Terms of Service
Last revised on November 07, 2022, effective as of December 07, 2022.
Please read these terms and conditions (“Agreement”) carefully. By signing up for an account with Peaberry Software Inc. (“Customer.io”) or using the Customer.io website (the “Site”), Customer.io’s automated messaging and analytics technology (including any data or content available through such technology), and other services (collectively with the Site, “Services”), you agree to the terms and conditions of this Agreement.
1. Access to Services
Subject to the terms and conditions of this Agreement, Customer.io will provide the Services, solely for you and your authorized employee and independent contractor end users (“Authorized Users”). Services may include the offering of any materials displayed or performed on the Services and related features (including text, data, software, graphics, photographs, images, illustrations, audio clips and video clips). Additional professional services may be provided upon mutual agreement and are subject to additional terms. Customer.io may change, suspend or discontinue the Services for any reason, at any time, including the availability of any feature or content. Customer.io may also restrict your access to parts or all of the Services without notice or liability.
You represent and warrant to Customer.io that if you are an individual (i.e., not a corporation) you are at least 18 years of age. If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity to this Agreement, in which case the terms “you” or “your” will refer to such entity. You also represent and warrant that you are legally permitted to use the Services. This Agreement is void where prohibited by law, and the right to use the Services is revoked in such jurisdictions.
Customer.io will use commercially reasonable efforts to ensure that the Services are available twenty-four hours a day, seven days a week. However, there will be occasions when the Services will be interrupted for maintenance, upgrades, and emergency repairs, or due to failure of telecommunications links and equipment. Customer.io will take reasonable steps to minimize such disruption where it is within Customer.io’s reasonable control. Customer.io will not be liable in any event to you or any other party for any suspension, modification, discontinuance, or lack of availability of the Services, your Data (defined below), or other content.
2. Intellectual Property Rights
As between Customer.io and you, Customer.io (or its licensors) is the sole and exclusive owner and will retain all right, title and interest in and to the Services. You will not copy or store any portion of the Services other than for your personal, noncommercial use, without prior written permission from Customer.io, or from the applicable copyright holder. All trademarks, service marks, and trade names that appear on the Services are proprietary to Customer.io or third parties. You will abide by all copyright notices and restrictions contained in the Services. Subject to the terms and conditions of this Agreement, Customer.io grants you and your Authorized Users a nonexclusive, nontransferable right (without right to sublicense) to access and use the Services, solely for your and your Authorized Users’ internal business purposes. Except as provided in this Section, you may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, distribute, perform, display, or in any way exploit, any of the Services in whole or in part. Additionally, you will not attempt to circumvent any of Customer.io’s technical measures, or decompile, reverse engineer, or disassemble the Services.
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Customer.io has a policy of terminating, in appropriate circumstances and in its sole discretion, users who are deemed to be repeat infringers. Customer.io may also terminate the accounts of any users who infringe any intellectual property rights of others.
If you think anyone has posted material to the Services that violates any copyrights or other intellectual property right, then you can notify Customer.io at firstname.lastname@example.org or via mail at Peaberry Software Inc., Attn: Legal, 9450 SW Gemini Dr., Suite 43920, Beaverton, Oregon 97008-7105. Upon receipt of such complaint, we may take whatever action, in our sole discretion, we deem appropriate, in accordance with applicable law (including with the safe harbor provisions of the DMCA).
Please see 17 U.S.C. §512(c)(3) for notification requirements under the DMCA. Customer.io may give notice of a claim of copyright infringement to users by means of a general notice on the Services, electronic mail or by written communication.
4. Customer Data
For any data (e.g., text, sound, video, or image files) you provide to Customer.io, including data regarding your end users or e-mail campaigns, in connection with your use of the Services (“Data”), you grant Customer.io a non-exclusive, worldwide, royalty-free, transferable license to use, modify, reproduce, and display such Data (including all related intellectual property rights) to provide and improve the Services. You represent and warrant that you: (i) possess sufficient rights in and to the Data as may be necessary to permit the use contemplated under this Agreement; and (ii) you will not contribute any Data that: (a) infringes any intellectual property right, proprietary right, or the privacy or publicity rights of another; (b) is libelous, defamatory, obscene, pornographic, harassing, hateful, offensive or otherwise violates any law or right of any third party; (c) contains a virus, trojan horse, worm, or other computer programming routine or engine intended to detrimentally interfere with the Services or any system, data or information; or (d) causes damage to the systems of Customer.io or its users in any way.
