This Mad Mimi Terms of Service Agreement (this “Agreement”) is entered into by and between Mad Mimi, c/o GoDaddy.com, LLC, a Delaware limited liability company ("Mad Mimi") and you, and is made effective as of the date of your use of this website (“Site”) or the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of Mad Mimi services (the “Services”), and represents the entire agreement between you and Mad Mimi concerning the subject matter hereof.
Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with our Universal Terms of Service Agreement, which is incorporated herein by this reference, and any other agreements or policies that are expressly incorporated herein.
The terms “we”, “us” or “our” shall refer to Mad Mimi. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
Mad Mimi Email Marketing services (the “Service”) enable corporate web sites, small business web sites, community sites and individual sites to sign up web site visitors, collect and store visitor subscription information, and build and conduct email communications with their contacts.
The number of contacts in your account is metered by Mad Mimi.
All subscription plan prices are subject to change at any time.
Monthly fees will be charged even if your account was not used to send emails.
It is understood that Mad Mimi makes no guarantee that HTML messages will be rendered properly on all recipients' email programs, due to the wide variety of HTML generation tools available. Mad Mimi makes every attempt to make sure that all email messages sent through our servers follow email standards, but we cannot guarantee that messages will look consistent across all email platforms. For example, if you use Microsoft Word to generate HTML email messages, it is expected that recipients of your message using a non-Microsoft email application may have difficulty reading your message. For best results Mad Mimi recommends, but does not guarantee, the use of HTML editors that generate HTML that adheres to W3C standards.
3. ANTI-SPAM POLICY
By using Mad Mimi, you acknowledge and agree to not use the Services for spam, and you agree to comply with the provisions of the CAN-SPAM Act. We have a zero-tolerance spam policy. You acknowledge and agree that we may immediately terminate any account that we believe, in our sole and absolute discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email activity.
The content you include in any email must be accurate and you may only use the Services to send emails to customers and contacts who have expressly opted in or given you permission to send emails to them. If you do not have written proof that each recipient on your contact list has expressly opted in or given you permission to send emails to them, do not include them in any email marketing campaign.
We prohibit the use of third-party, purchased, rented, or harvested mailing lists. You shall not send emails (i) to newsgroups, message boards, distribution lists, or unsolicited email addresses, or (ii) to any recipient who has opted out, unsubscribed, or otherwise objected to receiving such emails from you or another party on whose behalf you may be commissioned.
4. PROHIBITED USE
You may not use Mad Mimi to send email campaigns that link to or display pornography, other sexually explicit content, illegal goods or services, content that promotes, encourages, or engages in terrorism or violence, pyramid schemes, chain letters, multi-level marketing campaigns, affiliate and network marketing materials, or any other content we deem inappropriate. You may not exploit Mad Mimi's service agreement by systematically uploading, sending, deleting, then replacing contacts in order to send to more unique email addresses than you're permitted for your service level.
Unfortunately, some industries yield higher-than-normal abuse rates, which can negatively affect the deliverability for other Mad Mimi users. In order to maintain the highest possible delivery rates for all our users, Mad Mimi is unable to send on behalf of certain industries and senders. This includes, but is not limited to, the following:
- Pharmaceutical products
- Work from home, make money on online, and lead generation opportunities
- Online trading, day trading tips, or stock market-related content
- Gambling services, products, or tips
- Multi-level marketing (MLM)
- Affiliate marketing
- Credit repair and get out of debt opportunities
- Mortgage and loan content
- Nutritional, herbal, and vitamin supplements
- List brokers or list rental services
- Counterfeit or "knock off" products appearing to be another brand
It is the responsibility of the sender to ensure that their content falls within these guidelines. Mad Mimi may monitor your account to ensure compliance with these terms and operation within the acceptable standards of the industry and of the email providers you are sending to.
5. PRIVACY; THIRD PARTY SITES
You can also log in to our site using sign-in services such as Facebook Connect or an Open ID provider. These services will authenticate your identity and provide you the option to share certain personal information with us such as your name and email address to pre-populate our sign up form. Services like Facebook Connect give you the option to post information about your activities on this Web site to your profile page to share with others within your network.
If you do not log into your account for more than 120 days, the account will become inactive. When an account is classified (at Mad Mimi's sole discretion) as inactive, Mad Mimi will flag that account as inactive. INACTIVE ACCOUNTS HAVE 30 DAYS TO BECOME ACTIVE OR THE ACCOUNT AND ITS DATA, INCLUDING SUBSCRIBER SIGNUPS, WILL BE PERMANENTLY REMOVED FROM THE MAD MIMI DATABASE.
7. USER CONTENT
Some of the features of this Site or the Services may allow Users to view, post, submit, share, publish, store, or manage literary, artistic, musical, or other content, including but not limited to photos and videos (“User Content”). User Content includes all content submitted through your Account. By posting or publishing User Content to the Services or by sending User Content to third parties, you represent and warrant to Mad Mimi that you have all necessary rights to distribute User Content via this Site or via the Services, either because you are the author of the User Content and have the right to distribute the same, or because you have the appropriate distribution rights, licenses, consents, and/or permissions to use, in writing, from the copyright or other owner of the User Content, and (ii) the User Content does not violate the rights of any third party.
8. PROTECTION OF YOUR DATA
Mad Mimi offers certain hosted Services available to you that may involve the processing of personal data about you, your customers and/or web users (“Customer Data”) in the course of your use of these Services. Customer Data, for the purpose of this Section, excludes any User Content, Account information and usage data.
Mad Mimi’s Controller to Processor Data Processing Addendum(“DPA”), which is hereby incorporated by reference and applicable to Services, is meant to provide you contractual assurance that we have robust mechanisms to ensure the processing of Customer Data, including cross border transfers of Customer Data will meet compliance under applicable data protection laws.
