“Agreement”) constitutes a legal agreement between you and BridesView, Inc. dba
Tailwind, a Delaware Corporation, (“Tailwind,” “we,” or “us”). You are a customer
The “Term” is the time during which you are entitled to use our website and software to
market your services, including engaging with Pinterest followers, accessing analytics
and sending electronic newsletters and other digital content. If an individual purports,
employer or client, “you” refers to the employer or client. If not, “you” refers to the
individual signing hereon. You are responsible for assuring that all the terms and
conditions of this Agreement are complied with. By clicking the button to join
Tailwind, you will be agreeing to the terms of this Agreement. Furthermore, by clicking
that button, after typing in your username, or other indication of your identity, you do
confirm to us that typing in such indication of identity constitutes your “signing” of
this Agreement for all purposes under applicable law. Any individual clicking the button
on behalf of another individual or entity, listed as the Member above, does hereby
represent and warrant that such agreement is being made with full authority.
WARNINGS OF SERIOUS LEGAL CONSEQUENCES
(Applies to All Members of Tailwind)
- Who We Are : “Tailwind” is a trade name of BridesView, Inc., a Delaware Corporation, that owns and operates the website with the URL: http://www.tailwindapp.com (the “Website”).
- Eligibility : We require that any Member be at least eighteen (18) years of age. By using the Services, you represent and warrant that you are at least eighteen (18) years of age and that your use of the Services does not violate any applicable law or regulation. Your uploads may be deleted and your subscription may be terminated without warning, if we have reason to believe you are under eighteen (18) years of age.
- Charges and Payments :
- Subscription Plans
- 5.1 Our charges for subscription plans (monthly, quarterly, semiannual, annual) are posted on our Website and may be changed from time-to-time. Payments are due for the full period for which any part of the period is included in the “Term.” Payments are due for any period on the same date, or the closest date in that month, to the date of the month you signed up with us and made your first payment (the “Pay Date”). For any period for which you have already paid, for which you increase your service level causing you to go to another pricing level, except as otherwise provided in this Agreement, you will be required to pay at the higher level on or before the Pay Date for the following period. If the Term ends before such payment is due, you will still be required to make one payment at the higher level.
- 5.2 As long as you are a Member or have an outstanding balance with us, you agree to at all times provide us with valid credit card information or valid authenticated PayPal account and authorize us to deduct the period charges against such credit card or PayPal account and to replace the information for any credit card that expires with information on a different valid credit card or PayPal account. Any individual using a credit card represents and warrants that he or she is authorized to use such credit card and that any and all charges may be billed to such credit card and will not be rejected.
- 5.3 Whenever you increase your service level so that you are at a more expensive level, we may, at our sole discretion, require you to pay the difference in the subscription payment before the Services are delivered.
- 5.4 You may elect to buy credits to use our Services if such option is presented on our website, rather than sign up for a subscription plan. If you elect a “Pay-as-You-Go Plan,” you will still be considered a “Member” and all the terms of this Agreement will still apply to you other than the requirement that you pay us by subscription period.
- 5.5 We are required to provide a refund only if we terminate our Services to you without cause before the end of a period for which you have paid. There is no other circumstance in which you will be entitled to a refund from us. We may, at our sole discretion, offer refunds in other situations.
- Subscription Plans
- Term, Termination and Removal : Either party may terminate the Term of this Agreement at any time for any reason by providing Notice to the other party. We may suspend our Services to you at any time with or without cause. We will refund a pro rata portion of your monthly prepayment or reimburse you for unused credits if we terminate you without cause. We will not refund and/or reimburse you in such manner, if there is cause, such as your using our system to send bulk Emails to people with whom your relationship does not meet the requirements of 11(b) below. Once terminated, we may remove any of your data, images, electronic newsletters or other emails and related data and files from our Website and any other storage. Additionally, if you do not log in to your account for 12 or more months, we may, at our sole discretion, deem your account “inactive” and permanently delete your account and all data associated with it.
- Account and Password : You are responsible for maintaining the confidentiality of any account name and password provided to you. You are solely responsible for uses of any account provided to you, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of any account of yours.
- Proprietary Rights Owned by Us : You acknowledge that we, or our suppliers, own all proprietary rights in the Website and the software used to provide the Services, including, but not limited to, any patents, trademarks, service marks and copyrights.