You bear all responsibility and liability for the accuracy, completeness, quality, integrity, legality, reliability, appropriateness, and right in the Data and Customer.io’s access, possession and use of the Data as permitted herein. Customer.io does not assume liability for any Data.
Customer.io reserves the right to remove any Data from the Services at any time, for any reason or for no reason at all, though Customer.io will make commercially reasonable efforts to alert you of such actions as soon as practicable. Customer.io may, but is not obligated to, monitor Data and remove any such Data or prohibit any use of the Services, including by refusing to send e-mail to your end users, if Customer.io believes in its sole discretion such Data or use may be (or is alleged to be) in violation of this Agreement or any applicable laws or may impact delivery.
5. Site Submissions; Feedback
Where Customer.io has specifically invited or requested submissions or comments (e.g. comments to blog posts, participation in communities, tips, etc.) through the Site, Customer.io encourages you to submit such content for consideration (“User Submissions”). User Submissions remain the property of the submitting party. By posting content on the Site, you grant Customer.io a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up worldwide, fully sub-licensable right to use, reproduce, modify, adapt publish, translate, create derivative works from, distribute, perform, and display such content and your name, voice, and/or likeness as contained in your User Submission, in any form throughout the world in any media or technology, and including the right to sublicense such rights. Any such User Submissions are deemed non-confidential.
Any feedback relating to the Services (“Feedback”) that you provide Customer.io, you give Customer.io, without charge, royalties, or other obligation to you, the right to make, have made, create derivative works, use, share, and commercialize your Feedback in any way and for any purpose. Customer.io will not be required to treat any Feedback as confidential, and will not be liable for any ideas or incur any liability as a result of any similarities that may appear in future Services.
Customer.io’s communications to you and the Services may contain Customer.io confidential information. Such confidential information may include business, technical, financial or other information that is marked confidential or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed. For clarity, all Data will be deemed confidential information without any marking or further designation. If you receive any such confidential information, then you will not disclose it to any third party without Customer.io’s prior written consent and will not use such confidential information for any purpose other than fulfilling your obligations and exercising your rights under this Agreement. Customer.io confidential information does not include information that you independently developed, was rightfully given to you by a third party without confidentiality obligation, or that becomes public through no fault of your own. You may disclose Customer.io confidential information when compelled to do so by law if you provide reasonable prior notice to Customer.io, unless a court orders that Customer.io should not receive notice. Customer.io may disclose Data at the request of any state, federal or other governmental agency or in response to any judicial process (including, without limitation, a subpoena). Unless otherwise required by applicable law, within 60 days of the termination of this Agreement for any reason, you must: (i) cease the use of all confidential information; (ii) delete, and upon request certify that you have deleted, all documents and other materials in your possession or control containing, recording, or constituting confidential information.
7. Commercial Terms
Fees for the Services are posted on the Services or in a service order (“Service Order”) (“Fees”). You will pay the Fees for the initial term upon starting your subscription. Following your first payment, Fees are due, as follows: (i) for monthly subscriptions, each month on the same (or closest) date as the day you made your first payment; (ii) for annual subscriptions, each year on the same (or closest) date as the day you made your first payment; or (iii) as otherwise mutually agreed. If your usage exceeds your sending limit, you’ll have to pay at the higher level for that Subscription Term (defined below), as indicated on the Services or in a Service Order. Customer.io reserves the right to change Fees at any time by posting an update to the Services or otherwise providing reasonable notice to you. You are responsible for payment of all applicable Fees. You agree to provide valid and accurate credit card information and payment details and authorize Customer.io to deduct the Fees against the payment instrument provided. If you are using a credit card, you represent and warrant you are authorized to use that credit card, and that any and all charges may be billed to that credit card and won’t be rejected.