For the purposes of the Controller to Processor DPA and the standard contractual clauses attached to the DPA, as applicable, you are considered the data controller/data exporter, and your acceptance of the Terms of Service governing Services at the time of purchase of any Services will also be treated as your acknowledgement and acceptance of the Controller to Processor DPA (including the standard contractual clauses and its appendices, as applicable). If you wish to print, sign and return a physical copy of the Controller to Processor DPA, please send an email request to [email protected].
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL MAD MIMI, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND ALL THIRD PARTY SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING ANY THAT MAY RESULT FROM (I) THE ACCURACY, COMPLETENESS, OR CONTENT OF THIS SITE, (II) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (III) THE SERVICES FOUND AT THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IV) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER, (V) THIRD-PARTY CONDUCT OF ANY NATURE WHATSOEVER, (VI) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL CONTENT, PERSONAL INFORMATION, FINANCIAL INFORMATION OR OTHER INFORMATION AND DATA STORED THEREIN, (VII) ANY INTERRUPTION OR CESSATION OF SERVICES TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (VIII) ANY VIRUSES, WORMS, BUGS, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR FROM THIS SITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS SITE, (IX) ANY USER CONTENT OR CONTENT THAT IS DEFAMATORY, HARASSING, ABUSIVE, HARMFUL TO MINORS OR ANY PROTECTED CLASS, PORNOGRAPHIC, “X-RATED”, OBSCENE OR OTHERWISE OBJECTIONABLE, AND/OR (X) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT MAD MIMI IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS SITE OR THE SERVICES FOUND AT THIS SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT SHALL MAD MIMI’S TOTAL AGGREGATE LIABILITY EXCEED $10,000.00 U.S. DOLLARS.
THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR YOUR USE OF THIS SITE OR THE SERVICES FOUND AT THIS SITE.
You agree to protect, defend, indemnify and hold harmless Mad Mimi and its officers, directors, employees, agents, and third party service providers from and against any and all claims, demands, costs, expenses, losses, liabilities and damages of every kind and nature (including, without limitation, reasonable attorneys’ fees) imposed upon or incurred by Mad Mimi directly or indirectly arising from your use of and access to this Site or the Services found at this Site; (ii) your violation of any provision of this Agreement or the policies or agreements which are incorporated herein; and/or (iii) your violation of any third-party right, including without limitation any intellectual property or other proprietary right. The indemnification obligations under this section shall survive any termination or expiration of this Agreement or your use of this Site or the Services found at this Site.
11. FEES AND PAYMENTS, INCLUDING AUTOMATIC RENEWAL TERMS
You agree to pay any and all prices and fees due for Services purchased or obtained at this Site at the time you order the Services. Mad Mimi expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at this Site and effective immediately without need for further notice to you. If you have purchased or obtained Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal as further described below.
IN ORDER TO ENSURE THAT YOU DO NOT EXPERIENCE AN INTERRUPTION OR LOSS OF SERVICES, MAD MIMI SERVICES OFFER AN AUTOMATIC RENEWAL OPTION. THE AUTOMATIC RENEWAL OPTION AUTOMATICALLY RENEWS THE APPLICABLE SERVICE FOR A RENEWAL PERIOD EQUAL IN TIME TO THE MOST RECENT SERVICE PERIOD. FOR EXAMPLE, IF YOUR LAST SERVICE PERIOD IS FOR ONE MONTH, YOUR RENEWAL PERIOD WILL BE FOR ONE MONTH. THEREFORE, UNLESS YOU CANCEL YOUR ACCOUNT OR SUBSCRIPTION TO THE SERVICES, MAD MIMI WILL AUTOMATICALLY RENEW THE APPLICABLE SERVICE WHEN IT COMES UP FOR RENEWAL AND WILL TAKE PAYMENT FROM THE PAYMENT METHOD YOU HAVE ON FILE WITH MAD MIMI AT MAD MIMI’S THEN CURRENT RATES, WHICH YOU ACKNOWLEDGE AND AGREE MAY BE HIGHER OR LOWER THAN THE RATES FOR THE ORIGINAL SERVICE PERIOD.
12. COMPLIANCE WITH LOCAL LAWS
Mad Mimi makes no representation or warranty that the content available on this Site or the Services found at this Site are appropriate in every country or jurisdiction, and access to this Site or the Services found at this Site from countries or jurisdictions where its content is illegal is prohibited. Users who choose to access this Site or the Services found at this Site are responsible for compliance with all local laws, rules and regulations.
13. GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF TRIAL BY JURY
This Agreement shall be governed by and construed in accordance with the federal law of the United States and the state law of Arizona, whichever is applicable, without regard to conflict of laws principles. You agree that any action relating to or arising out of this Agreement shall be brought in the state or federal courts of Maricopa County, Arizona, and you hereby consent to (and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to) jurisdiction and venue in the state and federal courts of Maricopa County, Arizona. You agree to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement.
14. TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
15. ENGLISH LANGUAGE CONTROLS
This Agreement, along with all policies and the applicable product agreements identified above and incorporated herein by reference (collectively, the “Agreement”), is executed in the English language. To the extent any translation is provided to you, it is provided for convenience purposes only, and in the event of any conflict between the English and translated version, where permitted by law, the English version will control and prevail. Where the translated version is required to be provided to you and is to be considered binding by law both language versions shall have equal validity, (ii) each party acknowledges that it has reviewed both language versions and that they are substantially the same in all material respects, and (iii) in the event of any discrepancy between these two versions, the translated version may prevail, provided that the intent of the Parties has been fully taken into consideration.