Terms of Use

Thanks for choosing ahoy!. Please carefully read these terms of use, as they form a part of the legal agreement between you and ahoy!. These Terms of Use (“Terms,” including our Privacy Policy, Messaging Policy, and Copyright Policy) define the terms and conditions under which you’re allowed to use ahoy!, and how we’ll treat your account while you’re a Customer. If you have any questions about these terms of use, please contact us at legal@ahoyemail.com.

Please read these Terms carefully. By using ahoy! or signing up for an account, you’re agreeing to these Terms. ahoy! (“ahoy!” or the “Services”) is a set of Services offered through the URL www.ahoyemail.com and www.piratelabs.co (the “Websites”) that design and develop websites, apps, and graphics and allow you to create, send, and manage email newsletters (each message is called an “Email”) to individual Subscribers. ahoy! is owned and operated by Ahoy Technologies, Inc, d/b/a ahoy! and Longstreet Solutions Inc, d/b/a Pirate Labs, State of Georgia corporations, (collectively, “ahoy!”, “we”, “us” or “our”). ahoy! has employees, independent contractors, partners, and representatives (“our Team”).

As a customer of the Services, or a representative of an entity that’s a customer of the Services, you’re a “Customer” according to this agreement (or “User,” “you”). 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 the agreement, in which case the terms “you,” “your,” or “Customer” shall refer to such entity and its affiliates as applicable. If you do not have such authority, or if you do not agree with these terms of use, you must not accept this agreement and may not use the Services.

DEFINITIONS

  1. Applicable Law” means international, federal, state or local treaties, laws, rules, regulations or ordinances applicable to the provision or use of the Services.
  2. Customer” (or “you” or “your”) means the person, company, or other legal entity on behalf of which these Terms of Use are accepted.
  3. Customer Applications” mean the applications, web domains, devices, software applications, and communication channels owned or controlled by Customer and used in connection with the Services.
  4. Customer Data” means all data and content submitted directly or indirectly by the Customer and processed or stored by the Services.
  5. Email” is an electronic message sent by Customer through the Services.
  6. Malicious Code” means code, files, scripts, agents or programs intended to do harm including, for example, viruses, worms, time bombs and Trojan horses.
  7. Messaging Policy” means the ahoy! policy describing the appropriate use of the Services. The most recent version is available at:
  8. Privacy Policy” means the ahoy! policy describing how Personal Information (as defined in the Privacy Policy) is collected, used, and disclosed. The most recent version is available at:
  9. Prohibited Data” means: (a) government issued ID numbers such as passport numbers, taxpayer numbers, driver’s license numbers, and social security numbers; (b) individual medical or health information (including, for example, protected health information under HIPAA); (c) individual financial information or full account numbers (including, without limitation, primary account numbers); (d) security codes or passwords (excluding one-time password resets); or (e) “sensitive personal data” under the Directive 95/46/EC, (or after 25 May 2018, “special classes of data” under the EU General Data Protection Regulation) of EU residents or similar information under other comparable laws or regulations.
  10. Subscriber” means the person receiving an Email.
  11. Security Policy” means the ahoy! policy for securing the integrity, confidentiality, and availability of Customer Data and protecting Customer Data against any unauthorized or unlawful acquisition, access, use, disclosure, or destruction. The most recent summary of the Security Policy is available at:
  12. Services” means ahoy!’s: (a) proprietary email marketing software as a service; and (b) other related services such as web design and development, graphic design, and application development.
  13. ahoy! Data” means all software, documentation, scripts, images, videos, data, templates, information, and other content provided with the Websites or Services.
  14. Term of Use” means these ahoy! Terms of Use and all terms included as URL links referenced therein.
  15. Third Party Applications” means third party web-based or offline software applications, operating systems, platforms, networks, certificates, or devices that interoperate with the Services. For purposes of clarity, Third Party Applications do not include any subcontractors of ahoy!.
  16. User” means an individual who is authorized by Customer to use the Services on its behalf and to whom Customer (or ahoy! at Customer’s request) has supplied a login ID, password, and/or API key to access and use the Services (“User ID”). Users may include Customer’s employees, consultants, contractors and agents, but may not include any competitors of ahoy!.
  17. Websites” means the URL www.ahoyemail.com or such other URLs designated by ahoy! from time to time.

