatives may amend these Terms of Service. Customer’s use of the Services is not contingent on delivery of any future functionality or features. These Terms of Service apply to these Services only, and do not apply to any paid Litmus offering. Paid subscriptions to any Litmus services are governed by separate terms. These Terms of Service shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or inference against the Party drafting these Terms of Service in construing or interpreting the provisions hereof.
8.2. Assignment. Customer may not assign these Terms of Service without the prior written consent of Litmus. Any non-permitted assignment is void. This agreement will bind and inure to the benefit of Customer’s permitted successors and assigns. Litmus may use subcontractors or other third party service providers to assist in the delivery of Services.
8.3. Waiver and Severability. Performance of any obligation required by a Party hereunder may be waived only by a written waiver signed by an authorized representative of the other Party, which waiver shall be effective only with respect to the specific obligation described therein. The failure of either Party to exercise any of its rights hereunder will not be deemed a waiver or forfeiture of such rights. The invalidity or unenforceability of one or more provisions of these Terms of Service will not affect the validity or enforceability of any of the other provisions hereof, and these Terms of Service will be construed in all respects as if such invalid or unenforceable provision(s) were omitted.
8.4. Relationship of the Parties. Litmus and Customer are independent contractors, and nothing herein shall be construed as making them partners or creating the relationships of employer and employee, master and servant, or principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
8.5. No Third Party Beneficiaries. Nothing contained in these Terms of Service is intended or shall be construed to confer upon any person any rights, benefits or remedies of any kind or character whatsoever, or to create any obligation of a Party to any such person.
8.6. Force Majeure. Litmus is not liable for any delay or failure to perform any obligation under these Terms of Service due to events beyond its reasonable control, such as strike, war, acts of terrorism, natural disaster, governmental acts or orders or restrictions, or failure of suppliers.
8.7. Notices. Notice to Customer shall be deemed given upon email to Customer’s designated email address. Litmus may also provide notices to Customer electronically, including but not limited to through the Website or Services, which shall be deemed given to Customer upon posting, even if the last email address provided by Customer is invalid or the notice is not capable of delivery to Customer for any reason. Customer may update its contact information via its account settings or by providing notice to Litmus via this Section. Customer is responsible for providing Litmus with its most current contact information and for updating such information. Customer may give Litmus written notice at: Litmus Software, Inc., 675 Massachusetts Ave., 10th Floor, Cambridge, MA 02139, USA, Attn: CFO, with copy to Attn: General Counsel, which notice to Litmus shall be deemed given: (a) on the delivery date if delivered personally; (b) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt; or (c) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available.
8.8 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA without regard to its conflict of law provisions. Except as otherwise permitted below in Section 8.9 (Dispute; Arbitration), for all purposes of this Agreement, the Parties consent to exclusive jurisdiction and venue in the federal and state courts sitting in Boston, Massachusetts.
8.9. DISPUTES; ARBITRATION. ANY DISPUTES BETWEEN THE PARTIES ARISING OUT OF THIS AGREEMENT SHALL BE RESOLVED AS FOLLOWS: MEMBERS OF THE SENIOR MANAGEMENT OF BOTH PARTIES SHALL MEET AND CONFER IN GOOD FAITH TO ATTEMPT TO RESOLVE SUCH DISPUTES. IF A DISPUTE CANNOT BE RESOLVED WITHIN FIFTEEN (15) DAYS, EITHER PARTY MAY MAKE A WRITTEN DEMAND FOR BINDING ARBITRATION IN THE VENUE SPECIFIED IN SECTION 8.8 (GOVERNING LAW; VENUE), USING THE ENGLISH LANGUAGE IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC. (“JAMS”) THEN IN EFFECT, BY ONE (1) COMMERCIAL ARBITRATOR WITH SUBSTANTIAL EXPERIENCE IN RESOLVING INTELLECTUAL PROPERTY AND COMMERCIAL CONTRACT DISPUTES, WHO SHALL BE SELECTED FROM THE APPROPRIATE LIST OF JAMS ARBITRATORS IN ACCORDANCE WITH THE STREAMLINED ARBITRATION RULES AND PROCEDURES OF JAMS. JUDGMENT UPON THE AWARD SO RENDERED MAY BE ENTERED IN ANY COURT HAVING JURISDICTION, OR APPLICATION MAY BE MADE TO SUCH COURT FOR JUDICIAL ACCEPTANCE OF ANY AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. NOTWITHSTANDING THE FOREGOING, EACH PARTY SHALL HAVE THE RIGHT TO INSTITUTE AN ACTION IN ANY COURT OF PROPER JURISDICTION FOR INJUNCTIVE OR OTHER EQUITABLE RELIEF PENDING A FINAL DECISION BY THE ARBITRATOR.
8.10. Publicity. Customer hereby grants Litmus a non-exclusive license solely during the term of this agreement to list Customer’s name and display Customer’s logo in the customer section of the Litmus website and to use Customer’s name and logo in the customer lists of Litmus, but only to the extent that other customers of Litmus are also listed on such list. Any other use by Litmus of Customer’s name, logos or trademarks requires Customer’s prior written consent.
8.11. California Consumer Privacy Act. To the extent the California Consumer Privacy Act of 2018, as amended (the “CCPA”), is applicable to the Services that Litmus provides to Customer, this provision shall apply. Litmus does not receive any Personal Information from Customer as consideration for Customer’s access to and use of the Services. Litmus shall not: (a) have, derive, or exercise any rights or benefits regarding Customer’s Personal Information; (b) Sell Customer’s Personal Information; or (c) collect, retain, share or use the Personal Information Customer provides to Litmus, except as necessary for the specific business purpose of performing the Services pursuant to the Agreement or otherwise as permitted by the CCPA. Litmus shall refrain from taking any action that would cause transfer of Customer’s Personal Information to or from Litmus that would qualify as a Sale of Personal Information under the CCPA. For the purposes of this Section, Litmus is a Service Provider and the terms “Personal Information,” “Sell,” “Sale,” and “Service Provider” shall have the same meaning as set forth in the CCPA.
8.12. Headings. Section headings are for ease of reference only and shall not affect the interpretation or construction of these Terms of Service.
8.13. Contact. If Customer has any questions or complaints with respect to the Services, Customer may contact Litmus by mail at Litmus Software, Inc., 675 Massachusetts Ave, Suite 10, Cambridge, MA 02139, U.S.A., email at firstname.lastname@example.org, or by phone at +1 (866) 787-7030, 9:00 AM – 6:00 PM EST, Monday through Friday (excluding Litmus holidays).