BENCHMARK TERMS OF USE

I. Introduction and Acceptance

Welcome to Benchmark Email! Thank you for choosing our services. By accessing or using Benchmark Email, you agree to these Terms of Use (“Terms”), which form a legally binding agreement between you (“you” or “User”) and Polaris Software, LLC (“Polaris Software,” “Benchmark Email,” “we,” “us,” or “our”).

Please take the time to read these Terms carefully, as they govern your use of our services. If you do not agree to these Terms, you may not access or use Benchmark Email.

 

1. Related Policies

These Terms incorporate the following policies, which you also agree to by using our services:

• Privacy Policy – Explains how we collect, use, and protect your data.
• Anti-Spam Policy – Outlines your responsibilities for complying with anti-spam laws.
• Cookie Policy – Describes how we use cookies and similar technologies.

2. Updates to These Terms

We may update these Terms from time to time to reflect changes in our services or applicable laws. If we make material changes, we will notify you by email or within the Benchmark Email platform. Your continued use of the services after such changes constitutes your acceptance of the updated Terms.

The last effective update to these Terms was on 07/10/26.

3. Global Applicability

Benchmark Email is available to users worldwide. By using our services, you acknowledge and agree to comply with all applicable laws and regulations in your jurisdiction, including but not limited to data protection, anti-spam, and trade compliance laws.

4. Eligibility

To use Benchmark Email, you must:

• Be at least 18 years old or the age of majority in your jurisdiction.
• Have the legal authority to agree to these Terms on behalf of yourself or your organization.
• Use the services for lawful purposes only.
• Provide true, complete, and up-to-date contact and billing information.

5. Questions?

If you have any questions about these Terms, please contact us at support@benchmarkemail.com.

 

II. Definitions

This section provides definitions of key terms used throughout these Terms, such as:

Account: The account created by you to access and use Benchmark Email’s services.
Anti-Spam Policy: The guidelines and rules outlined in our Anti-Spam Policy, which governs your use of the service to prevent spam or unauthorized messages.
Campaign: Any email, message, or marketing communication created and sent using our services.
Content: All information, data, text, graphics, photos, or other materials uploaded, created, or shared by you through the services.
Customer Data: Information, including personal data, that you provide to Benchmark Email or upload to your account in connection with your use of the services.
Hosting Region: The geographical location where your data is stored and processed as part of the services.
Intellectual Property: All trademarks, copyrights, patents, and other proprietary rights owned or licensed by Benchmark Email.
Partner: Third parties who promote Benchmark Email’s services in exchange for discounts and/or compensation.
Personal Data: Any information relating to an identified or identifiable individual, as defined under applicable data protection laws (e.g., GDPR, CCPA).
Service(s): The email marketing and related services provided by Benchmark Email, including any associated features, software, and support.
Service Tier: A Service package or bundle that includes access to certain features, quantities of Subscribers, Campaigns or other factors, and support.
Smart Tools: Features that use generative artificial intelligence capabilities to generate or improve content, including copy, graphics and images.
Subscriber: A person or entity whose email address or other contact information is included in your campaigns or list of contacts.
Sub-processor: Any third party engaged by Benchmark Email to process Personal Data on behalf of the User. A Sub-processor may include service providers, contractors, or other entities that perform services related to the processing of Personal Data.
Third-Party Services: Services, software, or content provided by a third party that may integrate with or be used in connection with our services.
Terms: Refers to these Terms of Use and all related policies referenced herein, including our Privacy Policy, Anti-Spam Policy, and any other referenced documents.
User or You: Any individual or entity accessing or using Benchmark Email’s services.

III. User Responsibilities and Acceptable Use

When using Benchmark Email, you agree to the following responsibilities and guidelines to ensure a safe, compliant, and effective experience for all users:

1. User Responsibility for Compliance

• You will comply with our Anti-Spam Policy
• You are responsible for ensuring compliance with all applicable laws in your jurisdiction, including but not limited to:
  • The CAN-SPAM Act in the United States.
  • The Canada Anti-Spam Law (CASL) in Canada.
  • Any relevant U.S. data protection and privacy laws, including the California Consumer Privacy Act.
  • The General Data Protection Regulation (GDPR) in the European Economic Area.
  • Laws governing marketing communications, advertising, and electronic messaging.
  • Trade sanctions and export controls, including those of the United States. You may not use Benchmark Email if you are located in a restricted country or are prohibited from receiving services under such laws.