ACCOUNT, TERMS, SERVICE

Eligibility

In order to use ahoy!, you must:

  1. be at least eighteen (18) years old and able to enter into contracts;
  2. complete the registration process;
  3. agree to the Terms;
  4. provide true, complete, and up to date contact information; and
  5. not be based in Cuba, Iran, North Korea, Syria, or any other country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist-supporting” country.

By using the Services, you represent and warrant that you meet all the requirements listed above, and that you won’t use ahoy! in a way that violates any laws or regulations. Note that by representing and warranting, you are making a legally enforceable promise.

ahoy! may refuse service, close accounts of any users, and change eligibility requirements at any time.

Term

When you sign up for the Services and agree to these Terms, the Agreement between you and ahoy! is formed, and the term of the Agreement (the “Term”) will begin. Clicking the button and entering your username to sign up means that you’ve officially “signed” the Terms. If you sign up for the Services on behalf of a company or other entity, you represent and warrant that you have the authority to accept these Terms and enter into the Agreement on its behalf.

The Term will continue for as long as you have an ahoy! account or until you or we terminate the Agreement in accordance with these Terms, whichever happens first.

Termination & Refunds Upon Termination

You or ahoy! may terminate this Agreement at any time and for any reason by terminating your ahoy! account or giving notice to the other party. We may suspend our Services to you at any time, with or without cause. If we terminate your account without cause, we’ll refund a prorated portion of your monthly prepayment. We won’t refund or reimburse you in any other situation, including if there’s cause, like a violation of these Terms or our Messaging Policy. In no event will termination relieve Customers of their obligation to pay any Fees payable to ahoy! for the period prior to the effective date of termination. Once terminated, we may permanently delete your account and all the data associated with it, including your Campaigns and your emails from our Websites. If you don’t log in to your account for 12 or more months, we may treat your account as “inactive” and permanently delete the account and all the data associated with it.

Modifications

ahoy! reserves the right to prospectively change or modify any of the terms and conditions contained in the Agreement. ahoy! will make reasonable efforts to notify you of such changes, which may include posting an announcement on the Websites, in-application notices, or via email. ahoy! additionally reserves the right to change or modify the Services and Websites at any time. Your continued use of the Services following ahoy!’s posting or notice of the change(s) will constitute your acceptance of such change(s). Unless you terminate your account within ten (10) days, the new Terms will be effective immediately and apply to any continued or new use of ahoy!.

Provision of Services

During the Term, ahoy! Shall make the Services available to you pursuant to these Terms of Use. You are solely responsible for procuring, installing and maintaining any hardware, software, or other equipment as may be necessary for you to connect to, access, and use the Services.

Account and Password

You’re responsible for keeping your account name and password confidential. You’re also responsible for any account that you have access to and any activity occurring in such account (other than activity that ahoy! is directly responsible for that isn’t performed in accordance with your instructions), whether or not you authorized that activity. You’ll immediately notify us of any unauthorized access or use of your accounts. We’re not responsible for any losses due to stolen or hacked passwords. We don’t have access to your current password, and for security reasons, we may only reset your password. We have the right to update any of your contact information in your account for billing purposes. In addition, you represent and warrant that all information you provide to us when you establish an account, and when you access and use the Service, is and will remain complete and accurate.

Account Disputes

We don’t arbitrate disputes over who owns an account. You won’t request access to or information about an account that’s not yours, and you’ll resolve any account-related disputes directly with the other party. We decide who owns an account based on the content in the account, and if multiple people or entities are identified in the content, then we’ll rely on the contact information listed for that account.

In cases where differing contact and profile information is present, we’ll require you to resolve the matter through proper channels outside of ahoy!. When a dispute is identified, we may suspend any account associated with the dispute, including disabling login and sending capabilities, to protect the security and privacy of the data held within the account.

FEES AND PAYMENT

Monthly Plans

When you sign up for a Monthly Plan, you agree to recurring billing. Billing occurs on the same day each month, based on the date that you started the Monthly Plan. Billing for Monthly Plans may be paused, and you may choose to close your account permanently at any time. Our charges for monthly plans are posted on our Websites and may be changed from time to time. If any part of a month is included in the Term, then payment is due for the full month. Payments are due for any month on the same or closest date to the day you made your first monthly payment (the “Pay Date”). If you go over your subscriber or sending limit and reach another pricing level, then you’ll have to pay at the higher level on or before the next pay date. If the Term ends before that payment is due, you’ll still be required to make one payment at the higher level.