If you are using the paid portion of the Services, you will pay or reimburse Customer.io for all sales, use, excise, and all other taxes and all duties, related to Customer.io’s performance under this Agreement excluding, however, taxes measured by Customer.io’s profits, overall sales, employment, and property or other taxes measured in whole or in part by the value of Customer.io’s assets. You will not be liable for any taxes that Customer.io fails to invoice.
Customer.io will provide you with reasonable customer support and maintenance for the paid portion of the Services via e-mail. Customer.io does not guarantee that the support will be available at a certain time or that Customer.io will respond within a certain time or resolve all problems in connection therewith.
If you register for a free trial, we will make the applicable Services available to you on a trial basis free of charge until the earlier of: (a) the end of the free trial period (if not terminated earlier), or (b) the start date of your paid subscription. Unless you purchase a subscription to the applicable Services before the end of the free trial, all of your Data in the Services may be permanently deleted at the end of the trial, and will not be recoverable. If we include additional terms and conditions for a trial, those will apply and will govern over these terms in the event of conflict.
You are responsible for all of your activity in connection with the Services. You may not post or transmit, or cause to be posted or transmitted, any communication designed or intended to obtain password, account, or private information from any Customer.io user. Customer.io will not be liable for any failures in the Services or other problems which are related to your Data or any equipment or service outside of Customer.io’s facilities or control. You will not use any part of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity. You will not run Maillist, Listserv, any form of auto-responder, or spam on or through the Services. You will use the Services only in compliance with all applicable laws (including policies and laws related to spamming, privacy, intellectual property, consumer and child protection, obscenity, or defamation). You’re responsible for determining whether the Services are suitable for you to use in light of any regulations like HIPAA, data protection laws, or other laws. You represent, warrant, and covenant that your use of the Services will at all times comply with Customer.io’s Anti-Spam Policy, as may be amended by Customer.io from time to time, and you will not access or use third party mailing lists in connection with preparing or distributing e-mail through the Services.
To the extent you offer products or services that in any way involve or relate to cannabis (including cultivating, manufacturing, packaging, labeling, testing, marketing, or selling cannabis or cannabis-infused or derived products), you represent and warrant as follows with respect to such offerings: (i) you are compliant under all applicable federal (except to the extent that such federal laws conflict with state, tribal, or local cannabis laws), state, tribal, local, or foreign law, including obtaining all licenses, permits, authorizations, and approval required to conduct such business in your jurisdiction; (ii) you do not market, promote or advertise such offerings in any way which targets persons under the age of 21; and (iii) you do not make any claims that the use of offerings has curative or therapeutic effects or any other health claims.
Customer.io has no special relationship with or fiduciary duty to you. You acknowledge that Customer.io has no control over, and no duty to take any action regarding: which end users gain access to the Services; what results you may obtain via the Services; what effects the Services may have on you; how you may interpret or use such results; or what actions you may take as a result of having been exposed to the Services. You release Customer.io from all liability for your having acquired or not acquired Services and content and results through the Services. Customer.io does not manage or control any business or individual that you may interact with through the Services, and Customer.io accepts no responsibility or liability for any act or omission by such entity.
The Services may contain, or direct you to third-party sites on the Internet. Third-party sites or services are not within the supervision or control of Customer.io. Third-party providers of ancillary services may require your agreement to additional or different terms prior to your use or access of their site or services. Any such agreement will in no way modify this Agreement. CUSTOMER.IO MAKES NO REPRESENTATIONS AND DISCLAIMS ALL WARRANTIES CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES.
TO THE FULLEST EXTENT ALLOWED BY LAW, CUSTOMER.IO WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, RELIABILITY, AVAILABILITY, COMPLETENESS, COPYRIGHT COMPLIANCE, LEGALITY, OPERABILITIY OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. CUSTOMER.IO DISCLAIMS ALL SUCH WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
BY USING THE SERVICES, YOU ACKNOWLEDGE THAT CUSTOMER.IO IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM RESULTING FROM: (i) USE OF THE SERVICES; (ii) DOWNLOADING INFORMATION CONTAINED ON THE SERVICES; (iii) UNAUTHORIZED DISCLOSURE OF IMAGES, INFORMATION OR DATA THROUGH THE SERVICES; AND (iv) THE INABILITY TO ACCESS OR RETRIEVE ANY DATA FROM THE SERVICES, INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES OR ANY SIMILAR DESTRUCTIVE PROGRAM.