- Proprietary Rights Owned by You : You represent and warrant to us that you will not authrnticate any social media accounts, add or upload any content to the Website to create an electronic newsletter, or for any other purpose unless you are the owner of all proprietary rights in that content (or have been given a valid license from the owner of the proprietary rights in such content) and have obtained releases for all related privacy and publicity rights.
- Use and Ownership of Data Provided, Including E-mail and User Lists
- Tailwind will never sell your data or a copy of it to a third party.
- Tailwind will never publish your email or user lists.
- Tailwind will not send unsolicited marketing messages promoting Tailwind’s services to users on your E-mail or User lists. We do reserve the right to send messages related to executing or improving the Services. For example, we may send an e-mail asking users to update or confirm their contact information, or messages asking if they want to opt-out of certain services.
- By providing data to Tailwind, you are granting Tailwind a perpetual, irrevocable right to use and make copies of the data provided, as well as create derivative works from it, as we deem necessary to operate the Services. You are also confirming that you have the full authority to grant such rights.
- Tailwind reserves the right to create and publish case studies, benchmark reports and other marketing material based on data related to the performance of the Services, provided such data is aggregated or anonymized in a way that does not threaten user privacy.
- Any data collected related to your brand or users from publicly available sources or third party partners of Tailwind is the sole property of Tailwind.
- Tailwind’s rights related to the Use and Ownership of Data will survive any Change In Control of BridesView, Inc. or assets related to the Tailwind Services, including acquisition by another entity.
- General Rules : You agree to the following:
- You will not incorporate into your Email or Social Media Marketing any text, photos, graphics or other content that is not created by you, not provided by us for you to incorporate into your Emailor Social Media Marketing or you are not otherwise permitted to use.
- You will not post on the Website, including in any Emails or Social Media Marketing created or sent using our Services, any misleading or incorrect name, address, email address, subject line or any other misleading or incorrect information.
- You will not publish any material that contains sexually related text, photographs or other content, or content that is defamatory, obscene, indecent, threatening, abusive or hateful.
- You will not share your Tailwind password.
- You will not attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way used or downloaded from the Website.
- You will not include in any Emails or Social Media Marketing any material, including, but not limited to, text and graphics, the inclusion of which is in violation of any other party’s rights, including, but not limited to, copyrights and privacy and publicity rights.
- You will not set up multiple accounts for any individual, organization or entity or in order to send substantially similar content unless you are part of a franchise.
- You will not import or incorporate into any lists, emails or uploads to our servers any of the following information: Social Security Numbers, passwords, security credentials, or sensitive personal information of any kind.
- You will not send transactional messages through Tailwind.
- Anti-Spam and Abuse Related Rules : You agree to the following:
a. Definition of SPAM: We have adopted the definition of Spam set forth on the
Spamhaus website at http://www.spamhaus.org/definition.html
The first line of the Spamhaus definition reads:
- The word “Spam” as applied to Email means Unsolicited Bulk Email (“UBE”).
- It is a concern to us if you use Tailwind to send any unsolicited email to anyone with whom you have no relationship. It is much more of a concern, and more likely to cause our system to be blocked by various ISP’s or third party service providers, for you to send an unsolicited email to an entire list of people you don’t know.
b. Permission Lists Only: You may use Tailwind only to send Emails or Social
Media Marketing to individuals and entities that either:
- Possibility 1 – Consent Obtained
- A. gave or give you written (including electronic) permission to send Emails or
Social Media Marketing to them, without subsequently withdrawing such permission and
- Consent Given Recently gave you the permission within the prior 12 months; or
- Consent Given More Than One Year Earlier you sent them a promotional email or social media marketing message, which was not objected to, within the prior 12 months; or
- A. gave or give you written (including electronic) permission to send Emails or Social Media Marketing to them, without subsequently withdrawing such permission and either:
- Possibility 2 – Sold or Negotiated to Sell Product or Service
- B. gave or give you their name and email address in connection with their purchase,
or negotiations to purchase, a product or service from you, have not opted out from
receiving your emails and either:
- Recent Sale or Negotiation such sale or negotiations occurred within the previous 12 months; or
- Sale or Negotiation Occurred More than One Year Earlier you sent them a promotional email or social media marketing message, which was not objected to, within the prior 12 months.
- If you send Emails or Social Media Marketing to a list, and you get an unusual amount of SPAM complaints (more than 1 out of 1,000), ISPs will begin blocking future emails from your company. They will also request (that’s putting it mildly) that Tailwind shut down your account. So if you don’t have proof that each recipient on your list has opted-in to receive your emails, or otherwise meets the above requirements, don’t provide them to or import them into Tailwind.
- B. gave or give you their name and email address in connection with their purchase, or negotiations to purchase, a product or service from you, have not opted out from receiving your emails and either:
c. Requirements: You agree that you will use:
- No purchased lists (no matter how expensive).
- No rented lists (even if they “opted in”).
- No 3rd party lists whatsoever.
- You should only use Tailwind to send Social Media Marketing, newsletters, updates, and promotions to people who specifically requested email from you, or otherwise meet the requirements of 11(b) above.
d. We’re In This Thing Together: We do what we can to keep our system clean, but
you agree to pitch in too. Here’s how:
- Sending your first campaign to an old list? Many recipients won’t remember you, and will report you for spamming. Do everything in your power to remind them of who you are, and how they got on your list.
- Clean your customer list before you import. Take out any addresses older than 6 months. Bad addresses lead to bouncebacks. Too many bouncebacks, and ISPs block Tailwind (and you). We’ll shut your account down if you import an old list that gets too many bounces.
- Don’t just import your entire Outlook Address Book. Export them into a spreadsheet, then take some time to clean out bad addresses (like Sales@Mailchimp.com, or Support@Google.com). If you import even one address by mistake, that person can get you blacklisted and shut down.
- Importing from a CRM? Break it into separate segments or interest groups so you can send relevant content to your customers. Don’t just mix a bunch of different lists together and send one “blast” to all of them.
- Sending on behalf of a client? Educate your client about responsible email marketing. They’re depending on you to be the expert. Here are some email marketing resources for you.
e. CRM, Salesforce, and API Imported Lists: CRM tools are great for maintaining
relationships with prospects and leads, then converting them into paying customers. Or
just nurturing your customer relationships. But CRM tools are built for one-to-one
communication. Email marketing tools like Tailwind are built for one-to-many
communication. They are not the same. Spam laws apply when you do one-to-many email
- Before importing any list into Tailwind from your CRM or any other database you maintain, understand our permission-lists-only rules. Remove any prospects or leads who did not explicitly request email marketing from you or otherwise meet the requirements of 11(b) above. Even if you’re sending email marketing to customers who have consented to receive your Email, you are still required, under applicable law, to allow them to opt-out of your email marketing list (you may need to turn that feature ON in your CRM tool). The simple fact that a recipient is “in my CRM” is not the same as “they gave us permission to send them email marketing.”
f. Prohibited Content and Industries
- Don’t use Tailwind to send anything offensive, to promote anything illegal, or to harass
anyone. You may not send:
- Pornography or other sexually explicit Emails
- Emails offering to sell illegal substances
- Emails that violate the CAN-SPAM Law
- Also, there are some industries that send certain types of content that result in higher
than normal bounce rates and abuse complaints, which in turn jeopardize the deliverability
of our entire system. No offense intended, but because we must ensure the highest delivery
rates possible for all our customers, we do not allow businesses that offer these types of
services, products, or content:
- Illegal goods or services
- Escort and dating services
- Pharmaceutical products
- Work from home, Internet Lead-gen, Make money on online opportunities, etc.
- Online trading, day trading tips, or stock market related content
- Gambling services, products or gambling education
- Multi-level marketing
- Affiliate marketers
- Credit repair, get-out-of-debt content
- Mortgages and/or Loans
- Nutritional Supplements, Herbal Supplements or Vitamin Supplements
- Pornography or nudity in content
- Adult novelty items or references in content
- List brokers or List rental services
- Marketing or sending commercial email without proper permission
g. Who Can Use Tailwind
- If you do not meet these eligibility requirements, you may not use the Tailwind service:
- You must be at least 18 years of age, and be able to form legally binding contracts under applicable law.
- You must complete the registration process and agree to the terms of this Agreement. All contact information you submit must be true, complete, and up to date.
- Tailwind does reserve the right to refuse service or to terminate accounts for any user, and to change eligibility requirements at any time, in its sole discretion.
h. Data Archival
- Our servers store a lot of data, as do our third party partners. Occasionally, we need to archive and/or delete some of it to make room for new data, so that we don’t have to keep raising prices in order to afford more and more servers. We reserve the right to archive data at our sole discretion to maintain a cost-effective service. We can not control and will not be liable for any effects of a third party service choosing to archive data on their servers.
i. Bandwidth Abuse: Image hosting, API, Tracking
- You may not use our bandwidth for anything other than your Tailwind Services.
j. Fees, Refunds, Account Suspensions, Etc.
