Terms and Conditions

Last modified: December 2, 2025

These Terms and Conditions (the "Agreement") constitute the binding agreement between Mailbrain LLC ("Company" or "Mailbrain") and the Customer identified in the Order Form ("Customer" or "you") governing the use of Mailbrain's services and platform (collectively, the "Services"). By accessing or using the Services, all visitors and users acknowledge, agree to, and accept all terms and conditions set forth herein.

This Agreement incorporates and includes any Order Forms, registration pages, and any subsequent exhibits, appendices, amendments or other documents executed by the parties.

NOW, THEREFORE, in consideration of the terms and conditions set forth below, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

Capitalized terms will have the meanings set forth in this Section 1, or in the section in which they are first used.

1.1 "Anonymized Data" means Customer Data from which Customer-specific characteristics have been removed, and/or that is combined with other data, in a manner that renders it generic and not attributable to Customer.

1.2 "Access Protocols" means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Company Solution.

1.3 "Authorized User" means each of Customer's employees, agents, and independent contractors who are authorized to access the Company Solution pursuant to Customer's rights under this Agreement.

1.4 "Company IP" means the Services, documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Company IP includes Anonymized Data and any information, data, or other content derived from Company's monitoring of Customer's access to or use of the Professional Services, but does not include Customer Content.

1.5 "Company Solution" means a Company software-as-a-service application identified in any Order Form that allows Authorized Users to access certain features and functions through a web interface. Use of Company Solution is limited to Customer and Authorized Users of Customer. Sharing with others is prohibited.

1.6 "Customer Content" means any content and information provided or submitted by, or on behalf of, Customer or its Authorized Users for use with the Services, including without limitation Customer Data.

1.7 "Customer Data" means all data stored by Customer in, or transmitted by Customer by or through, the Service, and data contained in Service-generated documents.

1.8 "Generative AI" means algorithms and tools that are trained on data sets and can generate text, images, video, sound or other outputs in response to user-generated prompts, including but not limited to machine learning models, natural language processing tools, and automated content generation systems.

1.9 "Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing.

1.10 "Licensed Material" means results, reports, materials and documentation made available to Customer as part of the Services.

1.11 "Order Form" means a Customer Order Form that is signed by both parties and references this Agreement.

1.12 "Privacy Policy" means the Privacy Policy found at mailbrain.com/privacy which are incorporated herein.

1.13 "Professional Services" means professional services provided by Company to Customer as described in any Order Form, including services relating to the integration of the Company Solution with third party platforms and APIs.

1.14 "Services" means any services provided by Company to Customer under this Agreement as set forth in an Order Form, including, but not limited to, provision of the Company Solution and Professional Services.

1.15 "Site" means the website, and any mobile applications, software, or other interfaces provided by Company.

1.16 "SOW" means a statement of work.

2. DESCRIPTION AND PROVISION OF SERVICES

2.1 Company Solution(s)

A subscription to Mailbrain LLC, which includes:

Data Integration

Automatic data ingestion and cleaning from email marketing platforms (including but not limited to Klaviyo), e-commerce platforms (including but not limited to Shopify), and other integrated third-party services.

Analytics Platform

Access to a web-based interface provided by Company, for Customer to analyze email marketing performance, customer behavior insights, revenue attribution, and other business metrics derived from integrated data sources.

Intelligence Features

Company's artificial intelligence and machine learning-powered analytics capabilities, which may include automated insights, predictive analytics, personalized recommendations, and other data-driven intelligence tools based on Customer's data.

Additional Features

Company may, from time to time, provide additional features, tools, integrations, and services as part of the Company Solution, including but not limited to reporting capabilities, data visualization tools, customer segmentation features, and other analytics or business intelligence functionalities.

2.2 Access

Subject to Customer's payment of the fees set forth in the Order Form ("Fees"), and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions contained in this Agreement, Company will provide Customer with access to the Company Solution for the duration set forth in the Order Form (the "Subscription Term").

2.3 Support Services

Subject to the terms and conditions of this Agreement, Company will exercise commercially reasonable efforts to (a) provide support for the use of the Company Solution to Customer, and (b) keep the Company Solution operational and available to Customer.

2.4 Hosting

Company will, at its own expense, provide for the hosting of the Company Solution, provided that nothing herein will be construed to require Company to provide, or bear any responsibility with respect to, any telecommunications or computer network hardware required by Customer or any Authorized User to access the Company Solution from the Internet.

