Product Specific Terms
1.1 Email Service. This Section 1 applies to the Email Services as a standalone service or as an integrated or associated part of other products provided by us or our Affiliates. “Email Services” means each of the following, either collectively or individually, Cherub Email. As the context so requires, references to these named Services shall, in respect of equivalent services provided by us or our Affiliates to you prior to the date of this Agreement (irrespective of how any of these services are named on an applicable Order Form), be deemed to include a reference to the equivalent predecessor named service provided by us.
1.2 Messaging Policy. Customer’s access to and use of our Email Services is subject to the following requirements. We may, in our sole discretion, take any action we deem appropriate regarding Customer’s access to the Email Services, including immediate suspension or termination of Customer’s account without notice:
- Email Sending Guidelines.
- a. Use only permission-based marketing email lists (i.e., lists in which each recipient has granted permission to receive email from Customer by affirmatively opting-in).
- b. Always include a working “unsubscribe” mechanism in each marketing email that allows the recipient to opt out from Customer marketing mailing list (transactional messages that are exempt from “unsubscribe” requirements of applicable law are exempt from this requirement).
- c. Comply with all requests from recipients to be removed from Customer mailing list within ten (10) days of receipt of the request or the appropriate deadline under applicable law.
- d. Maintain, publish, and comply with a privacy policy that meets all applicable legal requirements and include in each email a link to the privacy policy applicable to that email if required by applicable law.
- e. Include a valid physical mailing address applicable to the email or a link to that information.
- f. Do not disguise the origin, or subject matter of, any email or falsify or manipulate the originating message address, subject line, header, or transmission path information for any email.
- g. Do not send to: (a) email addresses obtained from purchased or rented email lists; (b) email addresses programmatically generated or scraped from the Internet; or (c) role-based or non-specific addresses (e.g., webmaster@domain.com or info@domain.com) on a routine basis.
- h. Do not send emails that result in an unacceptable number of spam or similar complaints (even if the email themselves are not actually spam) or employ sending practices that negatively impact the Email Service or other customers of the Email Service.
- i. Do not use the Email Services to send unsolicited bulk email or otherwise considered junk email. Some examples of such emails include affiliate marketing, lead generation, penny stocks, credit repair, illegal gambling, multi-level marketing, pyramid schemes, prostitution, direct to consumer pharmaceutical sales, payday loans, and chain letters.
- Restricted Content. Customer will not submit to the Email Services or use the Email Services to collect, store, or process: (a) social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (b) Protected Health Information (as defined by HIPAA), or similar information under other comparable laws or regulations; (c) financial account numbers (including credit or debit card numbers, primary account numbers, bank account numbers, related security codes or passwords, or similar information; or (d) “special classes of data” (as defined by GDPR) of EU residents, or similar information under other comparable laws or regulations.
- Anti-harassment. Customer will not use the Email Services to: (a) store, distribute or transmit any malware or other material that Customer know, or have reasonable grounds to believe, is or may be tortious, libelous, offensive, infringing, harassing, harmful, disruptive or abusive; or (b) promote, commit, aid, or abet any behavior, which Customer knows, or has reasonable grounds to believe, is or may be tortious, libelous, offensive, infringing, harassing, harmful, disruptive or abusive.
- Compliance with Law. Customer’s use of the Email Services must comply with all applicable laws, rules, regulations, ordinances, and court orders of any kind of any jurisdiction applicable to Customer, us, and to any recipient. It is the Customer’s responsibility to be aware of and understand all applicable laws and ensure that Customer and its users of the account comply at all times with applicable law. Some examples of applicable laws include US CAN-SPAM Act, Canada Anti-Spam Law (CASL), EU General Data Protection Regulation (GDPR), member state implementations of the EU ePrivacy Directive, Australian Privacy Act and Spam Act, UK General Data Protection Regulation, and other laws relating to data protection, privacy, intellectual property, security, terrorism, corruption, child protection, and import/export laws.
1.3 Customer Data. For the Email Service, you hereby grant us a worldwide, non-exclusive, non-transferable (except pursuant to a permitted assignment under the Agreement), royalty-free, perpetual, irrevocable license to use, copy, store, modify, create derivative works of, and otherwise process certain Customer Data, specifically the email addresses of a person receiving an electronic message sent by Customer through the Email Service; provided that for each person receiving an email (each, a “Recipient”): (i) Customer is not identified as the source of such data; (ii) the email address is pseudonymized; (iii) the email address is not EEA Personal Data; (iv) the email address is not disclosed to any other customer; and (v) we do not use the email address to send any of our own emails to the Recipient. Customer has all rights, permissions, and/or consents necessary to grant us the rights in the Customer Data as provided in this Agreement.
1.4 Analytics Data. Subject to the limitations in this Section, for the Email Services, we and our Affiliates may: (a) collect, extract, compile, synthesize, analyze, attribute, store, and otherwise use data resulting from Customer’s use and operation of the Email Service (“Usage Data”) including routing data (e.g., server hostnames, server IP addresses, and timestamps), delivery data (e.g., whether, when, where, and how an Email was sent or delivered), engagement data (e.g., whether, when, where, and how an Email was opened or clicked), and message data (e.g., message type, tone, length, and presentation); and (b) aggregate or compile Usage Data with other data, including data obtained via third parties and the usage data of our other customers (“Aggregate Data”). Usage Data and/or Aggregate Data: (i) will not include any identifiers of Customer as a source of such data; and (ii) will only be used by us and our Affiliates to: (1) provide aggregate research statistics and insights (e.g., publishing average email open rates by city, benchmarking by industry vertical, and analyzing industry trends); (2) optimize delivery, engagement, and conversion of your and other customers’ email campaigns (e.g., send time optimization, recipient validation, predictive filtering based on a recipient’s propensity to engage, convert, and/or complain, and content selection optimization); and (3) for our own lawful business purposes including operational support and planning, research and development, and additional product functionality. Notwithstanding the foregoing, you should notify and obtain the necessary authorization from your end-users and comply with all information, notification, retention, access and other applicable requirements if required by applicable laws. We assume no responsibility when Customer fails to do so.
1.5 Cherub Email. If you purchase Cherub Email Services, we will provide such services in accordance with the current services description available at Cherub.email.
SMS
2.1. SMS Service. This Section applies to the use of Short Messaging Service (“SMS”) as a standalone channel or as an integrated or associated part of other products provided by us or our Affiliates (“SMS Service”).
2.2. Basic Principles. In order to promote successful transmission of legitimate SMS unhindered by filtering or other blockers, you should cooperate with us to prevent and eliminate unsolicited SMS and any spam. For this purpose, you agree to obtain the required level of consent from each recipient before you initiate any SMS, and you further agree to comply with applicable laws and communications industry and telecommunications carrier standards.
2.3. Consent and Unsolicited SMS (including SPAM). Without limiting or affecting Section 1.2 (Basic Principles), you agree to comply with consent obligations according to applicable laws, including (i) getting opt-in or another valid form of consent from each message recipient before initiating any communication to them, particularly for marketing or other non-essential communications; (ii) in case of SMS campaigns, supporting opt-out messages in the message recipient’s local language; (iii) complying with country specific obligations applicable to SMS mass marketing and bulk messaging; (iv) not contacting message recipients on do-not-call or do-not-disturb registries; (v) keeping and maintaining a record of consent for accountability purposes; and (vi) providing proof that you have obtained valid consent from the message recipient.
2.4. Responsibility for Your Customers’ Use of Services. If you provide your own end-users or clients with the ability to send SMS through us, you are responsible for the SMS activity of these users. You must ensure that any SMS activity initiated by your users complies with the Agreement and policies, and applicable laws, regulations, and industry standards, including telecommunications providers’ policies. Without limiting or affecting the foregoing, you are responsible for compliance with all obligations that apply to the use of the SMS Service based on applicable laws, which may include the jurisdiction in which the message recipient is located, the sender of the message is registered, or any other nexus that triggers the application of any domestic laws.
2.5. Prohibited Content. You should not, directly or indirectly, initiate any SMS content that is illegal, harmful, unwanted, inappropriate, objectionable, or otherwise poses a threat to the public, even if the content is permissible by law. Other prohibited uses include: (i) content that is prohibited by applicable law in the jurisdiction where the message recipient lives; (ii) hate speech, harassment, exploitative, abusive, or any communications that originate from a hate group; (iii) fraudulent, criminal, and/or misleading content; (iv) malicious content, such as malware or viruses; (v) content that violates telecommunication carrier standards; and (vi) any content that is designed to intentionally evade filters. Engaging in activities or transmitting through the Services any information that is libelous or defamatory or otherwise malicious or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age is prohibited.
2.6. Age and Geographic Restrictions. If you are sending SMS in any way related to alcohol, gambling, tobacco, firearms, or other adult content, in addition to obtaining consent from every message recipient, you must ensure that no message recipient is below the legal age of consent based on where the message recipient is located. You also must (i) ensure that the SMS content complies with all applicable laws and regulations of the jurisdiction in which the message recipient is located or applicable communications industry guidelines or standards; (ii) communicate during the message recipient’s daytime hours only unless it is urgent; and (iii) be able to provide proof that you have in place measures to ensure compliance with these restrictions.
2.7. No Evasion. You should not use our platform to circumvent our or a telecommunications provider’s spam or unsolicited SMS detection and prevention mechanisms.
2.8. Misrepresenting Your Identity (Spoofing). You will not misrepresent yourself when sending messages over our Services. Spoofing the Sender ID, or otherwise attempting to send misleading messages to end-users in respect to your true nature, is never allowed.
2.9. Engaging in Fraud. You will not participate or assist in any way in fraudulent or criminal activities, directly or indirectly. If you suspect, know, or should reasonably know or be aware of fraudulent or criminal activities you will immediately cease the use of our SMS Service and notify us. Collecting confidential information by requesting responses via messages without prior contact and/ or consent is not allowed. We do not support or accept fraudulent or criminal activities. We will make sure to investigate and take the appropriate steps to stop such behavior without undue delay, including notification of the relevant authorities.
2.10. Violation of these Product Specific Terms for SMS Service. Violations of these provisions may result in deactivation of your Services and third party liability. You agree to our right to request opt-in proof, together with other relevant information such as the general purpose of your campaign(s) and a sample message. If you fail to provide evidence of confirmation that your recipients have opted-in for receiving these messages within twenty-four (24) hours from the time of our request, we reserve the right to suspend or deactivate your account. We may also suspend your account in case of complaints from any third-party and/or recipient/end user or in any case when your behavior is reasonably believed to violate the Agreement, including these Product Specific Terms. You are and will remain solely responsible for all usage of our Services and for all risks, expenses and liabilities arising from or relating to fraudulent, criminal or illegal usage of the Services by you, your users, your customers and/or your end users, or any other person or entity directly or indirectly making use of the SMS Service.
2.11 Charging. We will charge you for each SMS that has been initiated by you and processed by our platform in accordance with the Agreement, regardless of actual receipt of such SMS by the recipient.
List Validation
3.1. List Validation Service. This Section applies to the List Validation Services as a standalone service or as an integrated or associated part of other products provided by us or our Affiliates.
3.2. Basic Principles. We will verify the email addresses as you provide them. We will not make any alterations or modifications to your data. The failure of us to enforce any provision of these Terms and Conditions shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
3.3. Disclaimer of Warranties. The Service is provided “as is” and “as available”. Neither Cherub Solutions LLC nor its owners, employees, contractors, suppliers, and licensors, make any warranty that the Service will meet your requirements, be error-free, accurate, reliable, compatible, timely or fast enough or that access thereto will be continuous and uninterrupted. You understand that you utilize the API, or otherwise obtain content or services through, this website and API at your own discretion and risk. We do not warrant that the information on the Website or the information or advice provided by our colleagues is complete, accurate, non-misleading or true. In the event If we do not receive a proper response from the recipient mail server, then we tag those email results as Unknown. Catch-all/accept-all mail servers respond OK for both valid and invalid addresses. So catch-all / accept-all domains cannot be definitively verified. The number or the level of unknown and catch-all results does not qualify for a refund of payment under any circumstances.
Connectors, Integrations and Third Party APIs
4.1 Customer acknowledges that the Services may integrate or interoperate with products and services of third parties (“Third-Party Products”), or import or export data and other content to or from Third-Party Products (collectively, “Integrations”). We may also make connectors available on our Site to allow our Services to be used in connection with Third-Party Products through APIs or other connectors (“Connectors”).
4.2 You acknowledge and agree that if you adopt, apply, install or use any Integration or Connector with our Services: (i) you must agree to, and are governed by, the terms and conditions of the third party connector in respect of your use of any third party service and to the extent required you explicitly authorize us to accept such third party’s terms on your behalf and (ii) for the sole purpose of enabling and facilitating the Connector, your information (including Customer Data) may be made available to or shared by our Services with the relevant third party service (and vice versa) and you consent to any such availability or sharing and to your data being used in accordance with this Agreement and the separate terms of conditions of the third party. For clarity, our services may use and incorporate artificial intelligence, including through use of Connectors made available from OpenAI (such as ChatGPT) or other third parties. You acknowledge and agree to such use.
4.3 Any use of any Third-Party Products, whether through a Connector or otherwise, is solely at the Customer’s own risk. We make no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Products, or any transactions completed, and any contract entered into by you or your Affiliates, with any provider of such Third-Party Products. We do not endorse or approve any Third-Party Products nor the content of any of the Third-Party Products made available via the Services. WE PROVIDE INTEGRATIONS AND CONNECTORS “AS IS” WITHOUT WARRANTY OF ANY KIND AND ONLY AS A CONVENIENCE.