8Seconds Subscription Terms of Use – Return Path

Effective Date: August 15, 2017

  1. Definitions:
    1. “8Seconds” shall mean 8Seconds BVBA.
    2. “Subscriber” shall mean Customer.
    3. “Services” shall means the subscription service Customer purchased a subscription to under the applicable Insertion Order.
  2. Service – 8Seconds will provide the Service to Subscriber from the Start Date through to the end of the Subscription Term.
  3. Subscriber obligations – Subscriber will use the application for the purposes it was designed, implement the tracking scripts within the communications vehicles to be optimized (i.e., e-mail templates) and comply with the usage guidelines provided in the 8Seconds user manual and/or in any trainings which may be provided by 8Seconds, and if Subscriber does contravene this term of usage, Subscriber holds 8Seconds harmless for any claims or damages for which it may suffer either directly or indirectly, regardless of the circumstances.
  4. Intellectual Property Rights – Title to the 8Seconds Service and software (including any documentation provided to Subscriber in connection therewith) and all related patent, trademark, copyright, trade secret, intellectual property and other ownership rights in the Services will remain exclusively with 8Seconds, even with respect to items created for Subscriber, excluding the subscriber specific contents of any reports, statistics, creative content which may have been rendered through the usage of the Service, and which will remain the property of the Subscriber after subscription termination. Subscriber will neither re-engineer the 8Seconds Service or software, nor take any other action in derogation of 8Seconds’s intellectual property rights, or misuse 8Second’s confidential information to develop a program having any functional attributes or other features equal or similar to those of the 8Seconds Service or software or to compete with 8Seconds. All of the aforementioned documentation provided to Subscriber is confidential and may only be copied to the extent reasonably necessary for internal purposes on a need to know basis. Such copies shall include the same proprietary, copyright and/or trade secret legends as the original.
  5. Confidentiality – 8Seconds and its third party contractors shall hold any information on Subscriber and its (potential) clients gathered by the Service strictly confidential and shall only use such information to provide the Service. Subscriber shall keep the terms of its subscription confidential.
  6. Warranties – Subscriber warrants that 8Seconds has the right to collect information from its marketing execution platform and/or Website and to process and use it for the Services. 8Seconds will only collect open rate and CTR (click through rate) information from the campaign results done by Client. 8Seconds will optimize the clients’ campaigns based on open- and click-through rates. 8Seconds makes no warranties as to the merchantability or fitness for a particular purpose of any winning content discovered or information provided hereunder or as to the actual overall performance of any campaigns as a result of the Services. 8Seconds does not warrant that the Services will be uninterrupted or 100% error-free.
  7. Liability – 8Seconds shall not be liable for interruptions in the Service that are due to circumstances which are beyond its reasonable control. Subscriber will indemnify, defend and hold harmless, at its sole expense, 8Seconds and Partner and their respective directors, officers and employees from any liability, damage and expenses (including reasonable attorney fees) they may suffer as the result of claims which may be instituted against them by reason of personal injury to any person, damage to property or breaches of law arising out of or connected with the exploitation of Subscriber’s business through the Website or the collection, processing or use by 8Seconds (as permitted hereunder) of information gathered through the Service. To the maximum extent permitted by law, 8Seconds and Subscriber will not be liable with respect to any subject matter of this agreement under any tort, contract, negligence, failing to abide by the terms of usage in the user manual and/or trainings, strict liability or other legal or equitable theory for (1) any amounts in excess of the first 6 monthly Subscription Amounts actually paid by Subscriber, (2) any lost data or other special, incidental or consequential damages of any character, including, without limitation, damages for loss of goodwill, work stoppage, computer failure or malfunction, or any and all other commercial damages or losses, even if 8Seconds has been advised of the possibility of such damages. 8Seconds shall indemnify, defend and hold harmless Subscriber, and their respective officers, directors, employees, owners, shareholders, legal representatives, agents, successors and assigns, from and against any damages, losses, liabilities, fines, costs and expenses (including reasonable attorneys’, professionals’ fees and court costs) arising out of any third party claims arising from, related to or in connection with (i) any allegation that the Services infringe the intellectual property rights of a third party or (ii) any allegation that the Services or 8Seconds has violated an applicable law; provided however, that (a) Subscriber shall have promptly provided 8Seconds with written notice thereof and reasonable cooperation, information, and assistance in connection therewith (provided that any delay by Subscriber in notifying 8Seconds shall  relieve 8Seconds of its obligation hereunder only to the extent 8Seconds is irreparably harmed by the delay); and (b) 8Seconds shall have sole control and authority with respect to the defense, settlement, or compromise thereof but shall not enter into a settlement that prejudices Subscriber’s rights without the advance written approval of Subscriber.
  8. 8Seconds may terminate this agreement (a) immediately following written notice if Subscriber ceases to do business in the normal course, becomes or is declared insolvent or bankrupt or is the subject of any proceeding related to its liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within 60 calendar days. 8Seconds shall also have the right to suspend the Service. Within 30 days of termination, upon 8Seconds’ written request, Subscriber will certify to destruction of all originals, copies, reproductions, summaries and other tangible forms of documentation relating to the 8Seconds Service and software received from 8Seconds or Partner.
  9. Subject to written confirmation of the assignee to 8Seconds that it agrees to remain bound by the provisions hereof, Subscriber may assign this subscription to 8Seconds Service only to (a) a purchaser of or successor to substantially all of its business, or (b) an affiliate; unless such purchaser, successor or affiliate is a competitor of 8Seconds or has brought any action against 8Seconds in court.
  10. This Agreement shall be construed and interpreted in accordance with the laws of the European Community and the courts of Belgium, shall have jurisdiction over this Agreement. The parties hereto shall use best endeavours to resolve between themselves any disputes, claims or controversies arising in connection with this Agreement.