• It is your responsibility to obtain all necessary permissions and consents before sending messages to your subscribers.
• All Campaigns must provide accurate information about their purpose and include a clear opt-out mechanism for recipients.
• If you use Third Party Services with Benchmark Email, you are solely responsible for ensuring they comply with applicable laws and these Terms.

 

2. Account and Password

You are responsible for keeping your Account name and password confidential. You are also responsible for any Account that you have access to and any activity occurring in such Account (other than activity that Benchmark Email is directly responsible for that isn’t performed in accordance with your instructions), whether or not you authorized that activity. You’ll immediately notify us of any unauthorized access or use of your Accounts. We’re not responsible for any losses due to stolen or hacked passwords. We don’t have access to your current password, and for security reasons, we may only provide you with instructions on how to reset your password. We have the right to update any of your contact information in your Account for billing purposes. We may contact you, or any authorized user, or login added to your Account, based on the information provided in your Account.

 

3. Prohibited Content

You may not use Benchmark Email to create, upload, or distribute Content that:

• Promotes or sells illegal goods or services.
• Contains hate speech, harassment, or discriminatory language based on race, ethnicity, gender, sexual orientation, religion, or other protected characteristics.
• Encourages violence, threats, or harm to individuals or groups.
• Includes explicit adult content or pornography, including but not limited to sexual goods, videos, magazines, escort services, or similar products or services.
• Promotes loans, credit repair, debt relief services, trading or stock tips, gambling, bet-making or odds-based services, or similar services.
• Spreads false or misleading information, including health, safety, or election-related misinformation.
• Distributes or unleashes nefarious computer or technology related items that include but are not limited to viruses, harmful code, trojans, key-logging software or other types of spyware.
• Promotes, posts or offers services or content that solicit participation in pyramid or ponzi schemes, multi-level or channel (MLM) businesses or services that include but are not limited to work at home jobs, "get rich quick" schemes, services or content that offers ways to "build wealth" or become "financially independent".
• Could be considered threatening, defamatory, libelous or harassing.
• Promotes or solicits material that encourages violence or subterfuge against organizations, governments, groups, individuals or public figures, or sends out or promotes anything that gives instruction or assistance in carrying out violence or behavior.

 

4. Prohibited Actions

You may not:

• Misrepresent your identity, organization, or affiliation when using the services.
• Attempt to gain unauthorized access to Benchmark Email’s services, accounts, or systems.
• Interfere with or disrupt the functionality or integrity of Benchmark Email’s services.
• Collect or harvest personally identifiable information without proper consent.
• Send unsolicited Campaigns or engage in spamming, in violation of our Anti-Spam Policy.
• Send Campaigns to distribution lists, newsgroups, publicly available media addresses or purchased email addresses.
• Distribute any Content not owned by the User including photos, artwork or other content without the express written consent of the owner.
• Distribute any material that identifies or displays images of people without their express written consent.

 

5. API Use

If you access Benchmark Email’s services through our API, you agree to the following:

• API Key Management:
  • You are responsible for securely generating, storing, and managing your API key(s). Benchmark Email is not responsible for unauthorized access caused by compromised keys.
• Authentication:
  • All API requests must include valid authentication credentials. You may not bypass or attempt to circumvent authentication mechanisms.
• Rate Limits:
  • API usage is subject to rate limits to ensure service stability. You agree not to exceed the designated limits or engage in excessive API calls that could degrade platform performance.
• Permitted Uses:
  • The API may only be used for lawful purposes and in compliance with these Terms. You may not use the API to:
  • Scrape, harvest, or extract data without authorization.
  • Disrupt or overload Benchmark Email’s services.
  • Access, modify, or delete data belonging to other users.
• Data Privacy and Security:
  • You must handle any data accessed through the API in compliance with applicable privacy and data protection laws. Unauthorized use or disclosure of data is strictly prohibited.
• Termination of Access:
  • Benchmark Email reserves the right to suspend or terminate API access if you violate these Terms or if your usage poses a risk to the security or performance of the platform.

