Last revised on April 6, 2018, effective as of May 6, 2018

Please read these terms and conditions (“Agreement”) carefully. By signing up for an account with Peaberry Software Inc. (“Qimify.com”), or using the Qimify.com website (the “Site”), email messaging and analytics technology, and other services (collectively, the “Services”), you agree to the terms and conditions of this Agreement.

Please read Qimify.com’s Privacy Policy and Anti-Spam Policy, which along with any additional terms you agree to pursuant to this Agreement or by turning on specific features, are included as part of this Agreement. If you do not agree to all the terms and conditions of this Agreement, you do not have any right to use the Services.

1. ACCESS TO THE SERVICES

Subject to the terms and conditions of this Agreement, Qimify.com may provide the Services, which are selected by you, solely for you and your authorized users. Services shall include, but not be limited to, the offering of any materials displayed or performed on the Site and related features (including, but not limited to text, data, software, graphics, photographs, images, illustrations, audio clips and video clips, also known as the “Content”). Qimify.com may change, suspend or discontinue the Services for any reason, at any time, including the availability of any feature or Content. Qimify.com may also restrict your access to parts or all of the Services without notice or liability. Qimify.com may modify this Agreement at any time by posting a notice on the Services, or by sending you a notice via e-mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Services following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified. If at any time you do not agree to these terms and conditions, you must terminate your use of the Services. You will still remain liable for any obligations incurred or charges accrued on or before the date of termination.

You represent and warrant to Qimify.com that if you are an individual (i.e., not a corporation) you are at least 18 years of age. You also represent and warrant that you are legally permitted to use the Services and access the Site. 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” shall refer to such entity. This Agreement is void where prohibited by law, and the right to use the Services is revoked in such jurisdictions.

Qimify.com 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. Every reasonable step will be taken by Qimify.com to minimize such disruption where it is within Qimify.com’s reasonable control. Qimify.com will not be liable in any event to you or any other party for any suspension, modification, discontinuance or lack of availability of the Site, the Services, your Customer Data or other content.

2. INTELLECTUAL PROPERTY RIGHTS

As between Qimify.com and you, Qimify.com (or its licensors) is the sole and exclusive owner, and will retain all right, title and interest in and to the Services and Content. You shall not store any significant portion of the Content in any form. Copying or storing of any Content for other than personal, noncommercial use is expressly prohibited without prior written permission from Qimify.com, or from the copyright holder identified in such Content’s copyright notice. All trademarks, service marks, and trade names which appear on the Services are proprietary to Qimify.com or third parties. You shall abide by all copyright notices and restrictions contained in any Content accessed through the Services. Subject to the terms and conditions of this Agreement, Qimify.com grants you a nonexclusive, nontransferable right and license (without right to sublicense) to access and use the Services, solely for your personal, non-commercial purposes. You may not (except as provided in this Section of this Agreement) 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 Content, software, materials, or Services in whole or in part. Nor will you attempt to circumvent any of Qimify.com’s technical measures, or decompile, reverse engineer, or disassemble the Services.

3. COPYRIGHT

In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Qimify.com has a policy of terminating, in appropriate circumstances and in its sole discretion, account holders who are deemed to be repeat infringers. Qimify.com may also terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

If you think anyone has posted material to the Site or Services that violates any copyrights, then you can notify Qimify.com at win@Qimify.com.

Please see 17 U.S.C. §512(c)(3) for notification requirements. Qimify.com may give notice of a claim of copyright infringement to users by means of a general notice on the Site, electronic mail or by written communication.

4. CUSTOMER DATA

For any data you provide to Qimify.com, including data regarding your end users or e-mail campaigns in connection with your use of the Services (“Customer Data”), you grant Qimify.com a non-exclusive, worldwide, royalty-free, transferable license to use, modify, reproduce, and display such Customer Data (including all related intellectual property rights) to provide and improve the Services. You represent and warrant that you: (i) have the right to grant Qimify.com the rights set forth above, (ii) own all right, title and interest, or possess sufficient license rights, in and to the Customer Data as may be necessary to permit the use contemplated under this Agreement, and (iii) you will not contribute any Customer Data that (a) infringes any intellectual property right, proprietary right, or the privacy or publicity rights of another, is libelous, defamatory, obscene, pornographic, harassing, hateful, offensive or otherwise violates any law or right of any third party, (b) contains a virus, trojan horse, worm, or other computer programming routine or engine intended to detrimentally interfere with any system, data or information, or (c) causes damage to the systems of Qimify.com or its users in any way. You bear all responsibility and liability for the accuracy, completeness, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right of the Customer Data and Qimify.com’s access, possession and use as permitted herein.