2.5 Unpaid Subscription

Customer may access the Company Solution free of charge once Customer's Subscription Term has ended (an "Unpaid Subscription"). Customer's right to access and use the Company Solution under any Unpaid Subscription may be subject to additional limitations and restrictions as determined by the Company in its sole discretion. The Company has the right to terminate any Unpaid Subscription at any time for any reason.

2.6 Reservation of Rights

Company reserves all rights not expressly granted to Customer in this Agreement.

2.7 Suspension or Termination of Services

Company may, directly or indirectly, suspend, terminate, or otherwise deny Customer's, any Authorized User's, or any other Person's access to or use of all or any part of the Services, without incurring any resulting obligation or liability.

2.8 Generative AI

Subject to the following terms, conditions, limitations and disclaimers, Company may, through the Services, provide access to certain Generative AI tools and features. By using any Generative AI on the Services, Customer acknowledges and agrees that:

Generative AI carries certain risks, including potentially inaccurate outputs, biased results, data security vulnerabilities, intellectual property concerns, privacy risks, and additional licensing terms
Generative AI may be provided by third parties ("AI Providers"), and Company is not responsible for the acts or omissions of any AI Providers
Company provides access to Generative AI without any warranty of any kind
Customer's use of Generative AI is at Customer's own risk
Company's total liability arising from Generative AI features shall not exceed the fees paid by Customer in the twelve (12) months preceding the claim

3. COMPANY SOLUTION AND COMPANY INTELLECTUAL PROPERTY

3.1 License Grant. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable license during the Subscription Term, solely for Customer's internal business purposes and in accordance with the limitations set forth in the Order Form, to access and use the Company Solution.

3.2 Restrictions. Customer will not, and will not permit any Authorized User or other party to: (a) grant any third party access to the Company Solution or Licensed Material; (b) modify, adapt, alter or translate the Company Solution; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise permit the use of the Company Solution; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code; (e) interfere in any manner with the operation of the Company Solution; (f) modify, copy or make derivative works; (g) access or use the Company Solution to build a similar or competitive product; (h) attempt to access through any unauthorized interface.

3.3 Ownership. The Company Solution and Licensed Materials, all results of the performance of Professional Services, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Company and its suppliers.

3.4 License to Licensed Material. Subject to the terms and conditions of this Agreement, Company grants Customer a perpetual, royalty-free, fully-paid, nonexclusive, non-transferable, non-sub-licensable license to use the Licensed Material solely for Customer's internal business purposes.

3.5 Changes. Company reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful.

4. FEES AND EXPENSES; PAYMENTS

4.1 Fees. In consideration for the access rights granted to Customer and the Services performed by Company under this Agreement, Customer will pay to Company the Fees pursuant to the terms set forth on the Order Form. Fees are generally calculated based on the number of active profiles in Customer's integrated email marketing platform(s). All Fees are fully earned and non-refundable when due.

4.2 Fee Changes. Company reserves the right to modify the Fees payable hereunder at any time. For monthly subscription plans, Company may adjust pricing for subsequent billing periods by providing written notice via email at least thirty (30) days prior to the implementation of the fee change. Customer may cancel their subscription at any time through the user dashboard without any notice period.

4.3 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes.

4.4 Late Payment and Service Suspension. Any amounts not paid when due will bear interest at the rate of one and one half percent (1.5%) per month. In the event of non-payment, Customer will have a three (3) day grace period after the payment due date. If payment remains outstanding for thirty (30) days after the original due date, Company may terminate this Agreement immediately and permanently delete all Customer data.

5. CUSTOMER CONTENT AND RESPONSIBILITIES

5.1 License; Ownership; Data Integration. Customer bears sole responsibility for all obligations relating to the accuracy, quality and legality of Customer Content. Customer hereby grants Company a non-exclusive, worldwide, royalty-free and fully paid license during the Term to use the Customer Content as reasonably necessary to provide the Services.

5.2 Customer Content Warranty. Customer represents and warrants that any Customer Content will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes.

5.3 Responsibility for Data and Security. Customer and its Authorized Users will have access to the Customer Content and will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols.