Charges for Add-Ons

Some features and services are offered as add-ons to the Service. If you add on a feature that has a fee (for example, a one-time add-on such as a template design or a recurring add-on such as campaign management), then you will be billed that additional amount with each billing cycle for as long as the add-on is active. If you choose an Add-On, you’ll still be considered a Customer, and all the terms of this Agreement will still apply to you. If your account is inactive for more than 12 months, your Add-On may be deleted. If you use an Add-On in a way that violates these Terms, then we may terminate your account.

Payment Disputes

In the event you dispute any portion of the Fees paid or payable (a “Payment Dispute”), you must provide written notice to ahoy! within seven (7) days of the billing (“Payment Dispute Period”) and the parties will work together in good faith to resolve the Payment Dispute promptly. If you do not provide written notice of the Payment Dispute within the Payment Dispute Period, you will not be entitled to dispute such Fees paid or payable.

Late Payments

Your failure to pay any undisputed amounts due under the Agreement on a timely basis will be deemed material breach of the Agreement. If any amount owed by you under the Agreement is overdue, ahoy! may, without limiting its other rights and remedies, accelerate your unpaid fee obligations under the Agreement so that all such fees become immediately due and payable. ahoy! shall not exercise such acceleration right specified above if you timely exercise your right to dispute payments in accordance with the “Payment Disputes” section. If ahoy! must take action to collect overdue fees under the Agreement,you agree to pay all reasonable costs and expenses incurred by ahoy! for collecting such overdue fees including, for example, collection fees, reasonable attorney fees and court costs.

Taxes

Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature on the Services including, for example, value-added, sales, use, or withholding taxes assessable in any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with your purchase(s) of the Services hereunder, excluding any taxes that relate to the income, property, or payroll of ahoy!. If you do not provide ahoy! with a valid tax exemption certificate authorized by the appropriate taxing authority and ahoy! pays Taxes for which you are responsible under this Section, ahoy! shall bill you and you shall pay that amount to ahoy!.

Credit Cards

As long as you’re a Customer with a paid account or otherwise have an outstanding balance with us, you’ll provide us with complete and accurate billing contact and credit card information and authorize us to deduct the monthly charges against that credit card for all fees due. You’ll notify us or replace the information for any credit card that expires with information for a valid one. If your credit card is automatically replaced with a new card by a payment processor, you acknowledge and agree that we’re authorized to deduct any charges on your account against the new credit card. Anyone using a credit card represents and warrants that they 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 we’re unable to process your credit card order, we’ll try to contact you by email and suspend your account until your payment can be processed. All amounts payable shall be in the currency of the United States.

Refunds

We’ll give you a refund for a prepaid month if we stop providing our Services to you for a reason that’s not laid out in these Terms or our Messaging Policy. You won’t be entitled to a refund from us under any other circumstances. We may, at our sole discretion, offer a refund if a Customer requests one.

Billing Changes

We may change our fees at any time by posting a new pricing structure to our Websites and/or sending you a notification by email. Quoted fees don’t include sales or other transaction-based taxes of any kind.

DATA

Ownership of the Services

You will respect our proprietary rights in the Websites and the software used to provide the Services. ahoy! (and its licensors, where applicable) shall own all right, title and interest, including all inventions (whether patented or not), patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, in and to the Services and all modifications, extensions, customizations, scripts or other derivative works of the Services (“Intellectual Property Rights”).

No such rights are granted to you other than as expressly set forth herein, and ahoy! (and its licensors, where applicable) reserve all rights not expressly granted. You agree not to challenge the validity of, or ahoy!’s ownership of, Intellectual Property Rights in and to the Services or Websites or any part thereof. You agree to provide ahoy! with reasonable assistance with enforcing its rights at ahoy!’s own expense. Any enforcement of ahoy!’s rights, however, will remain within ahoy!’s sole discretion, including whether, and how, to proceed with any enforcement activity.

ahoy! Data

Unless otherwise noted within the Websites or Services, ahoy! owns ahoy! Data. ahoy! retains all rights, title, and interest including, without limitation, all Intellectual Property Rights to the ahoy! Data and all derivatives thereof.

Customer Data

You represent and warrant that you either own or have permission to use all of the material, content, data, and information (including your personal information and the personal information of others) you submit to ahoy! And in the course of using the Services (“Content”).

