PLEASE READ THE FOLLOWING TERMS CAREFULLY BECAUSE, BY ACCESSING YESWARE.COM OR DOWNLOADING, INSTALLING AND USING SERVICES AVAILABLE ON YESWARE.COM, YOU ACCEPT AND AGREE TO THEM.  PLEASE ALSO READ OUR PRIVACY POLICY TO LEARN HOW WE COLLECT AND USE INFORMATION.

Last revised November 15, 2012

WELCOME TO YESWARE!

These Yesware Service Terms (these “Terms”) explain the relationship between Yesware, Inc. (“Yesware”, “we” or “us”) and you when you (i) access and use yesware.com and its related domains (together, the “Site”) and/or (ii) download, install, use and in some cases purchase Yesware’s proprietary email software applications (including all related documentation, updates and upgrades) and any other services offered through the Site (the “Yesware Services”). 

These Terms govern visitors’ access to and use of the public areas of the Site, as well as access to and use of the Yesware Services.  Unless otherwise indicated, “Yesware Services” as used throughout these Terms includes the public areas and the Yesware Services.  For the purposes of these Terms, “you” or “your” refers to you as a visitor to or registered user of the Yesware Services.

THESE TERMS, TOGETHER WITH OUR PRIVACY POLICY, FORM AN AGREEMENT BETWEEN YOU AND YESWARE.  BY USING THE YESWARE SERVICES, YOU REPRESENT TO US THAT YOU ARE LEGALLY COMPETENT TO ENTER INTO THIS AGREEMENT.
IF YOU ARE USING THE YESWARE SERVICES ON BEHALF OF YOUR EMPLOYER, YOUR ACCEPTANCE OF THESE TERMS IS DEEMED AN AGREEMENT BETWEEN YOUR EMPLOYER AND YESWARE AND YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND YOUR EMPLOYER TO THESE TERMS.

1.  License Grant.  The Yesware Services are owned by Yesware and are licensed, not sold, to you. Yesware grants to you a personal, nonexclusive, nontransferable, limited license (without the right to sublicense) to access and use the Site and to access, download, install and use the Yesware Services subject to the limitations set forth in these Terms, any relevant purchase order or ordering document related to the Yesware Services (“Order Form”) and any and all other terms and policies set forth in the Yesware Services.  You acknowledge that the source code for the Yesware Services and other trade secrets embodied in the Yesware Services have not been and will not be licensed or otherwise disclosed to you.  All rights not expressly granted herein are reserved by Yesware.

2.  Use of Yesware Services. 

2.1 Registration: Unless you are visiting only the public areas of the Site, you are required to register and create an account to use the Yesware Services (“Account”).  You agree that you will maintain and update your registration and account information to ensure it is current, complete and accurate and that we have the right to terminate your Account and use of the Yesware Service if you provide untrue, incomplete or inaccurate information. 

2.2 Your Responsibilities: You are responsible for providing the equipment and services that you need to access, download, install and use the Yesware Services.  Yesware does not guarantee that the Yesware Services are accessible on any particular equipment or device or with any particular software or service plan. 

You are responsible for all activities that occur through your Account, whether or not authorized by you.  Please do not share your Account with any other person. 

You will use the Yesware Services only for your internal business purposes and in accordance with applicable laws, rules and regulations.  You are responsible for all of your activities that occur within, through or as a result of your use of the Yesware Services.  You agree that you will not use the Yesware Services for unlawful purposes or to engage in any illegal, offensive, indecent or objectionable conduct, including violation of any third party privacy or other rights. You agree that you will not use the Yesware Services if you are under the age of majority in your place of residence or otherwise not fully able and competent to agree to these Terms.

If you use the Yesware Services on your mobile device, you are solely responsible for all message and data fees charged by your wireless service provider. Please contact your mobile service provider for pricing plans and details.  Yesware is not liable for any delays, interruptions or other transmission errors related to your device, service or wireless service provider.

Except as specifically permitted in these Terms or expressly authorized in writing by Yesware, you agree that you will not directly or indirectly: (a) distribute, sell, assign, encumber, transfer, rent, lease, sublicense, modify or time-share the Yesware Services; (b) use any of the Yesware Services in any service bureau arrangement; (c) reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify any of the Yesware Services; or (d) permit any third party to engage in any of the acts described in clauses (a) through (c). 

You are not permitted to: (w) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in any of the Yesware Services; (x) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer any of the Yesware Services; (y) use any means to discover the source code of the Yesware Services or to discover the trade secrets in the Yesware Services; or (z) otherwise circumvent any functionality that controls access to or otherwise protects the Yesware Services.

You are responsible for complying with all laws, rules and regulations (including those relating to internet, data and email privacy) that apply to your use of the Yesware Services.

2.3 Our Responsibilities: Yesware is responsible for providing the Yesware Services in accordance with these Terms and all applicable laws, rules and regulations.

We will maintain commercially reasonable administrative, physical and technical safeguards intended to protect the security, confidentiality and integrity of information that you provide to or through the Yesware Services (including Your Content as defined in Section 3 below).

Yesware reserves the right but is not obligated to improve, enhance or modify the Yesware Services.  We will notify you in advance of changes to the Yesware Services that may significantly adversely affect the manner in which you use the Yesware Services or the manner in which the Yesware Services perform.

Yesware is not responsible for the content of Other Services or for losses, liabilities, actual or pending claims, actions, damages, expenses, costs of defense and reasonable attorneys’ fees (“Claims”) arising from your use of content, information, web sites, Software, services and other materials of third parties with which you may interact when you use the Yesware Services (collectively, “Other Services”).  YOU ACCESS OTHER SERVICES ENTIRELY AT YOUR OWN RISK AND YOU ARE RESPONSIBLE FOR COMPLYING WITH TERMS AND CONDITIONS APPLICABLE TO YOUR ACCESS AND USE OF OTHER SERVICES. 

2.4 Availability: We use commercially reasonable efforts to make the Yesware Services available to you 24 hours per day, seven (7) days per week, excluding scheduled maintenance time, unavailability caused by you or any software, hardware or service not provided by us, unscheduled downtime and/or any cause beyond our reasonable control (including without limitation nature disasters, wars, terrorist act, civil disturbances, acts of any government or agency thereof, strikes or other labor problems, Internet service or other third party service providers’ failures or delays and systemic electrical, telecommunications or other utility outages or failures).

2.5 Limitations: Yesware Services are subject to other limitations, such as limits on the amount of email tracking, as specified within the Yesware Services or the applicable Order Form(s).

3.   Your Content.  The Yesware Services allow you to upload, transmit and use information and other content to and through the Yesware Services (collectively, “Your Content”).  You are solely responsible for the accuracy, quality, legality and means by which you acquired Your Content.  You understand that Yesware will use Your Content to provide the Yesware Services to you.  You have or will obtain all rights necessary to provide Your Content to Yesware and you hereby grant Yesware a worldwide license to use, reproduce, transmit, display and adapt your Content as necessary for Yesware to provide the Yesware Services to you in accordance with these Terms.

Without limiting the terms of our Privacy Policy, you understand that we do not guarantee that your use of the Yesware Services and/or Your Content will be private or secure and we are not responsible or liable to you for any lack of privacy or security that you may experience.  Information collected by your internet or mobile service provider and other third parties is used, stored, transferred and disclosed pursuant to your internet or mobile service provider’s or the third party’s terms, policies and practices. 

We encourage you to carefully consider disclosure of any information that might be accessible to others. You are fully responsible for taking precautions and providing security measures best suited for your situation and intended use of the Yesware Services.

4.   Paid Yesware Service.  Yesware offers enhanced Yesware Services for a fee (“Paid Yesware Service). The Paid Yesware Service provides you with unlimited email tracking for a monthly fee at the then-current rates as described at www.yesware.com/product-tour (“Fee Schedule”).  Yesware reserves the right to change the Fee Schedule upon thirty (30) days advanced notice to paying customers.

Yesware does not store, process or transmit any of your credit card data but relies entirely on Stripe, Inc.  to handle these functions.  Payments due for the Paid Yesware Services are subject to the terms of the online order process at https://stripe.com/terms/US.  If you do not agree to Stripe’s terms, then please do not sign up for the Paid Yesware Service.

Your Paid Yesware Service will not be activated until your first payment is received.  Payments are due in accordance with the Fee Schedule every thirty (30) days in advance. Monthly fees are automatically charged to the credit card that you provided when you registered for the Paid Yesware Service.  To cancel the Paid Yesware Service, visit your My Account page and click the 'Cancel Subscription' link.  We begin to process cancellation requests immediately, but your credit card provider may require several days to process your cancellation request.  We are not responsible for delays caused by your credit card company.

If payment in full of any amount owed to Yesware under these Terms is not received by Yesware within thirty (30) days after such payment has become due, such amounts will thereafter bear interest at the rate 0.05% per day or the maximum rate permitted by applicable law, whichever is less. If any payment due Yesware is collected at law or through an attorney at law or under advice therefrom or through a collection agency, you agree to pay all costs of collection, including, without limitation, all court costs and reasonable attorneys' fees.

5.   Warranties.  We warrant that we have validly entered into these Terms and have the legal power to do so.  You warrant that (i) you have validly entered into these Terms and have the legal power to do so and (ii) you have all necessary rights, licenses, consents and permissions to use Your Content with the Yesware Services.

EXCEPT AS EXPRESSLY PROVIDED ABOVE, YOU ACKNOWLEDGE THAT THE YESWARE SERVICES ARE SUPPLIED TO YOU ON AN "AS IS" BASIS AND THAT USE OF THE YESWARE SERVICES IS AT YOUR SOLE RISK. YESWARE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE YESWARE SERVICES AND THE USE, PERFORMANCE, OPERATION AND SUPPORT THEREOF, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT, ACCURACY, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE.  YESWARE DOES NOT WARRANT THAT (A) THE YESWARE SERVICES WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE YESWARE SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE YESWARE SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATIONS OR ANY PARTICULAR SYSTEMS OR DEVICES, (D) DEFECTS IN THE YESWARE SERVICES WILL BE CORRECTED OR (E) THAT THE YESWARE SERVICES WILL BE AVAILABLE FOR REINSTALLS ON THE SAME OR MULTIPLE DEVICES.  ANY ORAL OR WRITTEN ADVICE PROVIDED BY YESWARE OR ITS AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

6.   Limitation of Liability.  YESWARE’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THE DELIVERY, USE OR PERFORMANCE OF THE YESWARE SERVICES OR THESE TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) WILL NOT EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT; PROVIDED THAT IN NO EVENT SHALL YESWARE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE FOREGOING LIMITATION WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS. 

IN NO EVENT WILL YESWARE BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL AND PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE YESWARE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF YESWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING DISCLAIMER OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

You agree that the above limitations of liability, together with the other provisions in these Terms that limit liability, are essential terms of these Terms and that Yesware would not be willing to grant you the rights set forth in these Terms but for your agreement to these limitations of liability.


7.   Ownership.  The Yesware Services, including the "look and feel" (e.g., text, graphics, images, logos), content and other material, are protected under copyright, trademark and other laws.  You acknowledge and agree that Yesware owns all right, title and interest in and to the Yesware Services (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests.  You do not acquire any rights or licenses under any of Yesware’s copyrights, patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these Terms.  Any and all (a) suggestions for correction, change and modification to the Yesware Services, evaluation data, evaluations and other feedback (including but not limited to quotations of written or oral feedback, information and reports provided to Yesware by you (collectively, “Feedback”)), and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by Yesware or otherwise relating to the Yesware Services (collectively, “Revisions”), are and will remain the property of Yesware.  You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Yesware Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of Yesware and Yesware may use and disclose Feedback and Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Yesware any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights) that you may have in and to any and all Feedback and Revisions. Upon request by Yesware, you will execute any document, registration or filing required to give effect to the foregoing assignment.


8.  Indemnification. You agree to indemnify and defend Yesware and its affiliates, directors, officers, employees and agents from and against all Claims brought against Yesware by any third party arising from your use of the Yesware Services or any violation of these Terms,  the rights of a third party or applicable law.  Your indemnification obligations set forth in this Section 8 apply to any applicable actions taken under your Account.  Yesware reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification hereunder.  In any event, no settlement that affects the rights or obligations of Yesware may be made without Yesware’s prior written approval.

9. Modifications to Terms. We may modify these Terms at any time.  Modifications become effective immediately upon your first access to or use of the Yesware Services after the “Last Revised” date at the top of this page.  Your continued access or use of the Yesware Services after the modifications become effective is deemed your conclusive acceptance of the modified Terms.

10. Termination. These Terms will automatically terminate when you fail to comply with any term or condition of these Terms.   Upon termination, you will cease all use of the Yesware Services and will destroy any copy (full or partial) of any and all parts of the Yesware Services in your possession or control. Termination will not limit any of Yesware’s other rights or remedies at law or in equity. This Section 11 along with Sections 6, 7, 8 and 15 will survive any termination or expiration of these Terms. 

11.   Export Laws. You agree that you will not export or re-export, directly or indirectly, the Yesware Services and/or other information or materials provided by Yesware hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. You are responsible for and hereby agree to comply at your sole expense, with all applicable United States export laws and regulations.

12. U.S. Government Restricted Rights. The Yesware Services are “commercial computer software” and “commercial computer software documentation” as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the Yesware Services by or on behalf of the U.S. Government is subject to restrictions as set forth in these Terms.

13.   Taxes. You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed on or in connection with these Terms or the Yesware Services by any authority.

14.   Remedies. You agree that a breach or a threatened breach of these Terms will cause injury to Yesware for which money damages will not provide an adequate remedy and Yesware will be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.

15.  Notice to California Residents.  Under California Civil Code Section 1789.3, California residents are entitled to the following specific consumer rights information: 

The provider of the website is:
Yesware, Inc.
109 Kingston St, 5th floor
Boston, MA 02110

To file a complaint regarding the website or to receive further information regarding use of the website, send a letter to the above address or contact Yesware via e-mail (with “California Resident Request” as the Subject Line). You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.

16.  Miscellaneous. These Terms may not be modified except by a writing executed by the duly authorized representatives of Yesware. No other act, document, usage or custom will be deemed to modify or amend these Terms. These Terms will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms and the licenses granted hereunder may be assigned by Yesware but you may not assign them without the prior express written consent of Yesware. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired.  If either party fails to perform any term hereof and the other party does not enforce such term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in these Terms will be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers or partners for any purpose. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party's performance will be extended for the period of delay or inability to perform due to such occurrence. The headings and captions contained herein are for convenience only. These Terms are governed by and construed and enforced in accordance with the internal laws of the Commonwealth of Massachusetts, without giving effect to the principles of conflicts of laws of such state, and is binding upon the parties hereto in the United States and worldwide. You and Yesware agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the interpretation or construction of these Terms. Any litigation by one party against the other arising under these Terms or concerning any rights under these Terms will be commenced and maintained in any state or federal court located in the Commonwealth of Massachusetts and both parties hereby submit to the jurisdiction and venue of any such court. For disputes involving an amount less than $10,000, the parties agree to resolve the dispute through binding arbitration to be held in Boston, Massachusetts under the rules of the American Arbitration Association. Any claim arising out of these Terms, the Yesware Services must be brought within one (1) year of the date on which the claim arose.  These Terms, together with our Privacy Policy, contain the entire understanding of the parties with respect to the matters contained herein and there are no promises, covenants or undertakings other than those expressly set forth herein.

Please direct questions regarding these Terms to support@yesware.com with “Terms of Service” in the subject line.

Yesware, Inc.
109 Kingston St, 5th floor
Boston, MA
www.yesware.com