MailSurgeon ("Company" or "we") is an application that is available as a service online at www.mailsurgeon.com ("Website"). MailSurgeon allows users to send targeted emails to their clients (together shall be referred as "MailSurgeon"). Each of MailSurgeon' users ("User" or "you") is invited to enjoy MailSurgeon in accordance with the terms and conditions hereunder.
IF YOU DO NOT AGREE TO THE TERMS, DO NOT CONNECT TO, ACCESS OR USE MailSurgeon.
The Terms may be revised and updated from time to time, with or without any notice. The Company shall make reasonable efforts to post a prominent notice in case the Terms shall change substantially. The Company urges you to check the Last Revised date which appears at the top of the Terms.
By connecting to, accessing or using MailSurgeon, you acknowledge that the Terms constitute a binding and enforceable legal contract between the Company and any person connecting to, accessing or using MailSurgeon.
You retain all rights to your Content and we do not own or license your Content. You grant us a non-exclusive, worldwide, royalty-free, license to use, modify, reproduce and distribute your Content, only as required to provide the Services to which you have subscribed, and you warrant that (i) you have the right to grant us the license, and (ii) none of your Content infringes on the rights of any third party. Each party agrees to apply reasonable technical, organizational and administrative security measures to keep Content protected in accordance with industry standards. We will not view, access or process any of your Content, except: (x) as directed or instructed by you or your users, or (y) as required to comply with our policies, applicable law, or governmental request. You agree to comply with all legal duties applicable to you as a data controller by virtue of the submission of your Content within the Services. “Content” means any of your, or your users’ or recipients’ database access details, database structure, database content and other information that is in connection with the Service.
WE WARRANT THAT THE SERVICES WILL CONFORM TO THE SERVICE DESCRIPTIONS UNDER NORMAL USE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, (ii) OUR SERVICES WILL MEET YOUR REQUIREMENTS, OR (iii) ALL ERRORS OR DEFECTS WILL BE CORRECTED. USE OF THE SERVICES IS AT YOUR SOLE RISK. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT OUR SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICES, OR TO TERMINATE THE NON-CONFORMING SERVICES OR THE APPLICABLE ORDER, AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE PERIOD OF NON-CONFORMANCE THROUGH THE END OF THE REMAINING TERM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN THOSE JURISDICTIONS.
There are certain conducts which are strictly prohibited on MailSurgeon. Please read the following restrictions carefully. Your failure to comply with the provisions set forth herein may result in the termination of your access to MailSurgeon and may also expose you to civil and/or criminal liability.
You may not, whether by yourself or anyone on your behalf:
MailSurgeon and the Intellectual Property rights pertaining thereto (other than User Generated Content) including, but not limited to, sounds, inventions, patents and patent applications, trademarks, trade names, copyrightable materials, graphics, text, designs (including the "look and feel" of MailSurgeon), visual and audio effects, specifications, methods, procedures, algorithms, data, technical data, interactive features, source and object code, files, interface, GUI and trade secrets, whether or not registered (collectively, "Intellectual Property"), are owned and/or licensed to the Company and subject to copyright and other applicable intellectual property rights under United States laws, foreign laws and international conventions.
As long as your User Generated Content is subject to the applicable copyright law, such User Generated Content shall remain at all times, and to the extent permitted by law, your sole and exclusive property.
You understand and agree that you are solely responsible for your User Generated Content and the consequences of posting or publishing such material in any way.
As a condition for your use of MailSurgeon, you hereby represent and warrant that you possess the legal authority to enter into these Terms and to form a binding agreement under any applicable law, to use MailSurgeon in accordance with these Terms, and to fully perform your obligations hereunder; If you are between the ages of 13 and 17, you represent that your legal guardian has reviewed and agreed to these Terms; The execution of the Terms does not and will not violate any other agreement to which you are bound or any law, rule, regulation, order or judgment to which you are subject; and you will not infringe or violate any of the Terms.
You acknowledge and agree that: Company may remove any User Generated Content and/or discontinue your use of MailSurgeon in its sole discretion with or without any reason; The Company may integrate commercials and advertisements, whether within or beside MailSurgeon. All the information contained in such commercials and advertisements belongs solely to the advertisers and the Company makes no warranties or representations as to such advertisements, whether or not the Company has control over such advertisements. The Company, advertisers and/or third-parties related thereto may be entitled to certain shares of the earnings for such commercials. You agree, acknowledge and consent that no right, title or interest is or shall be granted to you in any way with respect to any revenue share whatsoever in relation thereto, whether as a paying User or not.
"MailSurgeon", Company's logo and all other proprietary identifiers used by the Company in connection with MailSurgeon ("Company Trademarks") are all trademarks and/or trade names of the Company, whether or not registered. All other trademarks, service marks, trade names and logos which may appear on MailSurgeon belong to their respective owners ("Third Party Marks"). No right, license, or interest to the Company Trademarks and the Third Party Marks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to the Company Trademarks or the Third Party Marks.
The Company may integrate commercials, advertisements and/or sponsored links, whether within or beside MailSurgeon. By clicking the advertisements you may be transferred to a website of an advertiser or receive any other messages, information or offers from the advertiser and from others. All the information contained in such commercials and advertisements belongs solely to the advertisers and the Company makes no warranties or representations as to such advertisements, whether or not the Company has control over such advertisements. The Company, advertisers and/or third-parties related thereto may be entitled to certain shares of the earnings for such commercials. You agree, acknowledge and consent that no right, title or interest is or shall be granted to you in any way with respect to any revenue share whatsoever in relation thereto, whether as a paying User or not.