You hereby grant to ahoy! a worldwide, limited-term, non-exclusive, non-transferable (except pursuant to a permitted assignment under these Terms of Use), royalty-free license during the applicable Term to receive, copy, modify, display, store, perform and distribute copies of Customer Data solely for the purpose of providing the Services (including using the Services with any linked Third Party Applications) in accordance with the Agreement.

Connected Sites

When you connect your Site with ahoy!, you agree that ahoy! may automatically install a JavaScript tracking snippet on your Site at the time of connection and/or re-authorization. This snippet is necessary to enable several of ahoy!’s powerful e-commerce automations, reporting and other features. Some of these automations and features work by allowing you to track the activity of your subscribed contacts on your Site through the use of cookies or similar technologies, such as pixels. The JavaScript snippet will allow cookies, pixels, and other technologies to be set by your Connected Site, giving you full access to the automations, features, and functionality offered by ahoy!. The specific cookies, pixels, or other technologies that will be set on your Site will depend on the particular automations and features within ahoy! that you choose to use. The following automations and features are enabled by the Javascript snippet:

  • Purchase Follow-Up Emails: the Javascript snippet will allow your Site to deploy a ahoy! cookie on a subscriber’s device when the subscriber clicks a link within a purchase follow-up email. This cookie tracks attribution rates and browser activity, allowing ahoy! to provide you with reporting on the success of your purchase follow-up emails.

It is your responsibility to understand how your use of the available e-commerce automations and features will impact your Connected Site, including whether a particular e-commerce automation or feature will cause your Connected Site to deploy any tracking technologies. You can visit ahoy!’s Cookie Statement at any time for a description of the cookies and tracking technologies that can be employed by a ahoy! user through the use of ahoy!.

If you choose to enable automations or features that rely on the JavaScript snippet once your Site is connected, you represent and warrant that (1) you have permission from your subscribed contacts to track activity via cookies, pixels, and other similar technologies, and to transfer information related to this tracking to ahoy!, and (2) your Site adequately discloses your tracking practices and use of cookies, pixels, and similar technologies in a Privacy Policy, Cookie Statement, or other disclosure.

In addition to the above, you also understand and agree:

  1. ahoy! may modify, change, or discontinue the ability to integrate Connected Sites with your ahoy! account at any time.
  2. ahoy! may refuse service or limit, suspend, or terminate your use of Connected Sites integrations at any time, with or without cause.
  3. You may discontinue your use of Connected Site integrations at any time by requesting to delete your ahoy! account and removing the ahoy! integration from your Site or e-commerce platform. When you disconnect your Site from ahoy!, any information obtained by the cookies, pixels, or similar technologies set by the Javascript tracking snippet on your Site will no longer be received by ahoy!.
  4. To continue enabling the automations and features that you have chosen to turn on, ahoy! may need to modify or change the code within the JavaScript snippet installed on your Site in the future. These modifications or changes may cause your Site to deploy additional tracking technologies, or result in the deletion of cookies, pixels, or similar technologies being set by your Site.

If you have a Shopify Connected Site, you further understand and agree:

  1. As between Shopify and ahoy! only, ahoy! is solely responsible for the Services offered by ahoy!, and Shopify is not liable for any fault in the Services or any harm that may result from installation or use of the Services.
  2. Except where expressly stated by Shopify, Shopify cannot provide assistance with the installation or use of the Services.
  3. As between Shopify and ahoy! only, ahoy! is solely responsible for any liability which may arise from your access to or use of the Services, including: (A) the development, use, marketing or distribution of or access to the Services, including support of the Services; or (B) ahoy!’s own access, use, distribution or storage of information relating to you or your Shopify store.

Right to Review Campaigns

We may view, copy, and internally distribute Content from your Campaigns and account to create algorithms and programs (“Tools”) that help us spot problem accounts and improve the Services. We use these Tools to find Customers who violate these Terms or laws and to study data internally to make the Services smarter and create better experiences for Customers and their subscribers.

COMPLIANCE

Compliance with Our Rules

By agreeing to these Terms, you promise to follow these rules:

  1. You won’t send spam! We mean “spam” as it is defined on the Spamhaus Websites.
  2. You won’t use purchased, rented, or third-party lists of email addresses.
  3. You’ll comply with our Messaging Policy, which forms part of these Terms.

ahoy! doesn’t allow accounts with the primary purpose of promoting or inciting harm toward others or the promotion of discriminatory, hateful, or harassing Content. To this end, we may suspend or terminate your account if you send a Campaign or otherwise distribute any Content that we determine, in our sole discretion, contains either of the following:

  • A Threat of Physical Harm. This means any statement, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to threaten, advocate, or incite physical harm to or violence against others.
  • Hateful Content. This means any statement, image, photograph, advertisement, or other Content that in our sole judgment could be reasonably perceived to harm, threaten, promote the harassment of, promote the intimidation of, promote the abuse of, or promote discrimination against others based solely on race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, disease, or immigration status.

