Terms of Use

Terms Version Date: February 28, 2012

These TERMS OF SERVICE (this “Agreement”) is made between MessageGears, LLC (“MessageGears”) and you, or, if you represent an entity or other organization, that entity or organization (in either case “You”).

MessageGears provides certain services relating to the development, transmission, analysis, and management of email messages (the “Services”) through the web site located at www.messagegears.com and such other sites as may be designated by MessageGears (each, the “Site” or collectively, the “Sites”).

All access to and use of the Services available through the Site is subject to the terms of this Agreement. If You wish to access and use the publicly available portions of the Services and the Site, You may do so only in compliance with the terms of this Agreement. If You have placed or later place an order (whether through the Site, by email, phone or otherwise) with MessageGears (Your “Order”) seeking to access and use certain of the Services requiring registration, MessageGears is willing to accept Your Order and provide You with access to and use of those Services only if You comply with the terms and conditions of this Agreement.

Without limiting the foregoing, the Services are not available to individuals under the age of 18 or who do not meet any of the other qualifications included in this agreement.

PLEASE CAREFULLY READ THIS AGREEMENT. BY SUBMITTING AN ORDER OR BY ACCESSING OR USING THE SITE OR SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, MESSAGEGEARS IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE SITE OR SERVICES AND YOU MUST NOT ACCESS OR USE THE SITE OR SERVICES. IF YOU ACCESS OR USE THE SITE OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.

This Agreement is entered into as of the earlier of the date You first submit an Order relating to the Services or first access or use the Services or a Site (the “Effective Date”). This Agreement consists of the following terms and conditions and each Order submitted by You and accepted by MessageGears, each of which is incorporated in and made a part of this Agreement. Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Services and the Sites and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Services and the Sites. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

MessageGears reserves the right, at any time, to change or modify the Site, Services or this Agreement, by making such change or modification available on the Site or by providing other notice to You. Any such change or modification will be effective [30] days after posting on the Site or upon provision of such other notice. As applicable, You will be deemed to have agreed to such change or modification through Your continued use of the Site or Services.

1) Definitions. Terms used in this Agreement will have the definitions given in this Agreement.

2) Orders and Confirmation. All Orders placed by You will be governed by the terms of this Agreement. MessageGears will confirm Your Order either through the Site at the time you submit Your Order or by providing You with access to the Services (each, a “Confirmation”). If the terms of any Order conflict with the terms of any Confirmation of that Order, the terms of the Confirmation will govern and control with respect to the Services provided to You. This Agreement will govern and control the terms of each Order and Confirmation under this Agreement. By accessing or using any of the Services, You agree to be bound by the terms of this Agreement and each applicable Order and Confirmation with respect to those Services.

3) Term. This Agreement will be effective upon the Effective Date. If You have ordered a trial subscription to the Services or a subscription to any free Services, as indicated in an applicable Order or Confirmation (a “Trial/Free Subscription”), then the term of this Agreement will continue for the period of the Trial/Free Subscription indicated in the applicable Order or Confirmation and will thereafter expire unless You place an Order for a non-trial subscription to the Services prior to the completion thereof. If You have ordered a non-trial subscription to the Services, then the term of this Agreement will continue for the initial period stated in the applicable Order or Confirmation for the Services and will thereafter automatically renew for successive additional periods of equal duration. If no initial period is stated in the applicable Order or Confirmation for the Services, this Agreement will continue for an initial period of 1 month and will thereafter automatically renew for successive additional 1-month periods. Unless terminated as set forth herein, the term of this Agreement will continue to renew until You notify MessageGears that You do not wish to renew the Agreement at least 10 days prior to the end of the then-current period. In all other cases, the term of this Agreement will continue until terminated as set forth herein.

4) Subscription. Subject to this Agreement, during the term of this Agreement MessageGears will provide You with a limited subscription to access and use the Services subject to Confirmations under this Agreement, solely for Your own use in connection with your own business purposes. Your rights to access and use the Services are personal, non-exclusive, non-transferable and non-sublicensable. You understand that MessageGears may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Services (or any portion thereof) with or without notice.

5) Access to the Services. Upon Confirmation of Your Order by MessageGears, the rights granted to You under this Agreement entitle You to access the Services through accounts (each, an “Account”). You will be provided with a user identification and password applicable to each Account You have purchased (each such user identification and password, an “Account ID”). Each Account ID is personal in nature and may be used only by You or, if You are an organization, by designated employees within Your organization or contractors who are contractually required to comply with the terms of this Agreement (such individual, as applicable, the “User” of the Account). You are solely responsible for all use of the Services by each User and for compliance by each User with the applicable terms of this Agreement. You will ensure the security and confidentiality of each Account ID and will notify MessageGears immediately if any Account ID is lost, stolen or otherwise compromised. You acknowledge that You are fully responsible for all costs, fees, liabilities or damages incurred through use of each Account ID (whether lawful or unlawful) and that any Services ordered or transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by You. In no event will MessageGears be liable for the foregoing obligations or the failure by You to fulfill such obligations. You will be solely responsible, at Your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for You and each User to connect to, access, and use the Services and the Sites.

6) Applicable Policies. In addition to the terms of this Agreement, Your access to and use of the Site and Services is subject to MessageGears’s then-current policies relating to the Site and Services, including, without limitation, the MessageGears Privacy Policy and Email Policy available on the Site. You are responsible for compliance with these policies and all other MessageGears policies applicable to the access and use of the Services posted to the Site or provided through Services.

7) Restrictions. You acknowledge that the Services, Sites, Software, and the databases, software, hardware and other technology used by or on behalf of MessageGears to provide the Services and operate the Sites (the “Technology”) and their structure, organization, and underlying data, information and source code constitute valuable trade secrets and Confidential Information of MessageGears. You will not, and will not permit any third party to: (1) access or use the Services or the Sites, in whole or in part, except as expressly provided in this Agreement; (2) use the Site, Services or any Software to harvest or collect e-mail addresses or other contact information of third parties by any means for the purposes of sending unsolicited e-mails or other unsolicited communications; (3) use the Site, Services or any Software in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Services; (4) use automated scripts to collect information from or otherwise interact with the Site, Services or any Software; (5) use the Site, Services or any Software to intimidate or harass any other people or entities; alter, modify, reproduce, create derivative works of the Services, Technology, or any Software; (6) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Services or any Software, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Services or any Software, or access thereto, available to any third party; (7) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Site, Services, Technology or any Software; (8) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Sites, Services, Technology, or any Software; or (9) interfere in any manner with the operation or hosting of the Sites, Services, Technology or any Software, or attempt to gain unauthorized access to the Sites, Services, Technology or any Software. You will not allow any access to or use of the Services by anyone other than Your authorized Users, and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.

8) Fees and Payment. You agree to pay MessageGears all fees set forth in each Order or Confirmation and any fees otherwise specified on the Site or through the Services (“Fees”). All Fees will be billed as indicated in each Order or Confirmation. If the applicable Order or Confirmation does not specify any applicable billing terms, the initial payment of Fees specified under that Order or Confirmation for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant MessageGears the right to charge the credit card or debit the bank account provided to MessageGears for all Fees incurred under this Agreement. All Fees will be non-refundable once paid to MessageGears (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1 1/2% per month or the maximum amount permitted under applicable law. MessageGears may change any portion of the Fees by posting the changes to the Sites or otherwise notifying You through the Services of the change, such changes to take effect at the beginning of the next period of this Agreement. If MessageGears requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.

9) Termination and Suspension. This Agreement may be terminated by MessageGears, at any time, in MessageGears’s sole discretion: (1) upon any breach by You of this Agreement that remains uncured ten (10) days after MessageGears delivers written notice to You of such breach (or immediately if such breach is uncurable in the sole discretion of MessageGears); or (2) at any time during any Trial/Free Subscription, for any reason or no reason, upon notice to You. Without limiting MessageGears’s right to terminate this Agreement, MessageGears may also immediately and indefinitely suspend Your access to the Sites or Services, with or without notice to You, upon any actual, threatened or suspected breach of this Agreement or of applicable law or upon any other conduct deemed inappropriate or detrimental to the Services by MessageGears. Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to You under this Agreement will terminate; (b) You will immediately cease all use of and access to the Sites and Services; (c) all Fees then owed by You will become immediately due and payable; (d) You will immediately either return to MessageGears or, at MessageGears’s discretion, destroy the MessageGears Content, Account IDs, MessageGears Confidential Information, and other information related to this Agreement in Your possession or control; and (e) MessageGears may delete any of Your Content held by MessageGears within 10 days after the date of termination. Sections 6 (Applicable Policies), 7 (Restrictions), 8 (Fees and Payment), 9 (Termination and Suspension), 10 (Your Content), 11.2 (Warranties and Disclaimer: Indemnity by You); 11.3 (Warranties and Disclaimer: Warranty by You); 11.4 (Warranties and Disclaimer: Disclaimer), 12 (Limitation on Liability), 13 (Data Privacy), 14 (Confidentiality), 15 (Governing Law), 16 (Disputes), and 17 (General) will survive any expiration or termination of this Agreement.

10) Your Content. You will be solely responsible for all data, information and other content provided by, or collected or obtained from, You or any of Your Users through the Services, including, without limitation, all personally identifiable information relating to You or any of Your Users, customers, service providers, employees, contractors or agents (“Your Content”). You grant to MessageGears all necessary rights and licenses in and to Your Content necessary for MessageGears to provide the Services under this Agreement. As between You and MessageGears, You retain all of Your rights in and to Your Content and do not convey any proprietary interest therein to MessageGears other than the licenses set forth herein. You represent and warrant that none of Your Content violates this Agreement or the Email Policy or Privacy Policy. You will maintain an adequate back-up of all Your Content and MessageGears will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of Your Content. MessageGears may take remedial action if any of Your Content violates this Agreement, provided that MessageGears is under no obligation to review any of Your Content for accuracy or potential liability. You represent and warrant to MessageGears that You have all necessary right, title, interest and consent necessary to allow MessageGears to use Your Content for the purposes for which You provide Your Content to MessageGears, including, without limitation, the delivery of any and all emails and other communications. You will defend, indemnify and hold harmless MessageGears from any and all losses, costs, damages, liabilities or expenses (including without limitation reasonable attorney’s fees) incurred or arising from any claim by a third party arising out of or relating to Your Content or the use thereof by MessageGears in providing the Services.

11) Warranties and Disclaimer 11.1) By MessageGears. Except in the case of any Services provided during a Trial/Free Subscription, MessageGears represents and warrants to You that MessageGears will use commercially reasonable efforts to maintain and verify that the Services operate in accordance with this Agreement. MessageGears’s sole obligation and Your sole and exclusive remedy in the event of any failure by MessageGears to comply with the foregoing sentence will be for MessageGears to, at MessageGears’s option, re-perform the affected Services or refund to You the fees You have actually paid for the affected Services during the month in which the failure occurred.

11.2) Indemnity by You. Notwithstanding anything in Section 11.1 to the contrary, You remain solely and entirely responsible for Your compliance with, and will defend, indemnify and hold harmless MessageGears from and against any claims arising from any actual or alleged violation by You of any international, federal, state or local treaties, laws, rules, regulations or ordinances regarding Your use of or access to the Site or Services or regarding your business, products or services, including, without limitation, regarding data and data privacy and the transmission of electronic mail messages, whether solicited or unsolicited.

11.3) Warranties By You. You hereby represent, warrant, and covenant for the benefit of MessageGears that: (1) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (2) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; and (3) Your Content, and any other data, information or content You provide to MessageGears in connection with this Agreement and Your access to the Site and use of the Services, is correct and current.

11.4) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11, THE SITES AND SERVICES (AND ALL MESSAGEGEARS CONTENT PROVIDED THROUGH THE SITES AND SERVICES) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND MESSAGEGEARS AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MESSAGEGEARS, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 11.

12) Limitation on Liability. IN NO EVENT WILL MESSAGEGEARS BE LIABLE FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE SITES, SERVICES (OR ANY MESSAGEGEARS CONTENT PROVIDED THROUGH THE SITES OR SERVICES), EVEN IF MESSAGEGEARS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. MESSAGEGEARS’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO MESSAGEGEARS HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $10). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT MESSAGEGEARS WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, MESSAGEGEARS’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

13) Data Privacy. In respect of Your use of the Site and Services and in relation to any personally identifiable and other data and information You provide to MessageGears through the Site and Services, You expressly consent to the use and disclosure of that data and information as described in MessageGears’s then-current privacy policy displayed on the Site (“Privacy Policy”) Notwithstanding anything in the Privacy Policy, MessageGears will have the right to collect, extract, compile, synthesize, and analyze non-personally identifiable data or information (data or information that does not identify an entity or natural person as the source thereof) resulting from Your access to the Site and Your use and operation of the Services (including, by way of example and not limitation, information relating to volumes, frequencies, recipients, bounce rates, or any other information regarding the email and other communications You generate and send using the Services). To the extent any such non-personally identifiable data or information is collected or generated by MessageGears, the data and information will be solely owned by MessageGears and may be used by MessageGears for any lawful business purpose without a duty of accounting to You, provided that the data and information is used only in an aggregated form, without directly identifying You, any User or customer, or any other entity or natural person as the source thereof.

14) Confidentiality. For purposes of this Agreement, “Confidential Information” means all nonpublic information disclosed or made available under this Agreement that relates to the Technology, the provision or receipt of the Services, or either party’s technology, finances, operations, customers or business. For the avoidance of doubt, (1) the Services, Technology, and MessageGears Content are the Confidential Information of MessageGears, (2) all data regarding Your email recipients, including without limitation, identities and email addresses are Your Confidential Information, and (3) the data and information specified in Section 15 will not be Your Confidential Information. Each party agrees to protect the other party’s Confidential Information with the degree of care that such party uses to protect its own confidential information of like nature, but in no case less than reasonable care. Each party agrees that, except as expressly directed by the other party, it will not at any time during or after the term of this Agreement: (1) disclose any Confidential Information to any third party; (2) permit any third party to examine and/or make copies of any reports, documents or electronic data containing Confidential Information; or (3) use any of the Confidential Information for any reason other than for the purposes of this Agreement. Each party may disclose Confidential Information to personnel having a need to receive the Confidential Information in the performance of their duties under this Agreement, provided, however, that such personnel are informed of the confidentiality obligations hereunder and each party uses its best efforts to ensure their compliance therewith. If either party is required to disclose the other party’s Confidential Information pursuant to any statute, regulation, order, subpoena or document discovery request, it will furnish written notice of such disclosure to the other party as soon as practicable in order to afford such party the opportunity to seek a protective order and the party required to make such disclosure will reasonably cooperate in such efforts (at the other party’s reasonable expense). In the event of any conflict between the Privacy Policy and the provisions of this Section 16, the provisions of this Section 16 shall control.

15) Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of Georgia without regard to its rules governing conflicts of law.

16) Disputes. The parties (a) hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the state or federal courts located in or with responsibility for Fulton County, Georgia to resolve any disputes arising hereunder, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in such courts and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of such courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS.

17) General. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger or operation of law) without the prior written approval of MessageGears. Any assignment in violation of the foregoing will be null and void. MessageGears may assign this Agreement to any party that assumes MessageGears’s obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. This Agreement (and the Privacy Policy and Email Policy referenced herein) is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. MessageGears may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Services appearing on the MessageGears web site and for other marketing and promotional purposes relating to the Services.