THIS COPY IS PROVIDED AS A COURTESY ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE.
Terms of Service
Last Updated: October 20, 2023
These Terms of Service (“Terms”) apply to your access to and use of the websites, applications and other products and services, including email services, trainings, events, marketing services, review and message boards and various other message communication applications (collectively, our “Services”) provided by ActiveCampaign, LLC. (“ActiveCampaign”, “we”, or “us”). By clicking to indicate your acceptance of these Terms, or otherwise accessing or using the Services, you agree to these Terms, and to use our Services in accordance with our Acceptable Use Policy (https://www.activecampaign.com/legal/acceptable-use-policy), which is incorporated by reference into these Terms. If you do not agree to these Terms, including the mandatory arbitration provision and class action waiver in Section 19, do not access or use our Services.
In addition to these Terms, we may ask you to accept additional terms that apply to specific features, products or services. To the extent any additional terms conflict with these Terms, the additional terms govern with respect to your access to or use of the applicable feature, product or service.
If you have any questions about these Terms or our Services, please contact us at firstname.lastname@example.org.
1) Eligibility and Authority
You must be at least 18 years of age or older to access or use our Services. If you are accessing or using our Services on behalf of another person or entity, you represent that you are authorized to accept these Terms on that person or entity’s behalf and that the person or entity agrees to be responsible to us if you or the other person or entity violates these Terms.
2) Accounts; Account Security; Electronic Communications
You will need to register for an account to access some or all of our Services. If you register for an account, you must provide accurate account information and promptly update this information if it changes. You also must maintain the security of your account, not share your account credentials, and promptly notify us if you discover or suspect that someone has accessed your account without your permission.
By creating an ActiveCampaign account, you consent to receive electronic communications from ActiveCampaign (e.g., via email or by posting notices on our Services). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
4) Our Services; License.
Our Services may allow you and other users to create, post, store and share marketing, communications, or other content, including, but not limited to, email, text or SMS messages, photos, videos, software and other materials, and review or message boards (collectively, “Marketing Content“). As between you and ActiveCampaign, you are fully and solely responsible for the creation and substance of the Marketing Content notwithstanding any comments, suggestions, or advice we may provide. You understand and agree that our Services are “interactive computer services” as that term is used in 47 U.S.C. § 230 and that ActiveCampaign is entitled to all rights and privileges attendant thereto. Except for the license you grant below, you retain all rights in and to your Marketing Content, as between you and ActiveCampaign. You grant ActiveCampaign a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use, reproduce, adapt, publish, translate, distribute, and display your Marketing Content to the recipients or audience designated by you or otherwise in accordance with the settings you specify in the Services. As a part of the Services, we may view, copy, and internally use Marketing Content to help us train and improve the Services, including their functionality and effectiveness for you and your campaigns, as well as to assist us in detecting issues. You may not create, post, store or share any Marketing Content that violates these Terms, including our Acceptable Use Policy (https://www.activecampaign.com/legal/acceptable-use-policy), or for which you do not have all the rights necessary to grant us the license described above. When using the Services, you may import data, including personally identifiable information, regarding your Contacts (as defined below) (“Contact Data”). We view and use Contact Data only to provide Services to you, at your direction and, as part of the Services, to train, detect issues with our Services, and to ensure their proper functioning. We do not disclose Contact Data to third parties, except as follows:
- We may share Contact Data with our third party service providers to provide our Services or administer the site.
- If any portion of ActiveCampaign is sold, Contact Data may be part of the business assets we transfer. Contact Data also may be disclosed if ActiveCampaign is considering or completes the financing, securitization, insuring, sale, assignment or other transfer of all or part of the company.
- We may disclose Contact Data as we reasonably believe is necessary to comply with any judicial or governmental subpoenas, warrants or orders.
- We reserve the right to use, disclose and share your information and Contact Data to investigate, prevent or take action with respect to any potential or actual fraud, illegal activities, circumstances which threaten the physical safety of any person, violations of these Terms of Service or as otherwise required by law.
- We may receive requests directly from individuals, including your Contacts, not to receive emails from our Services. To comply with international data protection laws and to respect their requests, we place those individuals on a communications exclusion list (“Global Exclusion List”) so that they may no longer receive communications from our Services. If a requesting individual is a Contact in your database, we will use commercially reasonable efforts to notify you of such request before placing that Contact on our Global Exclusion List.
5) Prohibited Conduct
5.1) Prohibited Activities on the Services.
You will not violate any applicable law, contract, intellectual property or other third-party right or commit a tort, and you are solely responsible for your conduct while accessing or using our Services. When you access or use our Services, you will not:
- Violate our Acceptable Use Policy (https://www.activecampaign.com/legal/acceptable-use-policy);
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Impersonate any person or entity, including without limitation, any ActiveCampaign official, employee, or falsely state or otherwise misrepresent your affiliation with such a person or entity;
- Use or attempt to use another user’s account without authorization from that user and ActiveCampaign;
- Access the Services by any means other than through the standard industry-accepted or ActiveCampaign-approved application program interfaces;
- Use our Services in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying our Services or that could damage, disable, overburden or impair the functioning of our Services in any manner;
- Delete or revise any material, including Marketing Content, posted by another person or entity;
- Delete or modify any author attributions, legal notices or proprietary designations or labels that you upload to any communication feature;
- Register, subscribe, attempt to register or subscribe, unsubscribe or attempt to unsubscribe, any party for any ActiveCampaign product or Service if you are not expressly authorized by such party to do so;
- Reverse engineer any aspect of our Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of our Services that you are not authorized to access;
- Develop or use any third-party applications that interact with our Services without our prior written consent, including any scripts designed to scrape or extract data from our Services;
- Bypass or ignore instructions contained in our robots.txt file that controls automated access to portions of our Services;
- Export or attempt to export certain data points, including but not limited to EGEO and ERJA data, that cannot be exported from the Services; or
- Use our Services for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.
5.2) Compliance with Laws
You represent and warrant that your access to and use of the Services will comply with all applicable laws, rules and regulations, including but not limited to Export Control and Sanctions Laws (defined below) and those that relate to privacy and data protection and to the sending of electronic communications. You also represent and warrant (i) that your access to and use of the Services will comply with all applicable U.S. securities laws, rules, or regulations, including the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Company Act of 1940, and the Investment Advisers Act of 1940, and (ii) that you have not received notice of any investigation or inquiry, or any subpoena or a document request relating to an investigation or inquiry, from any securities regulator. Moreover, you agree to notify us in the event that you receive notice of any investigation, inquiry, or any subpoena or a document request relating thereto, from any securities regulator. You further represent and warrant that you have a lawful basis for processing and sending Marketing Content to your customers, business contacts or followers who consent to receiving marketing messages from you or on your behalf (“Contacts“), whether through legally appropriate consents or otherwise. You also represent and warrant that the Marketing Content you process and send through the Services relates to the provision of goods, services, or other information that are, in each instance, provided in accordance with all applicable laws, rules, and regulations. You will not provide ActiveCampaign or upload to the Services, or take any actions with respect to, any Marketing Content or Contact Data for which you do not have a lawful basis for processing, permissions or consents in accordance with applicable data protection laws. You (and not ActiveCampaign) are responsible for ensuring that you meet all notice and consent obligations for sending communications to individuals in the jurisdictions where they reside. For more information and tips, please see our Consent page (https://www.activecampaign.com/legal/consent-policy/). While our Services allow you to manage and access consents and other Contact Data, you acknowledge and agree that you, and not ActiveCampaign, have sole responsibility for maintaining all records relating thereto. You are solely responsible for determining whether our Services are suitable for use in light of any laws and regulations that govern your entity, industry, or relationship with your own Contacts, including but not limited to consumer protection, privacy, advertising, intellectual property or other laws. You may not use our Services for any unlawful or discriminatory activities, including but not limited to acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, Food, Drug and Cosmetic Act, or other laws that apply to commerce or the provision of industry-specific services. You further represent and warrant that your use of the Services, including the information that you upload to or make available through the Services will not cause ActiveCampaign to violate any applicable laws, rules and regulations, including but not limited to those that relate to privacy and data protection and to the sending of electronic communications. We may suspend, restrict or terminate your access to or use of the Services if we suspect, in our sole discretion, that your Marketing Content violates our Acceptable Use Policy or any applicable law, rule or regulation, or that it relates to goods, services or information that are offered in violation of applicable law, or that it includes spam or otherwise duplicative or unsolicited messages.
5.3) AI Features
If you use our ActiveCampaign AI feature and/or any other artificial intelligence powered content generation feature of our Services (collectively, the “AI Features”), this Section 5.3 applies to you. The AI Features may allow you to submit text inputs (“Prompts”) and generate Marketing Content based on your Prompts. You must use the AI Features and the generated Marketing Content only (i) in a lawful manner and in compliance with all applicable laws; (ii) in accordance with these Terms and other ActiveCampaign documentation directed to the AI Features; and (iii) in a manner that does not infringe or attempt to infringe, misappropriate or otherwise violate any of our rights or those of any third party (for clarity, “manner” includes, without limitation, the method, purpose and/or means of causing or attempting to cause the AI Features to generate output). Due to the nature of the AI Features, generated Marketing Content may not be unique across users and the AI Features may generate the same or similar Marketing Content for other users. In addition, other users may ask similar questions and receive the same, similar or different responses.
ActiveCampaign does not claim ownership of the Prompts or Marketing Content that you generate from the AI Features, and you are responsible for such materials and warrant that you own or otherwise control all the rights necessary for you to provide, post, upload, input or submit such materials. The AI Features are not error-free, may not work as expected and may generate incorrect information. You should not rely on the AI Features and you should not use the AI Features for advice of any kind. Your use of the AI Features is at your own risk.
Without limiting Section 13 in any way, but for the sake of clarity, ActiveCampaign does not make any warranty or representation of any kind that any output generated by the AI Features does not infringe the rights of any third party (including, but not limited to, copyright, trademark, rights of privacy and publicity, and defamation).
5.4) Usage Limits
The usage limits that apply to you will be specified in the billing page within your account console. When you register for a paid subscription, you will select the maximum number of Contacts to which you are permitted to send Marketing Content through your account (“Contact Limit”). Your monthly email send limit (if applicable) will be based on the Contact Limit and your subscription plan, as may be further described on our Pricing page. If you reach your monthly email send limit, you will not be able to send any more email messages to your Contacts, including any email messages scheduled for sending at a future date, until the start of the next calendar month. You may increase your monthly email send limit by upgrading your subscription plan or purchasing increases to your Contact Limit or monthly email send limit as additional product enhancements.
5.5) Reporting Abuse
If you think anyone using the Services is violating any of these Terms, please notify us immediately by emailing email@example.com.
6) Terms of Sale
When you sign up for our Services, you agree to a recurring subscription contract with ActiveCampaign on a monthly, quarterly, annual, or other temporal basis that you select when signing up for the Services. WHEN YOU REGISTER FOR A SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) ACTIVECAMPAIGN (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A MONTHLY, QUARTERLY, ANNUAL, OR OTHER BASIS AS APPLICABLE FOR YOUR SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, AND (B) YOUR SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SERVICES IN ACCORDANCE WITH THESE TERMS. For more information about pricing and subscription plans, please visit our Pricing page.
You may cancel your subscription at any time by logging into your account and following the instructions on your account dashboard for cancellation or by contacting us at firstname.lastname@example.org. Such cancellation notice must be sent by the designated account owner or an authorized signatory. Inactivity does not constitute automatic cancellation, so unless you cancel your account in accordance with this section, you will continue to be charged for subscription to the Services. All cancellation requests will take effect at the end of then-current subscription period in which the cancellation request is made, and you will be responsible for all fees and any applicable taxes and other charges rendered up through the cancellation date.
In the event you cancel your subscription, please note that we may still send you promotional communications about ActiveCampaign, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
6.3) One-Time Purchases
Some features of our Services, such as templates, may be offered as a standalone, non-subscription product. We will charge your payment method at the time of such purchases as a one-time purchase.
6.4) Free Trials and Beta Features
From time to time, to the extent legally permitted, we may offer free trials of certain subscriptions for specified period of time without payment. If we offer you a free trial, the specific terms of your free trial will be provided in the marketing materials describing the particular trial or at registration. We reserve the right to modify or terminate free trials at any time, without notice and in our sole discretion.
In addition, from time to time, we may add to our Services new or test features or functionality in an unfinished or beta form or as a preview or an early access offering (collectively, “Beta Features“). Beta Features will be considered part of the Services and all provisions of these Terms will apply to the Beta Features, and you agree to be bound by any additional terms applicable to the Beta Features as provided by ActiveCampaign. Beta Features are for evaluation and feedback purposes only in order to allow ActiveCampaign to create improvements for the benefit of you and others, and we may monitor how you use the Beta Features and use that information to improve the Beta Features and other Services. Beta Features are optional and, if you elect to use a Beta Feature, you do so at your own risk. You acknowledge that Beta Features may be untested, inoperable or incomplete, and may contain bugs, errors or other problems. We advise that you do not rely on the Beta Features for any purpose whatsoever. ActiveCampaign provides no warranties, indemnities or support for any of the Beta Features, and ActiveCampaign has no obligation to correct or repair any Beta Features. We reserve the right to fully or partially discontinue Beta Features at any time and for any reason, temporarily or permanently, with or without notice. ActiveCampaign will have no liability to you or any third party for any harm or damage arising out of or in connection with any of the Beta Features.
6.5) Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method. In addition, you authorize us (or our third party payment processor) to charge your payment method for the total amount of your subscription fees (and applicable taxes and other charges). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your account may be suspended until your payment is processed. You must resolve any problem we encounter in order to proceed.
You acknowledge that the amount billed may vary due to promotional offers, changes to your subscription or changes in applicable taxes or other charges, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.
If you are in Brazil, the following applies to you: in order to allow the remittance of funds resulting from payment of goods and/or services acquired from ActiveCampaign, you acknowledge and accept PPRO Brasil Ltda. (“PPRO”) as a payment service provider that enables the acquisition of goods and services, in Brazil or abroad, by means of a digital payment solution, integrated to ActiveCampaign’s e-commerce platform, through a foreign exchange transaction carried out by an institution authorized to operate in the foreign exchange market, foreseen in Resolution BCB No. 277/2022, as amended. Once the registration in ActiveCampaign’s website is completed, you will be able to choose among the local payment methods that PPRO makes available. You acknowledge and declare that, before making the purchase, you knew of and had access to the information about the goods and services offered, in addition to the specific conditions related to your rights, according to the payment instrument used at the time of purchase, fully and unlimitedly exempting unlimitedly PPRO from any liability in relation to the purchase carried out on ActiveCampaign’s website. You also declare you are aware and agree to only provide correct and truthful information when making the purchase, fully and unlimitedly exempting PPRO from any responsibility for the data provided.
6.6) Contact Data Retrieval
Once you mark Contact Data for deletion within our Services, it will be moved to a queue for deletion where it may be temporarily available for you to restore from ActiveCampaign’s most recent available data backup for a period of thirty (30) days (the “Restore Period“). You acknowledge and agree that, once the Restore Period has expired, ActiveCampaign cannot, and has no obligation to, restore such Contact Data. You further acknowledge and agree that we have no liability related to the failure to successfully restore any Contact Data to a usable state. Upon cancellation or termination, you will not have access to or be able to restore any Contact Data.
7) Limited License; Copyright and Trademark
Our Services and the text, graphics, images, photographs, videos, illustrations, trademarks, trade names, service marks, logos, slogans and other content contained therein (collectively, the “ActiveCampaign Content”) are owned by or licensed to ActiveCampaign and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, ActiveCampaign and our licensors reserve all rights in and to our Services and the ActiveCampaign Content. You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services and ActiveCampaign Content for (i) your own personal use or (ii) if you are a business or organization, to communicate about your business or organization with your Contacts. However, such license is subject to these Terms and does not include any right to (a) sell, resell or commercially use our Services or ActiveCampaign Content; (b) copy, reproduce, distribute, publicly perform or publicly display ActiveCampaign Content, except as expressly permitted by us or our licensors; (c) modify the ActiveCampaign Content, remove any proprietary rights notices or markings, or otherwise make any derivative uses of our Services or ActiveCampaign Content; (d) use any data mining, robots or similar data gathering or extraction methods; and (e) use our Services or ActiveCampaign Content other than for their intended purposes. Any use of our Services or ActiveCampaign Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
8) Third Party Content and Services
We may display content, advertisements and promotions from third parties through the Services (“Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and that ActiveCampaign has no responsibility or liability for any Third Party Content. If ActiveCampaign requires you to accept additional terms, conditions, or obligations in connection with your use of third party services or third party integrations (“Third Party Terms“), we will provide you advanced notice and obtain your authorization or acceptance of such Third Party Terms, which shall include your continued use of such services or integrations.
We may also provide you with access to certain services, features or functionality offered by a third party in connection with the Services. Use of any such services, features or functionality will be subject to separate terms of service between you and such third party, and not these Terms. The third party provider, and not ActiveCampaign, will be solely responsible for providing you with such services, features or functionality.
Any questions, comments, suggestions, ideas, original or creative materials or other information you submit about ActiveCampaign or our products or Services (collectively, “Feedback“), is non-confidential and will become the sole property of ActiveCampaign. We will own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and will be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You agree that we may, but have no obligation, to identify you as a customer of ActiveCampaign and that ActiveCampaign may, in its sole discretion, refer to you by name, trade name, trademark, logo and other proprietary marks or words, and may describe your business, in our marketing or publicity materials, on our website, and in press releases or other public statements. You hereby grant ActiveCampaign a nonexclusive, royalty-free, worldwide, fully-paid, and sub-licensable license to use your name and any of your trade names, trademarks, logos and other proprietary marks or words pursuant to this Section 10.
11) Copyright Complaints
We have a policy of limiting access to our Services and terminating the accounts of users who infringe the intellectual property rights of others. If you believe that anything on our Services infringes any copyright that you own or control, you may notify ActiveCampaign’s Designated Agent as follows:
Designated Agent: Jason VandeBoom
Address: 1 North Dearborn Street, 5th Floor, Chicago, IL 60602
Telephone Number: (773) 360-2270
E-Mail Address: email@example.com
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. Also, please note that if you knowingly misrepresent that any activity or material on our Services is infringing, you may be liable to ActiveCampaign for certain costs and damages.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless ActiveCampaign, our parent, subsidiaries and affiliates, and each of our respective officers, directors, agents, partners and employees (individually and collectively, the “ActiveCampaign Parties”) from and against any loss, liability, claim, demand, damages, expenses or costs (“Claims“) arising out of or related to (a) your access to or use of our Services; (b) your Marketing Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation or infringement of any rights of a third party (including intellectual property rights or privacy rights) or (e) your conduct in connection with our Services. You agree to promptly notify ActiveCampaign Parties of any third party Claims, cooperate with ActiveCampaign Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees). You also agree that ActiveCampaign Parties will have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and ActiveCampaign or the other ActiveCampaign Parties.
WE DO NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY MARKETING CONTENT, THIRD-PARTY CONTENT OR THIRD-PARTY SERVICES MADE AVAILABLE ON OR LINKED TO BY OUR SERVICES. YOUR USE OF OUR SERVICES IS AT YOUR SOLE RISK. OUR SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, ACTIVECAMPAIGN DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. WHILE ACTIVECAMPAIGN ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF OUR SERVICES SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES. AS BETWEEN YOU AND ACTIVECAMPAIGN, YOU WILL BE SOLELY RESPONSIBLE FOR RESPONDING TO AND HONORING ALL REQUESTS RELATING TO THE RIGHTS OF YOUR CONTACTS AND THEIR PERSONAL DATA PURSUANT TO AND IN ACCORDANCE WITH APPLICABLE DATA PROTECTION LAWS.
14) Limitation of Liability
ACTIVECAMPAIGN AND THE OTHER ACTIVECAMPAIGN PARTIES WILL NOT BE LIABLE TO YOU UNDER ANY THEORY OF LIABILITY—WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, WARRANTY, STRICT LIABILITY OR OTHERWISE—FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES OR LOST PROFITS, EVEN IF ACTIVECAMPAIGN OR THE OTHER ACTIVECAMPAIGN PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL LIABILITY OF ACTIVECAMPAIGN AND THE OTHER ACTIVECAMPAIGN PARTIES, FOR ANY CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OR OUR SERVICES, REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO ACCESS OR USE OUR SERVICES. THE LIMITATIONS SET FORTH IN THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD OR INTENTIONAL MISCONDUCT OF ACTIVECAMPAIGN OR THE OTHER ACTIVECAMPAIGN PARTIES OR FOR ANY OTHER MATTERS IN WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
To the fullest extent permitted by applicable law, you release ActiveCampaign and the other ActiveCampaign Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
16) Transfer and Processing Data
By accessing or using our Services, you consent to the processing, transfer and storage of information about you in and to the United States and other countries, where you may not have the same rights and protections as you do under local law.
17) Export Control, Sanctions Compliance and Anti-Corruption Compliance
17.1) Export Control and Sanctions Compliance
The receipt and use of our Services may be subject to export control and economic sanctions laws of the United States and other applicable jurisdictions (“Export Control and Sanctions Laws”). You agree to abide by all Export Control and Sanctions Laws as they relate to your access and use of our Services. You will not, directly or indirectly, access or use our Services if you are located in a jurisdiction where the provision of our Services is prohibited by law (a “Prohibited Jurisdiction”), including Cuba, Iran, North Korea, Syria, and the Crimea region. You also will not provide access to or allow the use of our Services by any government, entity or individual: (a) located in any Prohibited Jurisdiction; or (b) identified on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce’s Denied Persons List or Entity List, or subject to any other expert control or economic sanctions lists or programs. You represent and warrant that: (a) you are not named on or subject to any government sanctions programs or list of persons or entities prohibited from receiving U.S. exports, or engaging in transactions with any U.S. person; (b) you are not located in, or a company registered in, any Prohibited Jurisdiction; and (c) you will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you are located.
17.2) Anti-Corruption Compliance
You will comply with all applicable United States and international anti-corruption and anti-bribery laws and regulations, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and others as they relate to your access to and use of our Services. You acknowledge that you have not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value in connection with these Terms.
18) Commercial Items
If acquired by any agency of the U.S. Government, such agency acknowledges that (a) the App and Services constitute “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. §12.212 and 48 C.F.R. §227.7202, as applicable; and (b) such agency’s rights are limited to those specifically granted under these Terms.
19) Dispute Resolution; Binding Arbitration
Please read the following section carefully because it requires you to arbitrate certain disputes and claims with ActiveCampaign and limits the manner in which you can seek relief from us.
Except for small claims disputes in which you or ActiveCampaign seek to bring an individual action in small claims court located in the county of your billing address or disputes in which you or ActiveCampaign seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, you and ActiveCampaign waive your rights to a jury trial and to have any dispute arising out of or related to these Terms or our Services resolved in court. Instead, all disputes arising out of or relating to these Terms or our Services will be resolved through confidential binding arbitration held in Cook County, Illinois in accordance with the Streamlined Arbitration Rules and Procedures (“Rules“) of the Judicial Arbitration and Mediation Services (“JAMS“), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
You and ActiveCampaign agree that any dispute arising out of or related to these Terms or our Services is personal to you and ActiveCampaign and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
You and ActiveCampaign agree that these Terms affect interstate commerce and that the enforceability of this Section 19 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA“), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and ActiveCampaign agree that for any arbitration you initiate, you will pay the filing fee and ActiveCampaign will pay the remaining JAMS fees and costs. For any arbitration initiated by ActiveCampaign, ActiveCampaign will pay all JAMS fees and costs. You and ActiveCampaign agree that the state or federal courts of the State of Illinois and the United States sitting in Cook County, Illinois have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
Any claim arising out of or related to these Terms or our Services must be filed within one year after such claim arose; otherwise, the claim is permanently barred, which means that you and ActiveCampaign will not have the right to assert the claim.
You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 19 by emailing us at firstname.lastname@example.org. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 20.
20) Governing Law and Venue
These Terms and your access to and use of our Services will be governed by and construed and enforced in accordance with the laws of State of Illinois, without regard to conflict of law rules or principles (whether of Illinois or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration or cannot be heard in small claims court will be resolved in the state or federal courts of Illinois and the United States, respectively, sitting in Cook County, Illinois.
21) Changes to these Terms
We may make changes to these Terms from time to time. If we make changes, we will post the amended Terms to our Services and update the “Last Updated” date above. We may also attempt to notify you by sending an email notification to the address associated with your account or providing notice through our Services. Unless we say otherwise in our notice, the amended Terms will be effective immediately and your continued access to and use of our Services after we provide notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop accessing and using our Services.
We reserve the right, without notice and in our sole discretion, to terminate your right to access or use our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
These Terms constitute the entire agreement between you and ActiveCampaign relating to your access to and use of our Services. Any additional or different terms proposed by you in any purchase order, request for proposal or other document are hereby objected to by ActiveCampaign and shall be void. The failure of ActiveCampaign to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity. These Terms may not be assigned or transferred by you except with our prior written consent. These Terms may be executed and delivered electronically and in one or more counterparts, each of which shall, when taken together, constitute a single document.