 

6. Global Trade Compliance

Benchmark Email may not be exported, or re-exported, transferred, or released (a) into Cuba, Iran, North Korea, Syria and the Crimea, Zaporizhzhia, Kerson, Donetsk (“DNR”), and Luhansk (“LNR”) regions of Ukraine) and Russia; or (b) to anyone included in the U.S. Treasury Department’s list of Specially Designated Nationals or on any other applicable restricted party lists in the US or other applicable jurisdictions. By using the Service, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Service for any purposes prohibited by United States law.

7. Enforcement and Consequences

Violations of these provisions may result in Account suspension or termination. We reserve the right to remove or disable access to any content that violates these guidelines or applicable laws.

8. Permission, Consent and Lawful Basis for Recipient Data

Customers are responsible for complying with all laws that apply to their recipients, including privacy, tracking, email marketing and anti-spam laws. Customers must have valid permission, consent or another lawful basis before uploading contacts, sending marketing emails, enabling tracking, or using engagement data for segmentation, profiling, personalization, automation, retargeting, lead scoring or future campaign targeting. Customers may not use purchased lists, scraped lists, misleading sender identity, deceptive subject lines, hidden unsubscribe mechanisms, unlawful tracking, profiling without required consent, or reupload unsubscribed, bounced or complained contacts without valid permission.

 

IV. Service Features and Limitations

Benchmark Email offers a range of tools and features designed to help you create and manage your email marketing Campaigns. While we strive to provide the best possible experience, certain limitations and conditions apply to the use of our services.

1. Service Features

Our Services include tools for creating, managing, and analyzing email marketing Campaigns, along with features such as list management, automation, and analytics. You may use our platform to design and publish signup forms and popups for people to subscribe to your emails. You may use our platform to design and publish landing pages as part of your marketing campaigns. Benchmark Email integrates with various Third-Party Services to enhance functionality. Your use of such integrations is subject to the terms of those providers.

2. Service Tiers

We offer multiple Service Tiers, each providing access to a different set of features or levels of service. Details about specific Service Tiers are available on our website or through your account dashboard. We reserve the right to modify, add, or remove Service Tiers or features as necessary to meet market demands and improve our services.

Certain Service Tiers may include a link to our site or add a button that says "Benchmark Email" , "Trusted Email by Benchmark Email", or other branding in the footer, as long as the button or link does not interfere, obscure or distract from the Campaign or message.

 

3. Limitations

Access to certain features may depend on your selected Service Tier or plan. Some features may have usage limits, such as maximum Subscribers, Campaigns, email sends, or storage capacity, depending on your Service Tier. Any use of the term “unlimited” refers to usage that is reasonable and falls within the confines of industry best practices. If any User surpasses those reasonable limits, we reserve the right to enforce limits to safeguard sending reputation. We may throttle your sending or connection through our API at our discretion. Benchmark will not allow any User to delete a Subscriber within 7 days of a Campaign being sent to it, in order to prevent abuse in regards to high volume sending or misuse of Service Tiers.

4. Generative AI Tools (“Smart Tools”)

Benchmark Email incorporates artificial intelligence within its platform, referred to as “Smart Tools.” These tools are implemented to assist Users in creating email Campaigns and content, analyzing performance, and optimizing sending practices. Smart Tools are part of the Service. When utilizing these Smart Tools, it is your responsibility to ensure that any information, instructions, or content you provide (“inputs") comply with our Terms.
The Smart Tools may generate content, insights, and other assets (“outputs"). However, it is possible that these outputs may be inaccurate or unsuitable for use, and Benchmark Email does not provide any explicit guarantees regarding their accuracy or lack of bias. As a user, you are solely responsible for reviewing and validating these outputs before incorporating them into your Campaigns, landing pages, and other assets, or relying on them for any purpose. It is essential to ensure that the generated content is accurate, legal, and aligns with Benchmark Email’s guidelines. Additionally, you must have the necessary rights to use these outputs and any resulting content, ensuring that you do not infringe upon Benchmark Email's or any third party's intellectual property rights. Benchmark Email utilizes Third-Party Services to provide AI, process inputs, and store outputs in secure environments.

