Last Updated: January 8, 2019
These Terms of Service (“Terms”) contain legally binding terms and conditions for your access and use of the hosted applications and services (“Services”) provided by Return Path, Inc. (“Return Path”) and licensed to you by salesforce.com, inc. (“Salesforce”) under a separate agreement (“Salesforce Agreement”). READ THESE TERMS CAREFULLY. THEY FORM A LEGALLY BINDING CONTRACT BETWEEN YOU AND RETURN PATH.
If you are licensing Services on behalf of an organization, “you” herein refers to that organization.
Acceptance
By licensing the Services from Salesforce or accessing or using the Services, you (i) acknowledge that you have read and understand these Terms; (ii) represent that you have the legal authority to accept these Terms; and (iii) agree to be legally bound by these Terms.
Provision of Services
Return Path will provide Services in accordance with these Terms. Return Path will be responsible for the performance of its personnel and their compliance with these Terms in the provision of Services.
Information Security; Privacy; Data Processing Addendum
In providing the Services, Return Path will implement and maintain an information security program that contains administrative, technical, and physical safeguards (“Safeguards”) to protect the confidentiality, security and integrity of your information (“Information Security Program”). The Information Security Program will meet relevant industry practices for such Safeguards, and will comply with applicable laws governing the security and handling of your confidential information. Without limitation, the Information Security Program will include: (i) adequate physical security of all premises in which your Confidential Information will be processed and/or stored; (ii) reasonable precautions taken with respect to the employment of and access given to Return Path personnel, including background checks, training, disciplinary measures, and security clearances that assign specific access privileges to individuals; and (iii) an appropriate network security program which includes (a) appropriate access controls and data integrity controls, (b) monitoring, testing and auditing of all controls and (c) appropriate corrective action and incident response plans. To the extent that Return Path processes any personal data subject to the Applicable Data Protection Law (as defined in the DPA) contained in your information or collected by Return Path on your behalf during the performance of the Services, the terms of the data processing addendum at https://returnpath.com/rpasset/dpa-resale-client (“DPA”), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms.
Permitted Use of Services; Restrictions
You agree to access and use the Services solely for your own internal business use and for no other purpose whatsoever. You acknowledge and agree that the Services are provided under license, and not sold, to you. You do not acquire any ownership interest any other rights in or to the Services other than to use the Services as set forth herein.
You agree that you will not: (i) use the Services for the benefit of any third party or otherwise commercially exploit or make available to any third party the Services or any part thereof in any way; (ii) transfer, sublicense, lease, lend, rent, copy, modify or distribute the Services for any purpose; (iii) reverse-engineer, decompile or create derivative works of the Services or any of Return Path’s techniques, processes, methods, know-how or other technology; (iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Services; (v) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Terms; (vi) infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party in connection with your access or use of the Services; (vii) use the Services to send, store or transmit or upload as part of the Services any virus, worm, trojan horse or other harmful code or use or misappropriate the data in the Services for your own (or a third party’s) commercial gain; (viii) remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Services or attempt to gain unauthorized access to Return Path’s systems or networks; (ix) interfere with or disrupt the integrity or performance of (x) access the Services for the purpose of building a similar or competitive product or service; or (xi) use the Services on behalf of more than one client or other third party per license purchased, or (xii) aid or permit others to do any of the foregoing (i)-(xii).
Your Responsibilities
You will (i) be responsible for all use of the Services under your account; (ii) be responsible for the accuracy, quality and legality of information and/or data you provide to Return Path in connection with the Services (“Your Data”); (iii) use commercially reasonable efforts to prevent unauthorized access to or use of Services; and (iv) use the Services only in accordance with the these Terms and any other applicable documentation, agreements and/or laws and regulations.
Proprietary Rights
Return Path, its licensors and service providers own all right, title and interest in and to the Services, including all related intellectual property rights. No rights in or to the Services are granted to you except as expressly set forth in your Salesforce Agreement.
You grant Return Path a limited, non-exclusive, royalty-free right to use Your Data as may be necessary to provide Services to you in accordance with these Terms.
You grant to Return Path and its affiliates a worldwide, perpetual, irrevocable, royalty-free right to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback you provide relating to the Services without any compensation or other obligation to you.
Return Path may monitor your use of the Services and use data related to such use in an aggregate and anonymous manner (“Aggregate Data”). You agree that Return Path may make Aggregate Data available publicly or as part of the Services, provided that such Aggregate Data does not incorporate Your Data or identify you. Return Path retains all intellectual property rights in Aggregate Data.
Confidential Information
“Confidential Information” means all information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limitation, the parties agree that (i) data and information provided directly by you is your Confidential Information; (ii) Return Path’s Confidential Information includes the Services; and (iii) Confidential Information of each party includes, to the extent applicable, marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
Protection of Confidential Information. The Receiving Party will: (i) protect the Disclosing Party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information, but at a minimum, reasonable care; and (ii) limit access to Confidential Information of the Disclosing Party to its and its Affiliates’ employees and contractors who need access for purposes consistent with these Terms and who have agreed in writing to keep it confidential.