We also may suspend or terminate your account if we determine, in our sole discretion, that you are either:

  • an organization that has publicly stated or acknowledged that its goals, objectives, positions, or founding tenets include statements or principles that could be reasonably perceived to advocate, encourage, or sponsor Hateful Content or A Threat of Physical Harm;
  • a person that has publicly made a comment or statement, or otherwise publicly made known a position, including by membership in an organization as discussed above, that could be reasonably perceived as Hateful Content or A Threat of Physical Harm; or
  • a person or organization that has acted in such a way as could be reasonably perceived to support, condone, encourage, or represent Hateful Content or A Threat of Physical Harm.

If you violate any of these rules, then we may suspend or terminate your account.

Compliance with Laws

You represent and warrant that your use of the Services will comply with all applicable laws and regulations. You’re responsible for determining whether the Services is suitable for you to use in light of your obligations under any regulations like HIPAA, GLB, EU data privacy laws (including the General Data Protection Regulation) (collectively, “EU Data Privacy Laws”), United States export control laws and regulations and economic sanctions laws and regulations (“U.S. Export Control Laws and Regulations”), or other applicable laws. If you’re subject to regulations (like HIPAA) and you use the Services, then we won’t be liable if the Services doesn’t meet those requirements. You may not use the Services for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, Children’s Online Privacy Protection Act, or other laws that apply to commerce.

If you collect any personal information pertaining to a minor and store such information within your ahoy! account, you represent and warrant that you have obtained valid consent from the minor according to the applicable laws of the jurisdiction in which the minor lives, or that you have otherwise obtained the required parental or guardian consent according to the applicable laws of the jurisdiction in which the minor lives.

If you are located in the European Economic Area, the United Kingdom, or Switzerland (collectively, the “EEA”) and/or distribute Campaigns or other Content through the Services to anyone located in the EEA (each such Subscriber an “EEA Subscriber”) in uploading Subscribers, sending Campaigns via the Services, and/or otherwise collecting information as a result of creating or sending Campaigns, for example, analytics such as frequencies or rates, as a result of those Emails, you represent and warrant to ahoy! that you:

(a) will clearly describe to such Subscribers in writing how you plan to use any data collected, including for your use of the Services;

(b) will get and maintain all necessary permissions and valid consents required to lawfully transfer data to ahoy! and to enable such data to be lawfully collected, processed, and shared by ahoy! for the purposes of providing the Services or as otherwise directed by you.

(c) will clearly post, maintain, and abide by a publicly accessible privacy notice on the digital properties from which the underlying data is collected that satisfies the requirements of applicable data protection laws, describes your use of the Services, and includes a link to ahoy!’s Privacy Policy.

(d) will comply with all regulations, as well as data protection, electronic communication, and privacy laws that apply to the countries where you are sending Email to and from;

(e) have collected, stored, used, and transferred all data relating to any individual in compliance with all applicable data protection laws and regulations;

(f) will comply with all laws and regulations applicable to the Campaigns sent through the Services, including those relating to (a) acquiring consents (where required) to lawfully send Campaigns, (b) the Content of Campaigns, and (c) your Campaign deployment practices.

(g) will provide and obtain all notices and obtain all necessary consents required by applicable data protection laws to enable ahoy! to deploy cookies and similar tracking technologies (like web beacons or pixels) lawfully on and collect data from the devices of subscribers and end users of the Services in accordance with and as described in the Cookie Policy.

(h) will sign and return the ahoy! Data Protection Addendum, which sets out your and ahoy!’s obligations with respect to data protections and security when processing personal information. Once signed, the Data Processing Addendum will form part of and be incorporated into the Agreement.

In addition, if you are an EEA Customer, you acknowledge and agree that we have your prior written authorization to respond, at our discretion, to any data subject access requests we receive from your subscribers made under EU Data Privacy Laws, or, alternatively, we may direct any such subscribers to you so that you can respond to the request accordingly.

