1. Acceptance of Terms
1.1. Please read these Terms & Conditions ("Terms") carefully before using the https://folderly.com/ & https://app.folderly.com/ website (the “Website”) as well as the services provided through them (together with the Website - the "Service") operated by Folderly Inc. ("us", "we", "our", or the "Company"), as these Terms govern the relationship between you and the Company regarding your use of the Service.
1.2. THESE TERMS APPLY TO ALL VISITORS, USERS AND OTHERS WHO WISH TO ACCESS OR USE THE SERVICE. YOUR ACCESS TO AND USE OF THE SERVICE IS CONDITIONED UPON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS. BY ACCEPTING THESE TERMS, ACCEPTING ANY ENTERPRISE PROPOSAL OR EXECUTING ANY MSA REFERENCING THIS AGREEMENT, OR BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THESE TERMS AND THAT YOU HAVE THE FULL AUTHORITY TO ENTER INTO AND BIND YOURSELF TO THE TERMS. IF THE INDIVIDUAL ACCEPTING THESE TERMS IS DOING SO ON BEHALF OF ANY LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS. IF THE INDIVIDUAL ACCEPTING THESE TERMS DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS, SUCH INDIVIDUAL MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICE.
1.3. The Company may offer you to accept separate offer(s) (the “Enterprise Proposal(s)”) or execute separate agreement(s) (“Master Service Agreement(s)”) governing the use of the Service. All such Enterprise Proposals and Master Service Agreements shall constitute an integral part of these Terms between you (or represented legal entity) and Company, whereas all matters relating to the Service and not governed by the relevant Enterprise Proposals and Master Service Agreements shall be governed by these Terms. If there is any conflict in provisions between the Enterprise Proposal / Master Service Agreement and these Terms, the former shall prevail.
1.4 THESE TERMS CONTAIN LIMITATION OF LIABILITY (SECTION 10) AND DISCLAIMER OF WARRANTIES (SECTION 11). IF YOU DISAGREE WITH ANY PART OF THE TERMS, THEN YOU SHOULD NOT ACCESS OR USE THE SERVICE.
1.5. We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material we will provide you with a prior notice before any new Terms take effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Service after any revisions become effective, you agree to be bound by the revised Terms. If you do not agree with the new Terms, you are no longer authorized to use the Service.
2. Service & Account Registration
2.1. Through the Service, the Company will provide you with certain email support and deliverability services as presented by us on the Website (or as specified in the accepted Enterprise Proposal or signed Master Service Agreement, if applicable).
2.2. Once you order the Service through the Website or by accepting the Enterprise Proposal, Company reserves the right to refuse or cancel it at any time without our liability and for any reasons, including without limitation, services unavailability, your suspected activity, errors in description or prices for Service, or errors in your order. In this case, the Company will refund paid Service Fees (if any) to you for the unprovided Service.
2.3. We will modify the Service from time to time, including by adding or deleting features in order to improve your customer experience. In this case, the Service may temporarily be unavailable due to scheduled downtime for upgrades and maintenance, in which case we shall use our reasonable efforts to notify you in advance. Company reserves the right to modify, update or suspend the Service without notice or our liability.
2.4. When you upload your content to the Service, the Company will make regular backups of such content. Nevertheless, we do not guarantee there will be no loss or corruption of data. The Company will provide support and attempt to troubleshoot any known or discovered issues that may affect the backups of content. However, you acknowledge that the Company has no liability related to the integrity of content or the failure to successfully restore content to a usable state.
2.5. You acknowledge that the timely, complete and accurate provision of the Services requires information and assistance from you and your representatives, and that Company’s ability to provide the Service is dependent upon the same. Accordingly, you shall use your best efforts to provide the Company with all information and assistance that is reasonably necessary to provide the Service.
2.6. In order to use some functionality of the Service, you will need to register your account or create sub-accounts / seats. When you create an (sub-)account or seat with us, you guarantee that the information about you (or represented legal entity) is accurate, complete and current at all times, and that you are authorized to create this account on behalf of represented legal entity (if applicable). Inaccurate, incomplete, or obsolete information may result in the immediate termination of your (sub-)account or seat on the Service.
2.7. You shall not provide access to the account to any third parties, except for representatives of your company. If the Service offers you to create (sub-)accounts or seats in the main account, only one person within your company can use such (sub)-account or seat. You are solely responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree to accept responsibility for any and all activities or actions that occur under your (sub-)account or seat. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your (sub-)account or the seat.
2.8. We reserve the right to suspend or terminate your (sub-)account or seat, or your access to the Service, with or without notice to you, in the event that you breach these Terms.
3. Payments & Subscriptions
3.1. Certain functionality of the Service may be offered for fees (the “Service Fees”), either for one-time payment or on a subscription basis (the "Subscription"), as presented by us on the Website (or as specified in the accepted Enterprise Proposal or executed Master Service Agreement if applicable).
3.2. All Service Fees payable under these Terms are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts.
3.3. You shall pay Service Fees upfront within fourteen (14) calendar days from the date of invoice issued, but in any case before the commencement of paid Service. All payments shall be made in full and cleared funds without any set-off, counterclaim, deduction or withholding.
3.4. In case of the late payment of Service Fees, you shall pay simple interest at the rate of six percent (6%) per annum and calculated based on a 360-day year, the amount that is past due and the number of calendar days from the initial due date and until paid.
3.5. If you wish to pay the Service Fees online and not via bank transfer (the “Online Purchase”), you may be asked to supply certain information necessary to handle the Online Purchase, including, without limitation, your (or represented legal entity’s) credit card number, your name and billing address. By proceeding with the Online Purchase, you represent and warrant that: (i) you have the legal right to use any credit card(s) or other payment method(s) in connection with the Online Purchase; and that (ii) the information you supply to us is true, correct and complete.
3.5. The Service may employ the use of third-party services for the purpose of facilitating payment and the completion of the Online Purchase. By submitting your information as specified in the preceding clause, you grant us the right to provide the information to these third parties subject to our Privacy Policy.
3.6. If you choose Subscription, you shall pay the Service Fees upfront on a monthly basis, unless otherwise presented in the price description on the Website or in the Enterprise Proposal / Master Service Agreement (“Subscription Period”). AT THE END OF EACH SUBSCRIPTION PERIOD, YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW UNLIMITED TIMES UNDER THE EXACT SAME CONDITIONS AND YOU WILL HAVE TO PAY SERVICE FEES FOR EACH SUBSCRIPTION PERIOD UNTIL YOU CANCEL THE SUBSCRIPTION AS SPECIFIED IN SECTION 4 BELOW.
3.7. By submitting the necessary information for the Online Purchase of the Subscription, you authorize the Company to automatically charge all Service Fees for each Subscription Period. Should automatic billing fail to occur for any reason, we may issue an electronic invoice and request you to pay Service Fees as specified in clause 3.3 above.
3.8. The Company may also provide you with discounts on the Service Fees under the terms and conditions presented on the Website or accepted Enterprise Proposal / executed Master Service Agreement (“Discount”). Please note that the Discounts are effective only for the Initial Contract Period (as defined in Section 4 below), unless otherwise stated in the Enterprise Proposal / Master Service Agreement.
3.9. Due to the nature of the Service, all payment obligations are non-cancelable and all Service Fees paid are non-refundable. When you decide to upgrade the level of Service, you shall pay the difference between updated and previous Service Fees as specified in clause 3.3 above. When you decide to downgrade the level of Service, the difference between updated and previous Service Fees is non-refundable and you will pay the updated Service Fees in the next Subscription Period.
3.10. We may also modify the Service Fees for the Subscriptions in any time and in our sole discretion, unless the fixed price is stated in the accepted Enterprise Proposal / executed Master Services Agreement, if applicable. Any fee change will become effective at the end of the then-current Subscription Period. We will provide you with a reasonable prior notice of any change in Subscription fees to give you an opportunity to cancel your Subscription before such change becomes effective. Your continued use of the Service after the Service Fee change comes into effect constitutes your agreement to pay the modified Service Fee amount.
4. Term & Termination
4.1. These Terms shall become effective from the date you first accessed or used the Service and be valid until terminated as set forth herein. Company and you may agree on another validity term in the Enterprise Proposal or Master Service Agreement, provided that such term will automatically renew unlimited times for the length of the initial term until you terminate it.
4.2. Company and you may also agree on the pilot term period (i.e. different from Subscription Periods) in the Enterprise Proposal or Master Service Agreement, during which you covenant to purchase a certain amount of Subscriptions in consideration for Discounts or other satisfactory terms (“Initial Contract Period” or “SOW Term”). The Enterprise Proposal / Master Service Agreement may also specify different rules on cancellation of Subscription / termination of the Terms and refund of paid Service Fees during the Initial Contract Period.
4.3. Company may cancel any or all of the Subscriptions or terminate the Terms immediately (i) without any cause or (ii) in case of late payment of Service Fees, breach of Acceptable Use Policy, or any other breach of these Terms. In case of Company’s cancellation / termination without cause, Company will refund you a prorated amount of Service Fees for the remaining days of the then active Subscription Period.
4.4. UNLESS OTHERWISE STATED IN THE ENTERPRISE PROPOSAL / MASTER SERVICE AGREEMENT, YOU MAY ALSO CANCEL ANY OR ALL OF THE SUBSCRIPTIONS OR TERMINATE THE TERMS WITHOUT ANY CAUSE BY PROVIDING COMPANY WITH AT LEAST 1 (ONE) MONTH’ PRIOR WRITTEN TERMINATION NOTICE. IF TERMINATION NOTICE IS PROVIDED SO THAT THE TERMINATION WILL OCCUR IN THE NEXT SUBSCRIPTION PERIOD, YOU SHALL PAY THE SERVICE FEES FOR THE WHOLE PERIOD OF NEXT SUBSCRIPTION PERIOD.
4.5. Sections 3-13 shall survive any termination of these Terms, Enterprise Proposal, or Master Service Agreement (if applicable).
5. Intellectual Property & Data Protection
5.1. The Service and its original content, features and functionality are and will remain the exclusive property of Company and its licensors. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Company.
5.2. Subject to these Terms, we grant you a non-exclusive and revocable license (without the right to transfer, assign or sublicense) to use the Service solely for your internal business purposes.
5.3. You represent, warrant and covenant that your use of the Service will be consistent with the foregoing license and will not infringe or violate any right of any other party or breach applicable laws.
5.4. Any data, text or other material that you may submit to us or to the Service ("User Content") remain your intellectual property, and we do not claim any ownership of the copyright or other proprietary rights.
5.5. You grant Company a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, transferable and sublicensable right to use the User Content solely to provide the Service.
5.6. In case of providing feedback to us, you grant us a worldwide, perpetual, non-exclusive, irrevocable, royalty-free, transferable and sublicensable right to use it without restriction. You also grant us the same right to add your name and company logo to our customer list and website.
5.7. Company will ensure that its use of User Content will be consistent with Company’s Security Policy.
5.8. To the extent that your User Content consists of personal data, you shall also ensure that (i) your collection and further processing of such User Content is consistent with applicable privacy laws and (ii) you obtained consent or have other legal basis for data processing enabling Company to use User Content for the provision of Service.
6. Links To Other Websites
6.1. Our Service may contain links to third-party websites or services that are not owned or controlled by us. We have no control over and assume no responsibility for the content, privacy policies, or practices of any third-party websites or services. We do not warrant the offerings of any of these entities/individuals or their websites. You acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such third-party websites or services. We strongly advise you to read the terms and conditions and privacy policies of any third-party websites or services that you visit.
6.2. Our Service may also enable integration with the range of third-party websites or services, as presented on our Website. You acknowledge and agree that your use of these websites and services will be subject to the terms and conditions and privacy policies of the relevant third parties and that we shall not be liable for your enablement, access or use of the third-party services, including your data processed by the relevant third party.
7. Confidentiality
7.1. You and Company shall not to use any Confidential Information (as defined below) disclosed to each other for any purpose other than the performance of these Terms. Company and you agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than our agents or persons to whom we consent to such disclosure.
7.2. Definition of Confidential Information. “Confidential Information” means any information, technical data or know-how, including, but not limited to, information relating to business and product or service plans, financial projections, customer lists, business forecasts, sales and merchandising, human resources, patents, patent applications, computer object or source code, research, inventions, processes, designs, drawings, engineering, marketing or finance to be confidential or proprietary or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Confidential Information does not include information, technical data or know-how that: (i) is in the documented possession of you or Company at the time of disclosure; or (ii) becomes part of the public knowledge or literature, not as a direct or indirect result of any improper inaction or action of the recipient. Notwithstanding the foregoing, we may disclose Confidential Information with the prior written approval of the other respective Party or pursuant to the order or requirement of a court, administrative agency or other governmental body.
8. Other User Obligations
8.1. You acknowledge and agree that your use of the Service will be consistent with Folderly’s Acceptable Use Policy.
8.2. You also represent and warrant that:
You are neither subject to the sanctions of the United Nations, United States, the European Union or the United Kingdom nor located in any of the countries or territories that are subject to these sanctions;
You are not listed in the US government list of prohibited or restricted parties and you are not located in a country which is designated by the US government as “terrorist supporting” country;
You will not directly or indirectly export, re-export, transfer the Service to prohibited countries or individuals or permit to use the Service by such countries or individuals.
9. Indemnification
9.1. You agree to defend, indemnify and hold harmless Company and its licensee and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees), resulting from or arising out of a) your use and access of the Service, by you or any person using your account and password, or b) a breach of these Terms or Acceptable Use Policy.
9.2. A party seeking indemnification under this Section 9 (the “Indemnified Party”) shall give the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt Notice of the relevant claim; provided, however, that failure to provide such Notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party's expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party's rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
10. Limitation of Liability
10.1. IN NO EVENT SHALL COMPANY, NOR ITS DIRECTORS, EMPLOYEES, PARTNERS, AGENTS, SUPPLIERS, OR AFFILIATES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICE; (III) ANY CONTENT OBTAINED FROM THE SERVICE; AND (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
10.2. YOU ALSO AGREE THAT OUR MAXIMUM LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM THE USE OF THE SERVICE IS LIMITED TO THE AMOUNTS YOU HAVE PAID TO THE COMPANY FOR THE SERVICE FOR THE PRECEDING THREE (3) MONTHS BEFORE THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE TERMS BETWEEN COMPANY AND YOU.
11.3. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE LIMITATIONS ABOVE MAY NOT APPLY TO YOU.
11. Disclaimer of Warranties
11.1. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR COURSE OF PERFORMANCE. WE AND OUR SUBSIDIARIES, AFFILIATES, AND OUR LICENSORS DO NOT WARRANT THAT A) THE SERVICE WILL FUNCTION UNINTERRUPTED, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; B) ANY ERRORS OR DEFECTS WILL BE CORRECTED; C) THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR D) THE RESULTS OF USING THE SERVICE WILL MEET YOUR REQUIREMENTS.
11.2. NOT ALL INFORMATION DESCRIBED IN THE SERVICE IS SUITABLE FOR EVERYONE AND DOES NOT GUARANTEE ANY DESIRABLE RESULT.
11.3. WE ALSO DO NOT WARRANT THAT THE SERVICE WILL BE ACCESSIBLE, APPROPRIATE OR LEGALLY AVAILABLE FOR USE IN YOUR JURISDICTION. YOU ACCESS THE SERVICE AT YOUR OWN INITIATIVE AND RISK AND ARE RESPONSIBLE FOR COMPLIANCE WITH APPLICABLE LAWS.
12. Governing Law & Jurisdiction
12.1. These Terms shall be governed and construed in accordance with the laws of Delaware, United States, without regard to its conflict of law provisions.
12.2. Any dispute arising out of or in relation to these Terms and the Service shall be subject to the exclusive jurisdiction of the Delaware courts. You acknowledge and agree that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
12.3. Subject to the choice of forum stipulated above, you will negotiate with Company in good faith to attempt to resolve any disputes. If such good faith negotiations do not resolve the dispute within sixty (60) calendar days of the first notice of dispute, the Parties will proceed as agreed above.
13. Miscellaneous
13.1. Unless otherwise stated herein, these Terms (and accepted Enterprise Proposals / executed Master Service Agreements, if applicable) represent the entire agreement between you and Company regarding your use of the Service and shall supersede all prior agreements or representations regarding such subject matter.
13.2. The rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law. No delay or failure to require the performance of any provision of these Terms shall constitute a waiver of that provision as to that or any other instance.
13.3. We shall not be liable for any failure to comply with these Terms to the extent that such failure arises from factors outside our reasonable control.
13.4. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the rights and obligations shall be construed and enforced as if these terms did not contain the particular term or provision held to be invalid, illegal, or unenforceable.
13.5. Nothing herein shall imply a partnership, joint venture, or principal and agent relationship between you and Company. You shall not have any right, power, or authority to create any obligation, expressed or implied, on behalf of the Company.
13.6. These Terms are a contract for the provision of services instead of a contract for the sale of goods. You acknowledge and agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG), Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any other similar legislation as may be enacted shall not apply to this Agreement.
13.7. All notices, requests, consents, claims, demands, waivers, and other similar communications under these Terms shall be sent in writing. YOU ACKNOWLEDGE AND AGREE THAT ALL OUR COMMUNICATION WITH YOU AT THE SERVICE, INCLUDING WITHOUT LIMITATION, THROUGH THE WEBSITE OR EMAIL, IS AN ELECTRONIC COMMUNICATION THAT IS EQUIVALENT TO COMMUNICATION IN WRITING AND SHALL HAVE THE SAME FORCE AND EFFECT AS COMMUNICATION WRITTEN AND SIGNED BY THE PARTIES. YOU ALSO ACKNOWLEDGE AND AGREE THAT BY CLICKING ON BUTTONS LABELED “CONTINUE”, “PAY”, “REGISTER” OR SIMILAR LINKS OR BUTTONS, YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT.
14. Contact Us
If you have any questions about these Terms and Conditions, you can contact us:
By email: support@folderly.com
By visiting this page on our website: https://folderly.com
By mail: 8 The Green, STE 300 Dover, DE 19901