- You agree:
- Tailwind reserves the right to change our fees at any time by posting a new fee structure to our Website and/or sending you a notification of the change by email.
- If a user violates any of the terms of this Agreement, we reserve the right to cancel accounts, or bar access to accounts, without refund.
- If, for some reason, we are unable to process your credit card order, we will attempt to contact you by email and we will suspend service of your account until your payment can be processed.
- You agree to pay for all Services, regardless of their effectiveness.
- No Warranties : to the maximum extent permitted by law, the material on this website and the services (including all content, software, functions, services, materials and information made available herein or accessed by means hereof) are provided as is, without warranties of any kind, either express or implied, including but not limited to, warranties of merchantability and fitness for a particular purpose.
- Limitation of Liability : to the maximum extent permitted by law, you assume full responsibility and risk of loss resulting from your use of the website and the Services including any downloads from the website. Under no circumstances shall we or any of our employees or representatives be liable for any indirect, punitive, special or consequential damages even if we or any of our employees or representatives have been advised of the possibility of such damages. Uur total liability in any event is limited to the amount, if any, actually paid by you for use of the website and the services for the period ending on the date a claim is made and you hereby release us and our employees and representatives from any and all obligations, liabilities and claims in excess of this limitation.
- Indemnity : You agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses (including, but not limited to, attorney fees) resulting from any claims not permitted under this Agreement due to a “Limitation of Liability” or other provision, that you assert, or may assert, based on or relating to your use, or the use of any individual using your password, of this Website or the Services. You further agree to indemnify and hold us, and our directors, officers, employees and representatives, harmless from any and all losses resulting from claims of third parties, including, but not limited to, attorney fees, that result in whole or in part from allegations of conduct by you that, if true, would constitute a violation by you, or any individual using your password, of any of the terms of this Agreement.
- Liquidated Damages : The parties agree that we may recover liquidated
damages, in lieu of any other damages that may have been recoverable, for certain
Liquidated damages are being made available for specified situations in which
proving the actual damages would likely be impossible. The liquidated damages are
being set at a reasonable pre-estimate of the damages that would be incurred as a
result of the particular type of breach. The particular type of breaches that
constitute Abusive Conduct, and the liquidated damages for each type are as
Abusive Conduct Liquidated Damages (a) violations of provisions of this Agreement designed to avoid Tailwind being viewed as a source of spam such as sending Emails or Social Media Marketing to people who have not consented to receiving bulk emails from you in the immediately preceding 12 months and to whom you are not otherwise authorized to send Emails under 11(b) above; sending Emails offering the types of products or services set forth in 11(f) above; or sending Emails that include false or misleading headings or other content or otherwise violate anti-SPAM laws, i.e., laws that restrict and regulate the sending of bulk emails. Five times the total of our highest then current monthly charges over a period of 1 year (i.e. 5 times 12 times our monthly charges), but not less than $1,000 (b) violations of provisions of this Agreement designed to protect Tailwind from its users taking actions to use Tailwind’s resources in a way not permitted hereunder such as using our Services to host images other than for Emails you send out using the Services such as for your website; or sending out any Emails created using the Services, other than via the Services. Four times the total of our highest then current monthly charges over a period of 1 year (i.e. 4 times 12 times our monthly charges), but not less than $1,000 (c) not paying an amount due within ten (10) days after a demand by us. Three times the total of our highest then current monthly charges over a period of 1 year (i.e. 3 times 12 times our monthly charges), but not less than $1,000 in addition to the sum owed
- Attorney Fees : In the event we file an action against you claiming you breached this Agreement and seeking to recover liquidated damage and/or other relief, and we prevail, we shall be entitled to recover reasonable attorney’s fees in addition to any damages or other relief which we may be awarded.
- Disclaimers : We disclaim and are not responsible for the behavior of any advertisers, linked websites or other users.
- U.S. Export Controls : The software that supports the Services (the “Software”) is further subject to United States export controls. None of the Software may be downloaded or otherwise exported or re-exported in violation of United States export laws. Downloading or using any of the Software is at your sole risk.
- Restricted Rights : Notice to U.S. Government End Users. The Software, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable, consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable. The Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Published and Unpublished rights are reserved under the copyright laws of the United States. Manufacturer is BridesView, Inc., 1300 Sovereign Row, Oklahoma City, OK 73127.
- Reporting Violations : If you become aware that any other person is violating any of the terms and conditions of this Website, please notify us immediately. If you believe that any person has posted material in violation of any copyrights that you may have, you may notify us in accordance with our Copyright Policy. If you believe that any user of this Website has posted materials in violation of any other rights that you may have, you may notify us in accordance with our Removal Policy.
- Assignments : You may not assign any of your rights hereunder. We may assign all rights to any other individual or entity at our discretion.
- Compliance With Law : In using the Services, you agree that you will comply with all applicable laws.
(Applies to All Members to the extent they Use Tailwind to Send Any Form of Email to Residents of the European Economic Area (“EEA”) Which Is Composed of the Members of the European Union (“EU”) Together with Iceland, Norway and Liechtenstein)
- Warranties of Compliance
- You represent and warrant that in compiling your Email distribution list,
sending Emails via the Tailwind Services (or third party partners of
Tailwind) and collecting information as a result of individuals visiting
your website or otherwise, with respect to your customers and potential
customers who reside in the EEA, you:
- (b) Represent and warrant that you have complied, and will comply, with all data protection and privacy laws and regulations applicable to the countries in which you are sending any form of email via Tailwind including, for example, with respect to the United Kingdom, the Data Protection Act, and the regulations relating to the European Union Privacy and Electronic Communications Directive. In this regard, you represent and warrant that you have collected, stored, used and transferred all data relating to any individual in accordance with all data protection laws and regulations relating to the country in which such individual resides and obtained all necessary consents to enable Tailwind to receive and process that data and forward communications to that individual on your behalf.
- You further agree to indemnify and hold us harmless from any losses, including attorney fees, resulting from your breach of any part of the foregoing warranties.
- You represent and warrant that in compiling your Email distribution list, sending Emails via the Tailwind Services (or third party partners of Tailwind) and collecting information as a result of individuals visiting your website or otherwise, with respect to your customers and potential customers who reside in the EEA, you:
(Additional Provisions Applicable to All Members)
- Force Majeure : We shall not be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond our control and without our fault or negligence, such as acts of God, acts of civil or military authority, then current laws and regulations and changes thereto, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances, unusually severe weather conditions, acts of hackers and other illegal activities of third parties, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation or telecommunications common carriers or overloading or slow downs over the internet or any third party internet service providers.
- Survivability : The ownership and proprietary rights provisions set forth in this Agreement, and any other provisions that by their sense and context the parties intend to have survive, shall survive the termination of this Agreement for any reason.
- Severability : The unenforceability or invalidity of any term, provision, section or subsection of this Agreement shall not affect the validity or enforceability of any remaining terms, provisions, sections or subsections of this Agreement, but such remaining terms, provisions, sections or subsections shall be interpreted and construed in such a manner as to carry out fully the intention of the parties hereto.
- Interpretation : The fact of authorship by or at the behest of a party shall not affect the construction or interpretation of this Agreement.
- Further Actions : You agree to execute any and all documents and take any other actions reasonably required to effectuate the purposes of this Agreement.
- Notification of Security Breach : In the event of a security breach that may affect you, or individuals listed on one or more of your Email distribution lists (each a “List”), we will notify you of the breach and provide a description. In the event we reasonably determine, and notify you, that it is necessary for all or part of such information to be forwarded on to individuals on one or more of your Lists, you will promptly forward such information to the individuals on such List or Lists.
- Amendments : No amendment or other change of this Agreement shall be effective unless and until the revised Agreement is posted by us on the Website.
- Notices : Any notice to you will be effective when sent to the last email or physical address you have given us or posted on our Website. Any notice to us will be effective when delivered to us with a copy to our outside counsel: Charles Torres, Lowenstein Sandler P., 1251 Avenue of the Americas New York, New York 10020 or CTorres@lowenstein.com or such replacement addresses as we may later provide on the Website.
- No Changes in Agreement at Request of Member :We cannot, as a practical matter, change this Agreement for any one Member or group of Members. One reason we are able to offer our Services at a low price is that we are able to use this Agreement to reduce our financial risks.