You agree to indemnify and hold us harmless from any losses, including all legal fees and expenses, that result from your breach of this Section.

Export Compliance

The Services, other technology ahoy! makes available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Export laws are set up by the government to keep certain goods and services from reaching other countries, usually because of security concerns or trade agreements. None of the Software may be downloaded or otherwise exported or re-exported in violation of U.S. Export Control Laws and Regulations and any other applicable export laws and regulations (collectively, “Export Control Laws”).

Therefore, you agree that you won’t, directly or indirectly through a third party, allow the Software or your Campaigns to be accessed or generated from within, or distributed or sent to, any prohibited or embargoed country as mentioned in any Export Control Laws. Each party represents, warrants and covenants that: (a) it is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) it is not a national of, or a company registered in, any Prohibited Jurisdiction; (c) it shall not permit Users to access or use the Services or Customer Data in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (e) it shall comply with all Applicable Laws regarding the transmission of technical data exported from the United States and the country in which you and any of your Users are located.

It’s important to note that this Section isn’t meant to provide a comprehensive summary of the Export Control Laws that govern ahoy!, the Services, or the Software. You’re downloading and using the Software at your own risk, and it’s your responsibility to consult with a legal advisor to make sure your use of the Services and the Software complies with applicable laws.

LIMITATION OF LIABILITY

Limitation of Liability

To the maximum extent permitted by law, you assume full responsibility for any loss that results from your use of the Websites and the Services, including any downloads from the Websites. We and our Team won’t be liable for any lost profits or revenue or any indirect, punitive, incidental, special, cover, or consequential damages under any circumstances, even if they’re based on negligence, action is in contract or tort and regardless of the theory of liability, or we’ve been advised of the possibility of those damages.

In any calendar month, our total liability to you arising under, or in connection with, the Agreement—whether in contract, tort (including negligence), breach of statutory duty, or otherwise—will be no more than what you paid us for the Services the preceding month.

In addition, for the avoidance of doubt, in no instance will we or our Team be liable for any losses or damages you suffer if you use the Services in violation of our Messaging Policy, regardless of whether we terminate or suspend your account due to such violation.

Each party acknowledges and agrees that the essential purpose of this section is to allocate the risks under the agreement between the parties and limit potential liability given the subscription charges, which would have been substantially higher if ahoy! were to assume any further liability other than as set forth herein. ahoy! has relied on these limitations in determining whether to provide you the right to access and use the Services at the charges agreed to by the parties.

REPRESENTATIONS; WARRANTIES; EXCLUSIVE REMEDIES; DISCLAIMER

No Warranties

To the maximum extent permitted by law, we provide the material on the Websites and the Services as is. That means we don’t provide warranties of any kind, either express or implied, including but not limited to warranties of merchantability and fitness for a particular purpose. ahoy! does not warrant or guarantee inbox placement rate because of the great number of conditions, practices, and reputational issues outside ahoy!’s control including, for example, the possibility that recipients may, at any time, be using hardware or software that is no longer supported pursuant to the manufacturer’s end-of-life policy. Since people use ahoy! for a variety of reasons, we can’t guarantee that it will meet your specific needs.

Disclaimers

Any use of the Services is entirely at your own risk. We and our Team aren’t responsible for the behavior of any third parties, linked Websites, or other Customers.

INDEMNITY

Indemnity is an agreement to compensate someone for a loss. You agree to indemnify and hold us and our Team harmless from any losses, including legal fees and expenses that directly or indirectly result from any claims you make that aren’t allowed under these Terms due to a “Limitation of Liability” or other provision. You also agree to indemnify and hold us harmless from any losses, including legal fees and expenses, that directly or indirectly result from (a) your Content, (b) your use of the Services, (c) your violation of any laws or regulations, (d) third-party claims that you or someone using your password did something that, if true, would violate any of these Terms, (e) any misrepresentations made by you, or (f) a breach of any representations or warranties you’ve made to us.

Legal Fees

If we file an action against you claiming you breached these Terms and we prevail, we’re entitled to recover all reasonable legal fees, expenses, and any damages or other relief we may be awarded.

Injunctive Relief

If you violate these Terms, then we may seek injunctive relief (meaning we may request a court order to stop you) or other equitable relief.

Subpoena Fees

If we have to provide information in response to a subpoena, court order, or other legal, governmental, or regulatory inquiry related to your account, then we may charge you for our costs. These fees may include attorney and employee time spent retrieving the records, preparing documents, and participating in a deposition.