MailSurgeon' availability and functionality depends on various factors, such as communication networks, software, hardware and the Company's services' providers and contractors. The Company does not warrant or guarantee that MailSurgeon will operate at all times without disruption or interruption, or that it will be immune from unauthorized access or error-free.
The Company may change MailSurgeon' layout and design from time to time, and the availability of the content and services included therein, without giving any prior notice on MailSurgeon. You hereby agree and acknowledge that the Company is not responsible for any errors or malfunctions that may occur in connection with the performing of such changes.
If you have registered directly to MailSurgeon, you may change, edit, correct or delete any and all information included in your personal account, at any time. For the cancellation and removal of your account from MailSurgeon and on any matters that extend the usual management of your account please contact support at: [email protected]
You hereby agree and acknowledge to accept any and to be bound by any of the changes made in the Terms and the accompanying policies. Should you continue to use MailSurgeon after the changes were made, it will indicate your acceptance to the new Terms. You are recommended to review the Terms from time to time, as they may change every once in a while.
At any time, the Company may block your access to MailSurgeon and/or temporarily or permanently limit, suspend or terminate your personal profile, for any reason, at its sole discretion, in addition to any other remedies that may be available to the Company under any applicable law. Such actions by the Company may be taken if the Company deems that you have breached any of these Terms in any manner. Additionally, the Company may at any times, at its sole discretion, cease the operation of MailSurgeon or the Application or any part thereof, temporarily or permanently, without giving any prior notice and without saving any back-up of any of the User's clips or other User Generated Content. You agree and acknowledge that the Company does not assume any responsibility with respect to, or in connection with the termination of MailSurgeon' operation and loss of any data, including User Generated Content, as a result.
MAILSURGEON, INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA AND INFORMATION RELATED THERETO, IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE COMPANY DOES NOT WARRANT THAT MAILSURGEON WILL BE UNINTERRUPTED OR ERROR-FREE. THE COMPANY MAY CORRECT, MODIFY, AMEND, ENHANCE, IMPROVE AND MAKE ANY OTHER CHANGES TO MAILSURGEON AT ANY TIME OR TO DISCONTINUE DISPLAYING OR PROVIDING ANY CONTENT OR FEATURES WITHOUT A NOTICE TO YOU. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE USE OF MAILSURGEON, INCLUDING BUT NOT LIMITED TO THE AVAILABILITY, RELIABILITY, OR QUALITY OF MAILSURGEON, AND IS NOT AND SHALL NOT BE RESPONSIBLE FOR ANY ERROR, FAULT OR MISTAKE OF ANY AND ALL CONTENT AND INFORMATION RECEIVED THROUGH MAILSURGEON. THE COMPANY DOES NOT ENDORSE ANY ENTITY, PRODUCT OR SERVICE MENTIONED IN ANY USER GENERATED CONTENT.
MAILSURGEON CAN CAUSE LEAK OR LOSS OF YOUR DATABASE INFORMATION. MAILSURGEON CAN NOT BE HELD LIABLE FOR ANY DAMAGE TO YOUR BUSINESS
YOU USE THIS SOFTWARE ON YOUR OWN RISK.
THE USE OF MAILSURGEON IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTIONS RESULTING FROM OR ARISING OUT OF MAILSURGEON, OR THE USE OR INABILITY TO USE MAILSURGEON, REGARDLESS OF WHETHER THE COMPANY OR AN AUTHORIZED REPRESENTATIVE OF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WHERE LIABILITY IS MANDATORY, IN WHICH EVENT LIABILITY FOR DAMAGES SHALL BE LIMITED TO FIVE US DOLLARS ($5).
You agree to defend, indemnify and hold harmless the Company, its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from: (i) your use of MailSurgeon; (ii) your violation of any term of these Terms; (iii) your violation of any third party rights, including without limitation any intellectual property rights or privacy right of such third party; and (iv) any damage of any sort, whether direct, indirect, special or consequential, you may cause to any third party with relation to MailSurgeon. It is hereby clarified that this defense and indemnification obligation will survive these Terms.
The Company respects the intellectual property rights of others. If you believe that your work has been copied or otherwise used in a way that constitutes copyright infringement, please provide the following information in writing to the Company's Copyright Agent: (i) the contact details of the person authorized to act on behalf of the owner of the copyright; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of the material that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information sufficient to permit the Company to locate the material; (iv) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (v) a statement that the information in the notification is accurate and, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the owner of a copyright that is allegedly infringed. The Company's Copyright Agent can be reached via support mail: [email protected]
These Terms do not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto.
Any claim relating to MailSurgeon or its use thereof will be governed by and interpreted in accordance with the State of New-York, USA without reference to its conflict-of-laws principles.
Any dispute arising out of or related to your use of MailSurgeon will be brought in, and you hereby consent to exclusive jurisdiction and venue in, the competent courts of city of Tel Aviv, Israel. You agree to waive all defenses of lack of personal jurisdiction and forum non-convenience and agree that process may be served in a manner authorized by applicable law or court rule.
If any provision of this Terms is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Terms and will not affect the validity and enforceability of any remaining provisions.
No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
These Terms constitutes the entire terms and conditions between you and the Company relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and the Company.