By using the AI tools, you authorize these Third-Party Services to access and handle your inputs and outputs according to their terms and privacy policies. In using the Smart Tools, you grant Benchmark Email a comprehensive license to access, modify, display, distribute, and process all content for various purposes, including the enhancement of the generative AI models and in line with our Privacy Policy. Your inputs and outputs, including Customer Data, may be used for machine learning to improve the AI Tools, our services, and similar products. Please be aware that certain limitations, such as language restrictions or usage constraints, may apply to the availability of Smart Tools. It is your responsibility to comply with these limitations. Benchmark Email reserves the right to modify, suspend, or terminate the Smart Tools or your access to them without prior notice, especially in the event of policy violations. We are not liable for any consequences resulting from such modifications or terminations. To ensure compliance with our Terms of Use, please use our Smart Tools and any generated content responsibly.

5. Service Modifications

We reserve the right to update, enhance, or discontinue any feature or aspect of the Services at any time. We will notify you of significant changes where appropriate.

V. Privacy and Data Protection

Your privacy and the privacy of your Subscribers are important to us. Benchmark Email is committed to protecting your data and ensuring compliance with applicable privacy laws. Please read our Privacy Policy and Cookie Policy for information regarding how we collect, use, and disclose your personal information and the privacy rights available to you when you use and interact with the Service.
By using our services, you agree to the following:

1. Data Protection Laws

Benchmark Email complies with applicable data protection laws, including:

• General Data Protection Regulation (GDPR) for users in the European Economic Area (EEA).
• California Consumer Privacy Act (CCPA) for California residents.
• Other applicable privacy and data protection laws in regions where our services are offered.

2. Roles and Responsibilities

You as the Data Controller:

• You determine the purposes and means of processing your Subscribers’ Personal Data.
• You are responsible for obtaining all necessary consents from your Subscribers and ensuring compliance with applicable laws.

Benchmark Email as the Data Processor:

• We process Personal Data on your behalf, following your instructions and applicable laws.
• Benchmark Email will protect your data in accordance with our Privacy Policy.

 

3. Data Processing Addendum (DPA)

If you process Personal Data subject to GDPR or other similar laws, our Data Processing Addendum (DPA) governs how we handle such data.

4. Sub-Processors

Benchmark Email may engage Sub-processors to assist in providing certain aspects of our Services, including the processing of Personal Data. Our use of Sub-processors is described in our Data Processing Addendum.

5. User Responsibilities

As a user of Benchmark Email, you agree to:

• Collect, process, and use Personal Data in compliance with all applicable privacy and data protection laws.
• Clearly inform your Subscribers about how their data will be used and obtain their explicit consent where required.
• Respond to data subject requests (e.g., access, correction, or deletion) in accordance with applicable laws.

6. Data Security

Benchmark Email takes reasonable technical and organizational measures to protect your data from unauthorized access, loss, or misuse. While we strive to maintain a secure environment, you are responsible for safeguarding your Account credentials and ensuring that your systems are secure.

7. Data Retention

We retain your data only as long as necessary to provide our services or comply with legal obligations. Upon termination of your Account, we will delete your data in accordance with our Privacy Policy, except where retention is required by law.

8. Cross-Border Data Transfers

Benchmark Email may process and store data in different Hosting Regions worldwide. If required, we will use appropriate safeguards, such as standard contractual clauses, to ensure compliance with cross-border data transfer regulations.

9. Communications

In order to properly support you, we occasionally need to contact you and may do so in a variety of ways such as via text message, email or messaging functionality in the Service. We want to provide you with options for receiving communications from us, and as such, you may opt-in or opt-out of receiving certain types of communications from us or sign up to receive certain kinds of messages from us.

You understand and agree that we may use your telephone number for "multi-factor authentication" ("MFA"), to confirm your identity and help protect the security of your Account. Part of the MFA identity verification process may involve Benchmark sending messages containing security codes to your telephone number or email address. You agree to receive these messages containing security codes as part of the MFA process.

Benchmark has the right to monitor and/or record its phone conversations, chats, text messages, and emails with you for quality control, for training purposes, and for its own legal protection. You warrant that anyone who has authorization to use your Account likewise consents to such monitoring and/or recording. You agree that none of this obligates Benchmark to record any communication from you, and you acknowledge that some communications will not be recorded or be available to be retrieved.

10. Right to Monitor

We may view, copy, and internally distribute Content, your Third-Party Services and your Account to create algorithms and programs that help us spot problem Accounts and improve the Service, among other uses permitted by these Terms or our Privacy Policy. For instance, we use these methods to find Users who violate these Terms or applicable laws and to study data to improve the Service. We may aggregate and anonymize data, including data from Content and Third-Party Services to create statistical information. We own all such aggregated and anonymized data and may use it, including, but not limited to, operating, analyzing, improving, or marketing our products and services and sharing such data externally for research, marketing, or other lawful purposes. We reserve the right to block or delete any Campaigns or messages, delete Content including registration for events, promotions, deals, or social campaigns, if we determine that it violates the Terms or applicable laws.

VI. Payment Terms

By subscribing to Benchmark Email, you agree to the following payment terms. Please review these terms carefully, as they outline important details regarding billing, renewals, refunds, and plan changes.

1. Subscription Plans

We may offer a free Service Tier of Benchmark Email with limited capabilities. This Service Tier is accessible indefinitely, subject to these Terms. We may offer a free trial of paid features for a limited period. After the trial ends, continued use of those features requires a paid subscription. Failure to upgrade to a paid Service Tier may result in a loss of access to certain features or data.

Paid Service Tiers provide access to additional features and capabilities. Details about available Service Tiers, plans and pricing are provided on our website or within your Account dashboard.

2. Billing and Automatic Renewals

Paid subscriptions are billed in advance on a monthly or yearly basis, depending on the plan you select. Your subscription will automatically renew at the end of each billing cycle unless you cancel your Account before the renewal date. You are responsible for maintaining accurate and up-to-date payment information in your Account. If we are unable to process a scheduled automatic payment, we will attempt to notify you. Your Account may be temporarily suspended if the payment is not successfully processed.

 

3. Plan Changes

If you upgrade to a higher-priced Service Tier, you will be charged a prorated amount for the remainder of the current subscription period. The new, higher price will apply with the next billing cycle. If you downgrade to a lower-priced Service Tier, the new price will take effect at the start of the next billing cycle. We do not provide refunds or credits for the unused portion of the current period.

4. Cancellation and Refunds

You may cancel your subscription at any time. Cancellations will take effect at the start of the next subscription period, and you will retain access to the Services until the end of the current period. Refunds for the unused portion of the current subscription period are not provided unless required by law. For free plans, you may cancel your Account at any time without incurring charges.

5. Price Changes

We reserve the right to change pricing for Service Tiers. If we change the price of your plan, we will notify you in advance, including the new prices and their effective date.

6. Discounts

Special discounts through our Partners may not continue to apply if you do not remain a customer of that Partner. You agree that Benchmark may rely on its Partners for information regarding your Benchmark Account.

7. Taxes

All published prices are exclusive of applicable taxes. You are responsible for any taxes, duties, or other charges imposed by your local government. Benchmark may need to collect taxes from you based on local laws, including (but not limited to) jurisdictions that levy taxes on software that is delivered as a service and where Benchmark has a legal physical presence. The address that you provide to Benchmark will determine any jurisdictional taxes.

8. Payment Disputes

If you believe a charge was made in error, please contact us at support@benchmarkemail.com within 60 days of the charge. Disputes raised after this period may not be considered.

VII. Termination and Suspension

Benchmark Email reserves the right to terminate or suspend your Account if you violate these Terms or engage in activities that harm the integrity of our services. The following outlines our policies regarding termination and suspension:

1. Grounds for Termination or Suspension

We may terminate or suspend your Account immediately, without notice, if we determine that you have:

• Violated these Terms of Use, including our Anti-Spam Policy or applicable laws such as the CAN-SPAM Act.
• Used the services to engage in fraudulent, illegal, or unethical activities.
• Sent spam or other unauthorized communications that harm the reputation of our services or violate anti-spam laws.
• Compromised the security, performance, or functionality of our platform.

2. Voluntary Account Termination

• You may cancel your subscription at any time by following the instructions in your account settings or by contacting our support team.
• Your Account will remain active until the end of the current subscription period, at which point it will be terminated.

3. Suspension

In cases of suspected misuse or violation, we may temporarily suspend your Account to investigate the issue. During suspension, access to your Account and associated data may be restricted. If the investigation confirms a violation, your Account may be terminated.

 

4. Free and Inactive Accounts

If you do not log into your Account for more than 365 days, Benchmark reserves the right to terminate said Account and delete all data therein. In addition, Benchmark reserves the right to terminate any free user Account, when there has not been a login for the past 90 days.

5. Post-Termination

Upon termination, you will lose access to your Account and all associated data. We recommend exporting or backing up any important data before cancellation or termination, as we are not obligated to retain your data after termination, except as required by law. Any outstanding fees or charges will remain due, and you are responsible for settling them promptly.

6. Appeals and Reinstatement

If you believe your Account was terminated or suspended in error, you may contact us at support@benchmarkemail.com. We will review your case and, at our sole discretion, determine whether to reinstate your Account.

7. Notification

Where possible, we will notify you in advance of termination or suspension. However, in cases of severe misuse or legal violations, immediate action may be taken without notice.

VIII. Partner Program

1. Eligibility

Participation in the Benchmark Email Partner Program is subject to approval. Benchmark Email reserves the right to accept or reject any application at its sole discretion. To participate, you must comply with these Terms of Use and any additional requirements outlined in the Partner Program guidelines.

2. Partner Responsibilities

As a partner, you agree to:

• Promote Benchmark Email’s services in a manner consistent with these Terms and applicable laws.
• Use marketing materials provided by Benchmark Email only for the purposes of promoting the platform.
• Avoid engaging in deceptive, unethical, or illegal practices while representing Benchmark Email.

3. Partner Payment Policy

Benchmark Email will compensate partners according to the commission structure detailed in the Partner Program Agreement, which may be updated from time to time. Payment eligibility is contingent on meeting the criteria specified in the Partner Program guidelines. Unless otherwise specified, a Partner will be paid on a monthly basis, given the Partner's earnings total $30 or more. If the commissions are less than $30 in an individual month, the earnings will rollover to the following month's payment. Payments are made via ACH, Paypal or check (US banks only). International wires are subject to a $40 wire fee.

Partners must submit all necessary forms to receive payment for their commissions. If this has not been completed after 45 days, commissions will be forfeited. Other circumstances that may result in a forfeiture of payment include Account suspension or termination. Commissions will expire after a duration of 2.5 years or when a referral terminates paid service with Benchmark Email, whichever comes first.

Benchmark Email reserves the right to withhold or adjust payments in cases of suspected fraud, violation of these Terms, or failure to comply with Partner Program requirements.

4. Termination of Partnership

Either party may terminate participation in the Partner Program at any time, with or without cause, by providing written notice. Benchmark Email reserves the right to suspend or terminate your participation immediately if:

• You violate these Terms or the Partner Program guidelines.
• Your activities harm Benchmark Email’s reputation or integrity.

Upon termination, you must cease using Benchmark Email’s marketing materials and remove any references to the program.

5. Confidentiality

As a partner, you may have access to confidential information about Benchmark Email, including marketing strategies, pricing structures, and Customer Data. You agree to:

• Keep such information confidential and use it solely for purposes related to the Partner Program.
• Not disclose or share confidential information with any third party without prior written consent.

6. Modifications to the Program

Benchmark Email reserves the right to modify or discontinue the Partner Program at any time. Significant changes will be communicated to partners in advance when possible.

IX. Third-Party Services

1. Use of Third-Party Services

Benchmark Email integrates with various third-party tools and services to enhance functionality and provide additional features.

By using these Third Party Services, you acknowledge that:

• Third-Party Services are governed by their own terms of use and privacy policies, which you are responsible for reviewing.
• Benchmark Email is not responsible for the availability, functionality, or performance of Third-Party Services.

2. User Responsibilities

You are solely responsible for ensuring that your use of Third-Party Services complies with applicable laws, including data protection and privacy regulations. If you choose to connect a third-party tool to your Benchmark Email Account, you must ensure that you have the necessary rights and permissions to do so.

3. Liability Disclaimer

Benchmark Email disclaims all liability for any damages, losses, or issues arising from:

• The use of Third-Party Services or tools.
• Errors, malfunctions, or security vulnerabilities caused by Third-Party Services or integrations.

Benchmark Email does not provide warranties or guarantees regarding the compatibility or performance of Third-Party Services.

4. Updates and Support

Benchmark Email may modify, suspend, or discontinue support for Third-Party Services at any time without notice. You acknowledge that changes to Third-Party Services may impact the functionality of the integration with Benchmark Email.

5. Termination of Access

Benchmark Email reserves the right to disable or remove any Third-Party Services that violates these Terms of Use or poses a risk to the security or performance of our services.

X. Intellectual Property

1. Ownership of Services

All rights, title, and interest in and to the Benchmark Email platform, including software, trademarks, logos, and other intellectual property, are owned by Benchmark Email or our licensors. We grant you a limited, non-exclusive, non-transferable license to access and use the services for your personal or business purposes in compliance with these Terms.

2. User Content

You retain ownership of the content you create, upload, or distribute through Benchmark Email (“Content”). By using our services, you grant Benchmark Email a worldwide, royalty-free, non-exclusive license to store, process, display, and distribute your Content as necessary to provide the services. You represent and warrant that you have the rights to upload and distribute your Content and that it does not infringe on any third-party intellectual property rights.

3. Third-Party Intellectual Property

You may not use Benchmark Email to upload, distribute, or use content that violates third-party intellectual property rights, including copyrights, trademarks, or patents. If we receive a claim that your Content infringes on third-party rights, we reserve the right to disable access to the content or terminate your Account.

4. Copyright Infringement and DMCA Compliance

If you believe your intellectual property rights have been infringed by a user of our services, please contact us with a detailed notice of the alleged infringement. We will respond to copyright infringement notices in accordance with the Digital Millennium Copyright Act (DMCA) and other applicable laws.

Our copyright agent and info is:

Curt Keller
Polaris Software, LLC
3636 S. Geyer Road, Suite 100
St Louis, MO 63127
Email: curt@benchmarkemail.com

For any email submissions or contact, please use the words "copyright infringement request" or "DMCA removal request". To protect the rights of copyright holders, we reserve the right to terminate the Accounts of infringers immediately and without notice.

More specifically, please do the following:

1. Provide an electronic or physical signature of the copyright owner or someone authorized to act on their behalf;
2. The name, address, telephone number, and email address of the copyright owner;
3. Identification of the copyrighted work that is allegedly being infringed;
4. Identification of where the allegedly infringing material is located on our site or services;
5. A statement that you have a good faith belief that the use is not authorized by the copyright owner, its agent or the law; and
6. A statement that the information in your notice is accurate, and you are authorized to act on behalf of the copyright owner. This statement must be made under penalty of perjury.

By submitting the notice, you acknowledge and agree that we may forward the information to the person who uploaded the allegedly infringing material. If you believe that your removed or disabled content is not infringing, or that you have the authorization or right to post and use that content from the copyright owner, the copyright owner's agent, or pursuant to law, you may send a counter-notice containing the information required by Section 512(g)(3) of the DMCA (17 U.S.C. § 512(g)(3)). We will forward your counter-notification to the party who submitted the original copyright infringement claim. If the original claimant does not file an action seeking a court order to restrain you from engaging in infringing activity related to the removed or disabled content within fifteen (15) calendar days of receiving the counter-notice from us, then we may, in our sole discretion, reinstate the removed or disabled content.

 

5. Restrictions

You may not reverse-engineer, decompile, or disassemble any part of the Benchmark Email platform or attempt to access its source code. You may not use Benchmark Email’s intellectual property, including logos or trademarks, without prior written consent, except as expressly permitted by these Terms.

6. Feedback and Suggestions

If you submit feedback, ideas, or suggestions about Benchmark Email, you agree that we may use them without any obligation to you.

Polaris Software, LLC is a member of UnifiedPatents and the LOTNETWORK.

XI. Liability

1. Limitation of Liability

To the fullest extent permitted by law, Benchmark Email and its affiliates, licensors, and service providers are not liable for any indirect, incidental, consequential, special, or punitive damages, including but not limited to lost profits, data loss, or business interruption, arising out of or related to your use of the services. Benchmark Email’s total liability for any claim arising out of or related to these Terms, regardless of the cause of action, is limited to the amount you paid for the services in the one month immediately preceding the event giving rise to the claim.

We are not liable for issues resulting from:

• Your misuse of the services.
• Third-party Services, integrations or content.
• Events outside of our reasonable control, such as force majeure.

2. No Warranties

Except as expressly stated in these Terms, the Service is provided as-is and, to the fullest extent permitted by law, we don’t provide warranties, conditions, or undertakings of any kind in relation to the Service, either express or implied. This includes, but isn’t limited to, warranties of merchantability and fitness for a particular purpose, data loss, merchantability, or non-infringement or any warranties with respect to the accuracy, reliability, or availability of any content or information made available in or through the Service, which are, to the fullest extent permitted by law, excluded from the Terms. Since Users use the Service for a variety of reasons, we can’t guarantee that it’ll meet your specific needs.

3. Indemnification

You agree to indemnify, defend, and hold harmless Benchmark Email, its affiliates, and their respective officers, directors, employees, and agents from and against any claims, liabilities, damages, losses, and expenses, including reasonable legal fees, arising out of or related to:

• Your use of the services in violation of these Terms.
• Any content you upload, send, or distribute through the services, including claims of intellectual property infringement or violations of applicable laws.
• Your breach of any representation or warranty made under these Terms

4. Notification and Cooperation

If a claim arises that requires your indemnification, we will notify you promptly and provide reasonable cooperation in defending against the claim, at your expense. Benchmark Email reserves the right to assume exclusive defense and control of any matter subject to indemnification, and you agree to cooperate with our defense.

XII. Governing Law and Dispute Resolution

1. Governing Law

These Terms of Use are governed by and construed in accordance with the laws of the State of Delaware, USA, without regard to its conflict of law principles. By using Benchmark Email, you agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in Delaware for resolving any disputes.

2. Dispute Resolution

We strive to resolve disputes amicably. If a dispute arises, please contact us at support@benchmarkemail.com so we can attempt to resolve it informally before pursuing further actions.

3. Arbitration

Any dispute or claim arising out of or relating to these Terms, the services, or your use of the platform shall be resolved through binding arbitration administered by a reputable arbitration organization, such as the American Arbitration Association, in accordance with its rules. You agree to resolve disputes with Benchmark Email on an individual basis and waive the right to participate in a class-action lawsuit or class-wide arbitration. Arbitration will take place in Delaware and be conducted in English.

4. Exclusions

The following disputes are not subject to arbitration:

• Claims related to intellectual property rights, such as copyrights, trademarks, or patents.
• Claims that qualify for small claims court, which may be brought in such courts in lieu of arbitration.

5. Finality

The arbitrator’s decision will be final and binding, and judgment on the award may be entered in any court with jurisdiction.

6. International Considerations

If you are located outside the United States, you agree to comply with any mandatory consumer protection laws in your country of residence. However, to the extent permitted by applicable law, these Terms remain subject to Delaware law and the dispute resolution mechanisms described above.

 

XIII. Miscellaneous/General Provisions

1. Updates to These Terms

We may update or modify these Terms from time to time to reflect changes in our services, legal requirements, or other factors. When we make significant changes, we will notify you by email or within the Benchmark Email platform. Your continued use of the services after the changes take effect constitutes your acceptance of the updated Terms.

2. Entire Agreement

These Terms, along with our Privacy Policy, Anti-Spam Policy, and any other referenced documents, constitute the entire agreement between you and Benchmark Email regarding your use of the services. These Terms supersede any prior agreements or understandings, whether written or oral, relating to the subject matter.

3. Severability

If any provision of these Terms is found to be invalid, illegal, or unenforceable, the remaining provisions will remain in full force and effect.

4. Force Majeure

Benchmark Email is not liable for any failure or delay in performance caused by circumstances beyond our reasonable control, including but not limited to:

• Natural disasters (e.g., earthquakes, floods, nuclear accidents).
• Acts of government or legal authority (e.g., changes in laws, regulatory actions).
• Power outages, internet service interruptions, or cyberattacks.
• Acts of hackers.

5. Waiver

Our failure to enforce any right or provision of these Terms does not constitute a waiver of that right or provision. Any waiver must be in writing to be effective.

6. Assignment

You may not assign or transfer these Terms or your rights under them without prior written consent from Benchmark Email. We may assign or transfer these Terms without restriction, including in the event of a merger, acquisition, or sale of assets.

7. Governing Language

These Terms are written in English. If they are translated into another language and there is a conflict, the English version will prevail.

8. Survival

Provisions of these Terms that by their nature should survive termination will remain in effect, including but not limited to payment obligations, indemnification, limitations of liability, and governing law.

9. Notice to U.S. Government End Users

The Service and the Benchmark Email web site, including all documentation, are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, and consist of “Commercial Computer Software” and “Commercial Computer Software Documentation.” The Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. government end users:

• only as Commercial Items,
• with the same rights as all other end users, and
• according to the Terms.
• Published and unpublished rights are reserved under the copyright laws of the United States. The manufacturer is Polaris Software, LLC, 3636 S. Geyer Road, Saint Louis, MO, 63127.