Data Usage

You hereby grant to ahoy! and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, copy, modify, distribute, create derivative works of and otherwise use anonymous usage data derived from your and Users’ use of the Services (“Usage Data”), and to aggregate or compile your Data with other data, including the customer data of other ahoy! customers so long as such aggregation, compilation or Usage Data does not include any personal data or any data that could reasonably identify you, User, or Subscriber, solely for its own business purposes such as operational support and planning, product innovation, and sales and marketing of ahoy!’s services, and to provide consultative and analytical information.

Feedback

Providing any suggestions, enhancement requests, recommendations, corrections, or other feedback (collectively, “Feedback”) is strictly voluntary. You hereby grant to ahoy! and its Affiliates a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free license to use and incorporate any Feedback you provide to ahoy!, orally or in writing, into the Services.

Backups

You will maintain an adequate backup of all Customer Data. ahoy! will not be responsible or liable for any failure to store or backup any Customer Data.

Security Breach

Unless, and to the extent, notification is delayed by the actions or demands of a law enforcement agency or applicable law, ahoy! will report to you the unauthorized acquisition, access, use, disclosure or destruction of Customer Data that may affect you or your Subscribers (a “ Security Breach”) promptly following determination, in our discretion, that a Security Breach occurred. The report will be made to your email address on file for the Account.

ahoy! will provide a description of what happened and will take reasonable corrective measures to prevent future Security Breaches. You are solely responsible for determining your own obligations to notify impacted individuals, for providing such notice, and for determining if regulatory bodies or enforcement agencies applicable to you or your Content need to be notified of a Security Breach.

SUSPENSION; TERMINATION.

Maintenance and Downtime

ahoy! may, without any liability to you, suspend access to the Services at any time: (a) to perform scheduled or unscheduled maintenance, modifications, or upgrades; (b) due to hardware failures, power outages, or failures of third-party providers; (c) to mitigate or prevent the effects of any threat or attack to the Services or any other network or systems on which the Services relies; (d) as necessary in our sole discretion because the Services may violate a law or regulation, or as might be required for other legal or regulatory reasons; or (e) there is another event for which we reasonably believes the suspension of the Services is necessary to protect the ahoy! network or our other customers (each, a “Service Suspension”). ahoy! will attempt to notify you in advance of any scheduled Service Suspension but ahoy! will have no liability for any damages, losses (including loss of data or profits), or any other consequences incurred as a result of a Service Suspension or the failure to provide notice thereof.

Account Suspension

ahoy! may immediately suspend the Account, in whole or in part, without prior notice, for any reason and/or time that is reasonable under the circumstances including, for example, your failure to timely pay Fees or a suspected breach of these Terms of Use (an “Account Suspension”). During each such Account Suspension: (a) your, and all Users’, access to the Account and the Services will be suspended; (b) your obligations pursuant to the Agreement, including the obligation to pay Fees, will continue to accrue; and (c) unless ahoy! deems the Account and/or any of Customer Data to be potentially harmful in any way or potentially in violation of any Applicable Law, ahoy! will maintain the Account and not take action to delete or remove any or Customer Data stored on or within the Services.

Consequences of Termination or Expiration

Upon the effective date of termination or expiration of the Agreement: (a) all rights, licenses, and subscriptions granted to Customer will immediately terminate; (b) Customer and all Users will immediately cease all use of, and access to, the Account, User IDs, and the Services; (c) Customer will immediately either return to ahoy! or, in ahoy!’s discretion, destroy all ahoy! Data, (d) ahoy! will delete any Customer Confidential Information or Customer Data stored by the Services or by ahoy! within forty-five (45) days after the effective date of expiration or termination, or as required by Applicable Law. This Section notwithstanding, upon termination or expiration of this Agreement, ahoy! may retain Customer Data to comply with Applicable Law or as necessary to prosecute or defend any legal claim (in which case ahoy! may retain Customer Data for a reasonable time pending resolution of such obligation or issue).

Survival

Even if this Agreement is terminated, the following sections will continue to apply: DATA, COMPLIANCE, LIMITATION OF LIABILITY, REPRESENTATIONS; WARRANTIES; EXCLUSIVE REMEDIES; DISCLAIMERS, INDEMNITY, Severability, and Entire Agreement.

GENERAL PROVISIONS

Notices

Any notice to you will be effective when we send it to the last email or physical address you gave us or when posted on our Websites. It is your responsibility to keep all email addresses associated with the Account current. Any notice to us will be effective when delivered to us along with a copy to our legal counsel: Attn: Legal, 112 Krog Street NE Suite 22, Atlanta, GA 30307, USA, or any addresses as we may later post on the Websites, with a copy to legal@ahoyemail.com.

Marketing

You agree that ahoy! may use your name and logo to identify you as a customer of ahoy! on ahoy!’s Websites, and as a part of a general list of ahoy!’s customers for use and reference in its corporate, promotional, and marketing literature.

Linked Sites

The Services and Websites may contain links to third party Websites not under ahoy!’s control. As such, ahoy! is not responsible or liable for the content on or the policies regarding use and privacy of any such Websites. If you access any such Websites, you do so at your own risk.

Force Majeure

We won’t be held liable for any delays or failure in performance of any part of the Services, from any cause beyond our control. This includes, but is not limited to, acts of god, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers, or third-party internet service providers.

Assignment

You may not assign any of your rights or obligations under this agreement to anyone else. ahoy! may at any time assign, transfer, charge, subcontract, or deal in any other manner with any or all of its rights or obligations under this Agreement.

Governing Law; Jurisdiction; Disputes

The State of Georgia’s laws, except for conflict of laws rules, will apply to any dispute related to these Terms or the Services. Any dispute related to the Terms, the Privacy Policy, or the Services themselves will be decided by the state and federal courts in Fulton County, Georgia, and each party will be subject to the jurisdiction of those courts.

Copyright Infringement

ahoy! respects the intellectual property of others, and requires that our customers do the same. If you think anyone has posted material that violates any protected marks or copyrights, then you can notify us at the address provided in our Copyright Policy.

Federal Government End Use Provisions

This Section applies only if the Customer is the United States federal government or one of its agencies. ahoy! provides the Services, including related software and technology, for federal government end use solely in accordance with the following: The Software and Websites, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users:

  1. only as Commercial Items,
  2. with the same rights as all other end users, and
  3. according to the Terms.

Published and unpublished rights are reserved under the copyright laws of the United States. The manufacturer is Ahoy Technologies Inc, 112 Krog Street NE, Suite 22, Atlanta, Georgia 30307.

Relationship of the Parties; Non-exclusivity

The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties. Nothing in the Agreement will be construed to prevent ahoy! from marketing, licensing, selling, or otherwise providing Services or any aspects ahoy!’s technology or services to any third party. Nothing in the Agreement will be construed to prevent the Customer from obtaining services similar to the Services from a third party.

Third-Party Beneficiaries

There are no third-party beneficiaries under the Agreement.

Waiver and Amendments

Amendments or changes to the Agreement won’t be effective until we post revised Terms on the Websites. No waiver of any term or condition of the Agreement will be construed as a waiver of any other term or condition. Waiver of any default under these Terms of Use will not be construed as a waiver of any other default. There will be no waiver even if there is a delay in exercising or a partial exercising of any right or remedy under these Terms of Use.

No Changes in Terms at Request of Customer

Because we have so many Customers, we can’t change these Terms for any one Customer or group.

Severability

If any provision or section of these Terms of Use is determined by a court of competent jurisdiction to be contrary to law or unenforceable, then it will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions of this Agreement will remain in full force and effect.

Headings

The section headings appearing in these Terms of Use are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph, or in any way affect such agreements.

Bandwidth Abuse/Throttling

You may only use our bandwidth for your ahoy! Campaigns. We provide image and data hosting only for your ahoy! Campaigns, so you may not host images on our servers for anything else (like a Websites). We may throttle your sending or connection through our API at our discretion.

Reporting Abuse

If you think anyone is violating any of these Terms, please notify us immediately. If you received spam you think came from an ahoy! user, please report it to our team. (Every email Campaign sent through the Services has an embedded campaign tracking ID in the email header, making it easy to report suspected spam.) If you think anyone has posted material that violates any protected marks or copyrights, then you can notify us at the address provided in our Copyright Policy.

Further Actions

You’ll provide all documents and take any actions necessary to meet your obligations under these Terms.

Entire Agreement

The Agreement and all expressly referenced documents make up the entire agreement between us in relation to its subject matter and supercede all prior agreements, representations, and understandings, including, without limitation, any quotations or proposals submitted by ahoy!.

 

V1.0 April 29, 2019