If you disclose Customer Data which includes personally identifiable information or information that could be used to identify an individual (“Personal Information”), you represent and warrant that: (i) you comply with all applicable laws relating to the collection, use and disclosure of Personal Information; (ii) you maintain and abide by a privacy policy, which clearly and conspicuously discloses that: (a) you use third-party providers to provide services such as the Services to your end-users; and (b) you may disclose such Personal Information to providers like Qimify.com; (iii) you have made all required notifications and obtained all required consents and authorizations from your end users relating to the disclosure of end user Personal Information to a provider like Qimify.com; and (iv) you are responsible for assessing whether or not Qimify.com’s Site and Services are appropriate for your use with respect to your obligations under any applicable laws or regulations, including the EU Data Privacy Laws. If you are located in the European Union Economic Area (EEA) or Switzerland, or transmit data to end users in the EEA or Switzerland, you further represent and warrant that: (a) you have executed Qimify.com’s Data Processing Agreement (b) you will comply with all applicable laws and regulations that apply to the countries to which you transmit data through your use of the Site or Services; and (c) with respect to specific persons, you have the requisite permission to use the Site and Services for the purpose of receiving and processing data on any such person’s behalf, and that you will collect, store, transfer and use all data relating to specific persons in compliance with all applicable laws and regulations. You further acknowledge and agree that your indemnity obligation under the “Indemnity” section below applies to your disclosure of end user Personal Information under this Agreement.

Qimify.com reserves the right to remove any Customer Data from the Site and the Services at any time, for any reason or for no reason at all, though Qimify.com will make commercially reasonable efforts to alert you of such breach as soon as practicable. Qimify.com may, but is not obligated to, monitor Customer Data and remove any content or prohibit any use of the Services, including by refusing to send e-mail to your end users, if Qimify.com believes in its sole discretion such content or use may be (or is alleged to be) in violation of this Agreement or any applicable laws or may impact delivery. All information transmitted through the Services is the sole responsibility of the party from whom such information originated. Qimify.com does not assume liability for any Customer Data.

5. SITE SUBMISSIONS; FEEDBACK

Where Qimify.com has specifically invited or requested submissions or comments (e.g. comments to blog posts, participation in communities, tips, etc.) through the Site, Qimify.com encourages you to submit such content for consideration (“User Submissions”). User Submissions remains the property of the submitting party. By posting content on the Site, you expressly grant Qimify.com 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”) submitted to Qimify.com shall become the property of Qimify.com. Qimify.com 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, or operations.

6. CONFIDENTIALITY

Qimify.com’s communications to you and the Services may contain Qimify.com confidential information. Such confidential information includes any materials, communications, and information that are marked confidential or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed. If you receive any such confidential information, then you will not disclose it to any third party without Qimify.com’s prior written consent. Qimify.com 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 Qimify.com confidential information when compelled to do so by law if you provide reasonable prior notice, unless a court orders that Qimify.com should not receive notice. Qimify.com may disclose Customer Data at the request of any state, federal or other governmental agency or in response to any judicial process (including, without limitation, a subpoena).

7. COMMERCIAL TERMS

You may not use the Services for commercial purposes unless you have registered for an account and have either signed up for a paid plan or free trial, in which case you may use and access the Service for your internal commercial purposes.

Fees for the Services are posted on the Site, and such fees are due for any month on the same (or closest) date as the day you made your first payment. If your usage exceeds your sending limit, you’ll have to pay at the higher level for that month, as indicated on the Site. Qimify.com reserves the right to change fees at any time by posting an update to the Site or notifying you by email. You are responsible for payment of all applicable fees. You agree to provide valid and accurate credit card information and authorize Qimify.com to deduct the fees against that credit card. 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 Qimify.com for all sales, use, excise, and all other taxes and all duties, whether international, national, state or local, which are levied or imposed specifically by reason of the performance by Qimify.com under this Agreement; excluding, however, taxes measured by Qimify.com’s profits, overall sales, employment, and property or other taxes measured in whole or in part by the value of Qimify.com’s assets. You will not be liable for any taxes that Qimify.com fails to invoice.

Qimify.com will provide you with reasonable customer support and maintenance for the paid portion of the Services via e-mail. Qimify.com does not guarantee that the support will be available at a certain time or that Qimify.com will respond within a certain time or resolve all problems in connection therewith.

8. RESTRICTIONS

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 Qimify.com user. Qimify.com will not be liable for any failures in the Services or other problems which are related to your Customer Data or any equipment or service outside of Qimify.com’s facilities or control. You shall not use any part of the Site or 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 the Site or through the Services. You will use the Services only in compliance with all applicable laws (including but not limited to 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, EU Data Privacy Laws, or other laws. You represent, warrant and covenant that your use of the Services shall at all times comply with Qimify.com’s Anti-Spam Policy, as may be amended by Qimify.com 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.

9. WARRANTY DISCLAIMER

Qimify.com has no special relationship with or fiduciary duty to you. You acknowledge that Qimify.com 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 Content 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 Content. You release Qimify.com from all liability for your having acquired or not acquired Content and results through the Services. Qimify.com does not manage or control any business or individual that you may interact with through the Services, and Qimify.com accepts no responsibility or liability for any act or omission by such entity. You hereby waive any and all legal or equitable rights or remedies you have or may have against Qimify.com with respect to acts and omissions by such entities.

The Services may contain, or direct you to sites containing, information that some people may find offensive or inappropriate. Qimify.com makes no representations concerning any content contained in or accessed through the Services, and Qimify.com will not be responsible or liable for the accuracy, copyright compliance, legality 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, INCLUDING, WITHOUT LIMITATION, 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.

TO THE FULLEST EXTENT ALLOWED BY LAW, Qimify.com DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, RELIABILITY, AVAILABILITY, COMPLETENESS, LEGALITY OR OPERABILITY OF THE MATERIAL PROVIDED THROUGH THE SERVICES. BY USING THE SERVICES, YOU ACKNOWLEDGE THAT Qimify.com IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM RESULTING FROM (1) USE OF THE SERVICES; (2) DOWNLOADING INFORMATION CONTAINED ON THE SERVICES; (3) UNAUTHORIZED DISCLOSURE OF IMAGES, INFORMATION OR DATA THROUGH THE SERVICES; AND (4) THE INABILITY TO ACCESS OR RETRIEVE ANY CUSTOMER DATA FROM THE SERVICES, INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES OR ANY SIMILAR DESTRUCTIVE PROGRAM.

10. THIRD PARTY SITES AND SERVICES

Users of Qimify.com may gain access from the Services to third party sites on the Internet. Third party sites or services are not within the supervision or control of Qimify.com. Qimify.com makes no representations or warranties about any third party site or resource, and does not endorse the products or services offered by third parties. Qimify.com disclaims all responsibility and liability for content on third party websites. You hereby irrevocably waive any claim against Qimify.com with respect to third party content. Third party providers of ancillary services may require your agreement to additional or different license or other terms prior to your use or access of their sites or services. Any such agreement shall not in any way modify your Agreement here with Qimify.com.

11. REGISTRATION AND SECURITY

As a condition to using Services, you may be required to supply Qimify.com with certain registration information. You shall provide Qimify.com with accurate, complete, and updated registration information. Qimify.com reserves the right to refuse registration of or cancel an account in its discretion. If you are using the commercial version of the Services, you may grant access to your account to your employees, subject to any applicable seat limits and such users’ compliance with this Agreement. You shall be responsible for maintaining the confidentiality of your Qimify.com password and for all activity of any person who accesses the Services under your account.

12. INDEMNITY

You will indemnify and hold Qimify.com, 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 your access to or use of the Services, your violation of this Agreement, or 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, including but not limited to any third party claims relating to your disclosure of Personal Information to Qimify.com.

13. LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY, ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, MEMBERS, AGENTS AND REPRESENTATIVES BE LIABLE WITH RESPECT TO THE SERVICES FOR (A) ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND; OR (B) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, CUSTOMER DATA OR OTHER INTANGIBLES, OR IN THE CASE OF Qimify.com, DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF THE SITE, ERRORS OR OMISSIONS. Qimify.com’S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF: (A) AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM; OR (B) $25.00 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.

14. TERMINATION

This Agreement begins on the date you first use the Services and continues as long as you access them or, in the case of subscription users, as long as you have an account. For subscription users, your account is by default set to automatically renew every month (or other agreed to term), until you decline to do so. Either party may terminate the Services at any time by notifying the other party by any means. Qimify.com 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. Upon any such termination, your right to use the Services and access Customer Data through the Services will immediately cease. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnification obligations, and limitations of liability.

15. PRIVACY

Please review Qimify.com’s Privacy Policy, which governs Qimify.com’s use of Personal Information and Customer Data.

16. JURISDICTION

This Agreement shall 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 shall 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.

17. MISCELLANEOUS

The failure of either party to exercise in any respect any right provided for herein shall 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 shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Qimify.com’s prior written consent. Qimify.com may transfer, assign or delegate this Agreement and any or all of its rights and obligations without consent. If you are purchasing paid Services, Qimify.com may request, and with your consent, Qimify.com may publicly disclose in writing that you purchase paid Services and may use your trademarks, service marks or trade name solely in connection with such disclosures. This Agreement (including the Privacy Policy and Anti-Spam Policy) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority to bind Qimify.com in any respect whatsoever. Any notice that is required or permitted by this Agreement shall be in writing and shall 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 Qimify.com, to legal@Qimify.com or when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to: