Last Updated: September 1, 2016
Total Product Marketing (“Five Pilots”, “we”, “us” and terms of similar meaning) provides this website and the services provided by or through this website to you subject to these terms and conditions of use (“Terms”).
In these Terms we call this website, any successor websites (together, “the Site”) and the content, service and reports we provide, the “Application”. The Application includes (a) your use of the Five Pilots Content, and the use of the Five Pilots Content by third parties authorized through your Five Pilots account that use your email lists (as defined below) within the engagement terms set forth by Five Pilots, and (b) the reports generated by Five Pilots that detail the engagement of the email lists.
Please read these Terms carefully before using the Application. By accessing or using the Application, you agree to be legally bound by these Terms and all terms, policies and guidelines incorporated by reference in these Terms. If you do not agree with these Terms in their entirety, you may not use the Application.
The Application is not intended to be used by children. You must be at least of the age of majority to use the Application.
In these Terms, our customers and the persons to whom they give “staff” or “advisor” access to their Five Pilots account are called “Subscribers”, and our customers’ customers who use the Application are called “Customers”. In these Terms, users of the Application, whether they are Subscribers, Customers, or members of the Five Pilots network, are called “Users”.
Five Pilots reserves the right to change or modify any of the terms and conditions contained in these Terms, or any policy or guideline applicable to the Application, at any time and in its sole discretion. If we do so, we will notify you at the email address you provide in your registration information or contact you by phone to discuss in person. If you do not agree with the changes, you can cancel your account with us without further obligation, except for the amount due for the balance of the billing period in which you cancel your account (if your billing period is monthly, we will prorate your account to the nearest month-end after cancellation). Unless otherwise specified, any changes or modifications will be effective immediately upon posting of the revisions on the Site, and your continued use of the Application after such time will constitute your acceptance of such changes or modifications. You should, from time to time, review the Terms and any policies and documents incorporated in them to understand the terms and conditions that apply to your use of the Application. The Terms will always show the ‘last updated’ date at the top. If you do not agree to any amended Terms, you must stop using the Services. If you have any questions about the Terms, please email us at support[at]fivepilots.com.
The Services are for your own use only. You may not resell, lease or provide them in any other way to anyone else, except as expressly permitted through the Application.
- Registration Data; Account Security
If you register for an account on the Application, you agree to (a) provide accurate, current, and complete information as may be prompted by any registration forms on the Application (“Registration Data”); (b) maintain the security of your password and your Content key; (c) maintain and promptly update the Registration Data, and any other information you provide to Five Pilots, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information you provide to Five Pilots. You are responsible for all activity on your Five Pilots account, and for all charges incurred by your Five Pilots account.
- Fees, Charges, and Taxes
Fees and any other charges for the use of the Application and for any add-ons are described on the Site. Fees may change from time to time. If we change any fees, we will give you at least 30 days’ notice. If fees do change, your continued use of the Application or the add-ons, as the case may be, after the change indicates your agreement with the new fees and charges after the effective date of the change. Any change to fees and other charges will not apply to the billing period in which the change occurs.
You are responsible for all taxes applicable to the fees and charges in any applicable jurisdiction.
- Ownership, Copyright, and Trademarks
In these Terms, the content available through the Application, including all information, data, logos, marks, designs, graphics, pictures, sound files, other files, and their selection and arrangement, is called “Content”. Content provided by Users, whether they are Subscribers, Customers or other Users, is called “User Content”.
User Content is the property of the User who provided it. Five Pilots’ only right to that User Content is the limited licenses to it granted in these Terms. Those licenses are described in Section 5 and Section 17 of these Terms.
Other than the User Content, the Services, all Content and all software available on the Application or used to create and operate the Application is the property of Five Pilots or its licensors, and is protected by Canadian and international copyright laws, and all rights to the Application, such Content and software are expressly reserved. All trademarks, registered trademarks, product names and company names or logos mentioned in the Application are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Five Pilots.
- Limited License of Your User Content to Five Pilots
We do not claim any ownership interest in your User Content, but we do need the right to use your User Content to the extent necessary to operate the Site and provide the Services, now and in the future. For example, if you submit comments on the Five Pilots blog or post in the Five Pilots forum, we need your license to display that User Content on the Application, and we need the right to sublicense that User Content to our other Users so that they can view that User Content.
Therefore, by posting or distributing User Content to or through the Application, you (a) grant Five Pilots and its affiliates and subsidiaries a non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content, in the manner in and for the purposes for which the Application from time to time uses such User Content; (b) represent and warrant that (i) you own and control all of the rights to the User Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute that User Content, to or through the Application; and (ii) the use and posting or other transmission of such User Content does not violate these Terms and will not violate any rights of or cause injury to any person or entity.
These licenses from you are non-exclusive because you have the right to use your User Content elsewhere. They are royalty-free because we are not required to pay you for the use of your User Content on the Services. And they are transferable because we need the right to transfer these licenses to any successor operator of the Application. Our rights to “modify, adapt, translate, and create derivative works from” are necessary because the normal operation of the Application does this to your User Content when it processes it for use in the Application.
- Our Limited License of Content to You
Five Pilots grants you a limited, revocable, non-exclusive, non-sublicensable license to access the Application and to view, copy, and print the portions of the Content available to you through the Application. Such license is subject to these Terms, and specifically conditioned upon the following: (a) you may only view, copy, and print such portions of the Content for your own use; (b) you may not modify or otherwise make derivative works of the Content, or reproduce, distribute, or display the Content (except for page caching) except as expressly permitted in these Terms; (c) you may not remove or modify any copyright, trademark, or other proprietary notices that have been placed in the Content; (d) you may not use any data mining, robots or similar data gathering or extraction methods; and (e) you may not use the Application or the Content other than for their intended purpose.
Except as expressly permitted above, any use of any portion of the Content without the prior written permission of its owner is strictly prohibited and will terminate the license granted in this Section, this Agreement and your account with us. Any such unauthorized use may also violate applicable laws, including without limitation, copyright and trademark laws. Unless explicitly stated herein, nothing in these Terms may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license in this Section is revocable by Five Pilots at any time.
You represent and warrant that your use of the Application and the Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any applicable law.
To request permission for uses of Content not included in this license, you may contact Five Pilots at the address set out at the bottom of these Terms.
- Using the Five Pilots Content
This Section contains terms and conditions applicable to your use of the Five Pilots Content, whether you are a Subscriber or other User, including a developer or operator of a website or application who wishes to use the Five Pilots Content for the purpose of including Content in your Five Pilots Content Implementation. If you are a Subscriber and you engage a third party to develop a Five Pilots Content Implementation for you, this Section applies to your and their use of the Five Pilots Content, and you are responsible for their compliance with this Section to the same extent as though you were developing the Five Pilots Content Implementation yourself.
If you are a Content Developer and not otherwise a User, your use of the Five Pilots Content constitutes your agreement to these Terms. We may change these Terms without notice to you by posting new Terms on the Site. It is your responsibility to review the Site for changes to the Terms. If you use the Application after new Terms are posted, your use of the Application constitutes your agreement to the new Terms. If you do not wish to be bound by the new Terms, cease your use of the Application.
If you are a Content Developer and not otherwise a Subscriber or other User of the Services, the license set forth in this Section applies to your use of the Five Pilots Content, and the license set forth in Section 6 does not apply to your use of the Five Pilots Content. If you are also a Subscriber or other User, the license set forth in Section 6 applies to your use of Content other than the Five Pilots Content, and this Section applies to your use of the Five Pilots Content.
Your use of the Five Pilots Content is also subject to the following restrictions. You may not:
Interfere or attempt to interfere in any manner with the proper workings of the Five Pilots Content, or create or distribute any Five Pilots Content Implementation that adversely affects the functionality or performance of the Application or adversely impacts the behavior of other applications using the Five Pilots Content;
Misrepresent your identity or intentions when communicating with us in relation to the Five Pilots Content, use the developer credentials licensed to a different individual or entity, allow your credentials to be used by others, or mask your usage of the Five Pilots Content;
Use the Five Pilots Content in association with, or as a component of, any website that in the sole discretion of Five Pilots is determined to be obscene or otherwise inappropriate;
Use the Five Pilots Content for any application that constitutes, promotes or is used in connection with spyware, adware, other malicious programs or code;
Use the Five Pilots Content in any manner or for any purpose that violates any law or regulation, any right of any person, including but not limited to intellectual property rights, rights of privacy, or rights of personality;
Replicate, in whole or in part, the “look and feel” of Five Pilots with your Five Pilots Content Implementation;
Include in your Five Pilots Content Implementation a combination of visual, design, or functional elements that could reasonably be expected to cause confusion between Five Pilots and your Five Pilots Content Implementation among users;
Disparage or otherwise negatively represent Five Pilots in your Five Pilots Content Implementation;
Use the Five Pilots Content for any application that attempts to replace or replicate the essential user experience or functionality of the Application;
Circumvent or render ineffective any IP address-based functionality or restriction imposed by the Application;
Circumvent technological measures to prevent direct database access, or manufacture tools or products to that effect;
Build conversion functionality that converts Content from the Application to a competing product or service; or
Solicit, interfere with, or endeavor to entice away from us any of our Subscribers at any time you are operating your Five Pilots Content Implementation.
You agree to carefully monitor your use of the Five Pilots Content and ensure that it remains within reasonable operational limits for both your own server capacity and for ours. You acknowledge and agree that we may impose or adjust the limit on the number of transactions you may send or receive through the Application; such fixed upper limits may be set by us at any time, at our discretion.
Five Pilots has no responsibility to any person for any use or misuse of any Content obtained through the Five Pilots Content. If you are a Subscriber, you should consider carefully whether you wish to give a Content Developer access to your Content through the Five Pilots Content. If you wish to revoke access to your Content through the Five Pilots Content, you should change your Five Pilots Content key or revoke authorization of the Five Pilots Content Implementation to your Content. Please contact us at support[at]fivepilots.com if you want assistance doing this.
- Providing a Reliable and Secure Service
If you have spent any time reviewing the Application, you will hopefully have noticed that we take reliability and security seriously. We put a great deal of effort into ensuring that our service operates all the time, and that it is a secure environment for your data. We use what we believe to be “best-of-class” hosting services and security technologies and services that we believe provide you with a secure and safe environment. More information about these services and technologies is available on the Site.
However, no system is perfectly secure or reliable; the Internet is an inherently insecure medium and the reliability of hosting services, Internet intermediaries, your Internet service provider, and other service providers cannot be assured. When you use Five Pilots, you accept these risks, and the responsibility for choosing to use a technology that does not provide perfect security or reliability.
Finally, Five Pilots provides the Five Pilots Content to facilitate the use of the Application with other services on the Internet. If a third party is authorized through your Five Pilots account to have access to your User Content through the Five Pilots Content, we cannot control and are not responsible or liable for the third party’s use of your User Content.
- No Responsibility for Third Party Services, Sites, or Content
As a service to our users, the Site may contain links to third party websites (“Third Party Sites”) or third party content (“Third Party Content”) and may provide third party services (“Third Party Services”). You use Third Party Sites, Third Party Content (together, “Third Party Materials”) or Third Party Services at your own risk.
Five Pilots makes no claim or representation regarding Third Party Materials or Third Party Services, and provides them or links to them only as a convenience. Inclusion of Third Party Materials or Services does not imply Five Pilots’ endorsement, adoption, sponsorship of, or affiliation with such Third Party Materials. Five Pilots accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of Third Party Materials, or websites linking to the Application. When you leave the Application, our terms and policies no longer govern use, and when you use Third Party Services, their terms and policies apply. You should review applicable terms and policies, including privacy and data gathering practices, of any Third Party Materials and Third Party Services, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
- Advertisements and Promotions
Five Pilots may run advertisements and promotions from third parties on the Application. Your business dealings or correspondence with, or participation in promotions of, advertisers other than Five Pilots, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and that third party. Five Pilots is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of third party advertisers on the Application.
- Warranty Disclaimer
The Site, the Content, and the Services are provided to you on an “as is” basis without warranties from Five Pilots of any kind, either express or implied. Five Pilots expressly disclaims all other warranties, express or implied, including without limitation, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Five Pilots does not represent or warrant that Site, the Content, or the Services are accurate, complete, reliable, current or error-free.
While Five Pilots attempts to make your access to and use of the Application safe, Five Pilots does not represent or warrant that the Site, the Content, or the Services are free of viruses or other harmful components.
- Limitation of Liability; Indemnity
You waive and shall not assert any claims or allegations of any nature whatsoever against Five Pilots, its affiliates or subsidiaries, their sponsors, contractors, advertisers, vendors or other partners, any of their successors or assigns, or any of their respective officers, directors, agents or employees (collectively, the “Released Parties”) arising out of or in any way relating to your use of the Site, the Content, or the Services, including, without limitation, any claims or allegations relating to infringement of proprietary rights, or allegations that any Released Party has or should indemnify, defend, or hold harmless you or any third party from any claim or allegation arising from your use or other exploitation of the Site, the Content, or the Services. You use the Site, the Content, and the Services at your own risk.
Without limitation of the foregoing, neither Five Pilots nor any other Released Party shall be liable for any direct, special, indirect, or consequential damages, or any other damages of any kind, including, but not limited to, loss of use, loss of profits, or loss of data, whether in an action in contract, tort (including but not limited to negligence), or otherwise, arising out of or in any way connected with the use of or inability to use the Site, the Content, or the Services, including, without limitation, any damages caused by or resulting from your reliance on the Site, the Content, the Services, or other information obtained from Five Pilots or any other Released Party or accessible via the Site, the Content, or the Services, or that result from mistakes, errors, omissions, interruptions, deletion of files or email, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction, or unauthorized access to Five Pilots or any other Released Party’s records, programs, or services.
In no event shall the aggregate liability of Five Pilots, whether in contract, warranty, tort (including negligence, whether active, passive or imputed), product liability, strict liability or other theory, arising out of or relating to the use of the Site, the Content, or the Services, exceed any compensation paid by you for access to or use of the Site, the Content, or the Services, as the case may be, during the three months prior to the date of any claim.
You shall defend, indemnify, and hold harmless Five Pilots and the other Released Parties from any loss, damages, liabilities, costs, expenses, claims, and proceedings arising out of your use of the Site, the Content, and the Services, and if you are a Subscriber, from your Customers’ use of the Services and from the use of the Site, the Content, and the Services by any person to whom you give access to your account (including staff or advisors), including any claims made by any person that any of your, and if you are a Subscriber, your Customers’, User Content infringes the rights, including the intellectual property rights, of any third party.
Notices that we give you (other than notice of amendment of these Terms, which is discussed in the introduction of these Terms) may be provided in any number of ways, depending on the circumstances. For example, we may email you or telephone you at the contact information you provide in your Registration Data. Or we may post a notice to Subscribers and Customers in the dashboard area of your account on the Site, or post the notice elsewhere on the Site. When we post notices on the Site, we post them in the area of the Site suitable to the notice. It is your responsibility to periodically review the Site for notices.
- Applicable Law and Venue
The Application is controlled by Five Pilots and operated by it from its offices in Vancouver, British Columbia. You and Five Pilots both benefit from establishing a predictable legal environment in regard to the Application. Therefore, you and Five Pilots explicitly agree that all disputes, claims or other matters arising from or relating to your use of the Site, the Content, or the Services will be governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Except where prohibited by applicable law, any claim, dispute, or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether preexisting, present or future) involving Five Pilots and arising out of or relating to (a) these Terms; (b) the Site, the Content, or the Services; (c) oral or written statements, advertisements or promotions relating to these Terms or to the Site, the Content, the or the Services; or (d) the relationships that result from these Terms or the Site, the Content, or the Services (collectively, a “Claim”), will be referred to and determined by a sole arbitrator (to the exclusion of the courts). Except where prohibited by applicable law, you waive any right you may have to commence or participate in any class action against Five Pilots related to any Claim and, where applicable, you also agree to opt out of any class proceedings against Five Pilots. If you have a Claim, you should give written notice to arbitrate at the address specified below. If we have a Claim, we will give you notice to arbitrate at your address provided in your Registration Data. Arbitration will be conducted by one arbitrator pursuant to the commercial arbitration laws and rules in effect on the date of the notice in the Province of British Columbia.
To the extent arbitration as described in the immediately preceding paragraph is prohibited by applicable law, you agree that all Claims will be heard and resolved in a court of competent subject matter jurisdiction located in Vancouver, British Columbia. You consent to the personal jurisdiction of such courts over you, stipulate to the fairness and convenience of proceeding in such courts, and covenant not to assert any objection to proceeding in such courts.
If you choose to access the Application from locations other than British Columbia, you will be responsible for compliance with all local laws of such other jurisdiction and you agree to indemnify Five Pilots and the other Released Parties for your failure to comply with any such laws.
- Termination/Modification of License and Site Offerings
Notwithstanding any provision of these Terms, Five Pilots reserves the right, without notice and in its sole discretion, without any liability to you, to (a) terminate your license to use the Application, or any portion thereof (including any use of any add-on) and the rights of any third party to which you have granted access to your User Content through the Five Pilots Content; (b) block or prevent your future access to and use of all or any portion of the Application (including any use of any add-on) and the rights of any third party to which you have granted access to your User Content through the Five Pilots Content; (c) change, suspend or discontinue any aspect of the Application; and (d) impose limits on the Application.
- Termination of Agreement
You and Five Pilots may terminate your use of the Application including your agreement to these Terms at any time. If you terminate your use of the Application, you must pay the fees applicable for the balance of the then current billing period (if your billing period is monthly, we will prorate your account to the nearest month-end after termination) including for any add-ons you may be using. When your Five Pilots account is terminated, your User Content will, shortly thereafter, not appear on the Application, except for User Content submitted to public areas of the Site such as the blog, forum, or product reviews, which may remain on the Site after termination. We may also retain an archival copy of your User Content after termination, and you hereby grant us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for our internal business purposes.
If any provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. Five Pilots may assign any or all of its rights hereunder to any party without your consent. You are not permitted to assign any of your rights or obligations hereunder without the prior written consent of Five Pilots, and any such attempted assignment will be void and unenforceable. These Terms constitute the entire agreement between you and Five Pilots regarding your use of the Site, the Content, and the Services, and supersede all prior or contemporaneous communications whether electronic, oral, or written between you and Five Pilots regarding your use of them. The parties confirm that it is their wish that these Terms, as well as any other documents relating to these Terms, including notices, have been and shall be drawn up in the English language only. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais.
- Questions and Comments
If you have any questions regarding these Terms or your use of the Application, please contact us here:
1090 Homer Street
V6B 2W9 Canada