10. Registration and Security
As a condition of using the Services, you and your Authorized Users may be required to supply Customer.io with certain registration information. You will provide Customer.io with accurate, complete, and updated registration information. Neither you nor your Authorized Users may share your password or login credentials with anyone. You are responsible for maintaining the confidentiality of such credentials.
Your Authorized Users must create their own respective account, subject to any applicable seat limits and such users’ compliance with this Agreement. Both you and the Authorized User are responsible for all activity under such accounts. You will immediately notify us of any suspected, unauthorized use of your or an Authorized User’s account or any other breach of security you become aware of. Customer.io has the right to refuse registration of and suspend or terminate any Authorized User in its discretion. Customer.io may further suspend access to the Services in the event Customer.io reasonably believes such action is necessary to protect the security or integrity of the Services or any data thereon. Customer.io will provide advanced written notice of such suspension, if reasonably practicable.
You will indemnify and hold Customer.io, its directors, officers, employees, agents, and representatives harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of: (i) your access or use of the Services, (ii) your violation of this Agreement, (iii) your infringement, or the infringement by any third party using your registration information, of any intellectual property, or other right of any person or entity, and (iv) the Data or any other materials provided to Customer.io.
12. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR DAMAGES AND LIABILITIES ARISING FROM: (i) A PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY); (ii) ITS VIOLATION OF APPLICABLE LAWS; (iii) ITS INDEMNIFICATION OBLIGATIONS; OR (iv) GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, MEMBERS, AGENTS AND REPRESENTATIVES BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, OR OTHER INTANGIBLES, OR IN THE CASE OF CUSTOMER.IO, DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF THE SERVICES, ERRORS OR OMISSIONS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER.IO’S LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE GREATER OF: (A) THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE; OR (B) $100.00 US DOLLARS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
This Agreement begins on the date you first use the Services and continues as long as you access them. If you purchase a subscription, your subscription will automatically renew at the subscription period frequency referenced on the Services (or if not designated, then monthly), or as otherwise set forth in an applicable Service Order (“Subscription Term”). Unless Customer.io provides notice otherwise, the Fees for your subscribed Services will increase by 5% annually. You may terminate your use of the Services, any Service Order and this Agreement at any time by closing your account; please note that you will remain liable for all Fees for the remainder of the then-current Subscription Term. Customer.io may also terminate or suspend any and all Services immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Any Fees paid hereunder are non-refundable, unless otherwise required by law. Upon any termination, your right to use the Services and access Data through the Services will immediately cease. All provisions of this Agreement which by their nature should survive termination will survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnification obligations, and limitations of liability. In the event this Agreement terminates or expires before the termination or expiration of a Service Order, this Agreement will govern such Service Order, until the Service Order terminates or expires.
This Agreement will be governed by and construed in accordance with the laws of the State of Oregon, excluding its conflicts of law rules, and the United States of America. Any dispute arising from or relating to the subject matter of this Agreement will be finally settled by the state and federal courts located in Multnomah County, Oregon. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this section.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable, or sublicensable by you except with Customer.io’s prior written consent. Customer.io may transfer, assign or delegate this Agreement and any or all of its rights and obligations without consent.
Customer.io may request and with your consent, Customer.io may publicly disclose in writing that you purchased Services and may use your trademarks, service marks or trade name solely in connection with such disclosures.
Any notice that is required or permitted by this Agreement will be in writing and will be deemed effective upon receipt, when sent by confirmed e-mail, if to you, at the email address you provide with your account, and if to Customer.io, to legal@Customer.io or when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to:
Peaberry Software Inc., Attn: Legal, 9450 SW Gemini Dr., Suite 43920, Beaverton, Oregon 97008-7105.