Required Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information when and to the extent required by law, regulation or court order, but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the Disclosing Party; and (b) gives the Disclosing Party an opportunity to challenge the disclosure.
Equitable Relief. The parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief without the necessity of showing actual damages.
Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OR YOUR SALESFORCE AGREEMENT, THE SERVICES ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, RETURN PATH, ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, RETURN PATH PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
LIMITATION OF LIABILITY
IN NO EVENT WILL RETURN PATH BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, DATA LOSS, INTERRUPTION OF BUSINESS, LOST BUSINESS OR LOST PROFITS) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SERVICES OR THESE TERMS. IN NO EVENT WILL THE MAXIMUM AGGREGATE LIABILITY OF RETURN PATH ARISING OUT OF RELATING TO THESE TERMS OR THE PROVISION OF SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR THE SERVICES DURING THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.
Suspension and Termination for Cause
Return Path reserves the right to suspend your access and use of the Services if you are in violation of any obligation under these Terms until such time as the violation is corrected, as determined by Return Path in its reasonable discretion. If you are in material violation of the terms and do not cure such material violation within 30 days of notification by Return Path or Salesforce, Return Path will have the right terminate your access to the services.
Suspension or termination under this section will be without any refund, payment or other obligation to you.
Term
These Terms are effective upon acceptance as set forth above and terminate upon the termination of your access or license to the Services, whichever occurs first. All provisions of these Terms which by their nature should survive termination will survive termination, including, without limitation, intellectual property provisions, warranty disclaimers and limitations of liability.
Salesforce Agreement
These Terms do not modify or otherwise affect the terms contained in your Salesforce Agreement, which remain in full force and effect. In the event of a conflict between these Terms and the terms of your Salesforce Agreement, the terms contained in the Salesforce Agreement will prevail unless the Salesforce Agreement expressly says otherwise.
General
You may not assign or otherwise transfer any or all of your rights or obligations under these Terms without Return Path’s prior written consent. If any provision of these Terms is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original intent and all other provisions will continue in full force and effect. Any dispute between you and Return Path regarding these Terms will be governed by the laws of the State of New York, without giving effect to any conflict-of-laws principles. For all purposes of these Terms, you consent to exclusive jurisdiction and venue in the federal courts or state courts located in New York County, New York. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. These Terms constitute the entire agreement between you and Return Path regarding your access and use of the Services and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Services. Return Path may change or modify these Terms from time to time in its reasonable discretion. If Return Path makes material changes to these Terms, it will provide advance or contemporaneous notice of such changes, either on its own or through Salesforce. Your continued use of the Services following any change will confirm your acceptance of the revised Terms. If you do not agree to the amended Terms, you must stop using the Services.
CERTIFICATION PROGRAM TERMS OF SERVICE
If the Services licensed to you by Salesforce under Salesforce Agreement includes a subscription to the Return Path Certification Program, then in addition to the Terms set forth above, the following terms shall apply to your use of the Return Path Certification Program:
The Certification Program
The Certification Program is Return Path’s performance-based whitelist. The email certification program requires that You adhere to Return Path’s Email Sender Standards (https://returnpath.com/certification-standards/, as amended by Return Path from time to time, the “Program Standards”). If You exceed Your permitted email volume during Your subscription term, You must upgrade Your permitted email volume to the appropriate email volume.
Return Path may require You to provide on a reasonable basis information that is necessary to confirm the accuracy of Your Certification application and for compliance with the Program Standards in Certification. Such information request shall be conducted remotely by Return Path and shall not require Return Path to connect to Your system or network.
Certification Termination for Cause
You acknowledge that Return Path may terminate Your participation in the Certification Program if:
(i) You are in violation of the Program Standards and do not cure such violation within fifteen (15) business days of being notified of such violation;
(ii) Your volume of email sent over IPs or domains enrolled in Certification exceeds the maximum volume permitted by the license; or
(iii) any of Your IPs or domains in Certification are not in and/or have not been compliance with Program Standards on multiple occasions (even if You have in each instance cured such non-compliance).
Suspension of Certification IP Addresses, Domains, and/or Account
You acknowledge that Return Path may immediately suspend and/or exclude one or more Certified IP Address and/or domain from Certification for any activity that is inconsistent with the objectives of these Terms of Use or the Program Standards, as determined by Return Path in its sole discretion, including, but not limited to, an increase in the number of complaints, triggering of “spam traps,” excessive “blacklisting,” high unknown user rates, and performance against metrics specified in the Program Standards.
By way of illustration and not limitation, Return Path, in its sole discretion may suspend (i) Your account if the volume of email sent exceeds the maximum volume allowed according to the license, unless You received prior written approval for excess volume from Return Path, and (ii) IP addresses, domains, or Your account if You send any unauthorized material over IP addresses or domains or if content of email messages sent does not meet applicable standards.