5.4 Data Protection Compliance. To the extent Customer Content includes personal data, Company acts as a data processor or service provider. Customer acts as the data controller or business and is responsible for compliance with all applicable data protection laws.

5.5 AI and Machine Learning Processing. Customer acknowledges and agrees that Company may process Customer Content using artificial intelligence and machine learning models, automated decision-making systems, and third-party AI services to provide the Intelligence Features.

6. PROFESSIONAL SERVICES AND PARTNER OFFERINGS

6.1 Partner Service Recommendations. Company may, through the Services, provide recommendations for third-party services offered by Company's partners, affiliates, or related entities based on analysis of Customer's usage patterns and anonymized benchmarking data.

6.2 Third-Party Services Disclaimer. Any third-party services recommended or offered through the Services are provided by independent entities and are subject to separate terms and conditions. Company makes no warranties or representations regarding third-party services.

6.3 Referral Arrangements. Customer acknowledges that Company may receive referral fees, commissions, or other compensation from third-party service providers for successful referrals or recommendations.

7. WARRANTIES AND DISCLAIMERS

7.1 Limited Warranty. Company represents and warrants that it will provide the Professional Services and perform its other obligations under this Agreement in a professional and workmanlike manner substantially consistent with general industry standards.

7.2 Disclaimer

Except as expressly provided in Section 7.1, and to the maximum extent permitted by applicable law, the Services and Licensed Material are provided "AS IS," and Company hereby disclaims all other warranties, representations, or conditions, whether written, oral, express, implied or statutory, including any implied warranties of merchantability, title, noninfringement, or fitness for a particular purpose. Company does not warrant that errors can be corrected, or that operation of the Company Solution will be uninterrupted or error-free.

8. LIMITATION OF LIABILITY

8.1 Types of Damages

In no event will either party be liable to the other party for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data, or liabilities to third parties arising from any source.

8.2 Amount of Damages

The maximum liability of either party arising out of or in any way connected to this Agreement will not exceed the fees paid by Customer to Company during the twelve (12) months preceding the act, omission or occurrence giving rise to such liability.

9. CONFIDENTIALITY

9.1 Confidential Information. "Confidential Information" means any nonpublic information of a party, whether disclosed orally or in written or digital media, that is identified as "confidential" or that the receiving party knows or should have known is the confidential or proprietary information of the disclosing party. The Services, and all enhancements and improvements thereto, will be considered Confidential Information of Company.

9.2 Protection of Confidential Information. The receiving party agrees that it will not use or disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement. The receiving party will protect the disclosing party's Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.

10. INDEMNIFICATION

10.1 By Company. Company will defend at its expense any suit brought against Customer, and will pay any settlement Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Company Solution infringes such third party's patents, copyrights or trade secret rights under applicable laws within the United States of America.

10.2 By Customer. Customer shall indemnify, hold harmless, and, at Company's option, defend Company from and against any losses resulting from any third-party claim that the Customer Content or any use of the Customer Content in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights.

11. TERM AND TERMINATION

11.1 Term. This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement.

11.2 Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.

11.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) any amounts owed to Company under this Agreement will become immediately due and payable.

11.4 Data Retention and Deletion. Upon termination or expiration of this Agreement, Customer's access to the Company Solution and all Customer Content will immediately cease. Customer is solely responsible for exporting or backing up any Customer Content prior to termination. Customer Content will be scheduled for deletion within thirty (30) days after termination.

12. MISCELLANEOUS

12.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Florida, without giving effect to any conflicts of laws principles.

12.2 Force Majeure. Neither party will be liable for any failure or delay in performance under this Agreement which is due to fire, earthquake, flood, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott, supplier failure, or other similar events beyond the reasonable control of such party.

12.3 Dispute Resolution. In the event of any dispute, the parties shall first attempt to resolve any Dispute through informal, good faith negotiations. If the parties are unable to resolve the Dispute through informal negotiations within thirty (30) days, either party may submit the Dispute to final and binding arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules.

Class Action Waiver

The parties hereby waive any right to participate in a class action, collective action, or other representative proceeding. All disputes must be brought in the parties' individual capacity.

12.4 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof.

12.5 Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Company.

12.6 Notices. All notices required or permitted under this agreement must be delivered in writing, if to Company, by emailing support@mailbrain.com.

12.7 Severability. If any provision of this Agreement is held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable.