Terms and Conditions: July 11th, 2017
BEFORE DOWNLOADING , INSTALLING OR USING MAILBOOST SOFTWARE YOU MUST AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, THEN DO NOT DOWNLOAD, INSTALL OR USE MAILBOOST SOFTWARE. IF YOU DO DOWNLOAD, INSTALL OR USE MAILBOOST SOFTWARE YOU SIGNIFY YOUR AGREEMENT TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
IF YOU ARE USING THE MAILBOOST SOFTWARE ON BEHALF OF YOUR EMPLOYER OR IN CONNECTION WITH A BUSINESS OR OTHER ORGANIZATION OR ENTITY (“ENTITY”), YOUR ACCEPTANCE OF AND AGREEMENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT WILL BE DEEMED TO BE AN AGREEMENT BETWEEN SAID ENTITY AND MAILBOOST AND YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND SAID ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS OR IF YOU ARE NOT AUTHORIZED TO BIND SAID ENTITY, DO NOT DOWNLOAD, INSTALL OR USE THE MAILBOOST SOFTWARE.
This Agreement (“Agreement”) sets forth the terms and conditions under which Mailboost (“Mailboost ”, “We” or “Us”) will provide to you (“Licensee” or “You”) the right to use and access the proprietary Mailboost software application (collectively, “Mailboost ”). Mailboost may be used and accessed by You only under the following terms:
- License, Fees and Conduct
- License: Mailboost grants to You, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, limited license (without the right to sublicense) during the Term (as defined herein) to install and use the Mailboost Service.
- No Transfer of Intellectual Property; You acknowledge that the source code for the Mailboost and other trade secrets embodied in Mailboost have not been, will not be, and are not intended to be disclosed to You, nor do You acquire any right to such intellectual property in and to BananaTag Service. Except as specifically permitted in this Agreement, You will not directly or indirectly: (a) distribute, copy, adapt, create derivative works of, translate, localize, port or otherwise modify Mailboost or (b) authorize any third party to engage in any of the acts described in clauses (a) and (b). Further, You are not permitted to: (c) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer Mailboost ; (d) use any means to discover the source code of the Mailboost e or to discover the trade secrets in Mailboost ; or (e) otherwise circumvent any technological measure that controls access to the Mailboost.
- Maintenance; Enhancements.
- Maintenance: Mailboost will provide such support for the Mailboost as it considers appropriate during the Term, and will address such issues as may, in Mailboost’s reasonable discretion, need addressing, provided that such support will not include support for issues resulting from: (i) the malfunction of software not provided by Mailboost ; (ii) the failure of hardware to perform in accordance with its specifications; (iii) Your misuse, negligence or fault; (iv) Your failure to follow the instructions set forth in the Documentation or (v) modifications or changes to Mailboost not performed by Mailboost.
- Enhancements: BananaTag may from time to time make available updates, enhancements and/or modifications to Mailboost and shall provide such updates to You, which will be identified by a change in the Mailboost version number. The provision by Mailboost to You of such updates, enhancements and/or modifications to the Mailboost will be subject to all covenants and conditions of this Agreement, including, but not limited to, the restrictions on Your use of the Mailboost and Mailboost’s disclaimer of warranties.
- WARRANTIES, INDEMNIFICATION, AND LIMITATION OF LIABILITY.
- Warranties: Mailboost warrants that: (i) Mailboost e will perform in substantial conformance with the documentation supplied with Mailboost ; and (ii) Mailboost shall make reasonable efforts to keep Mailboost free of viruses. EXCEPT FOR THOSE WARRANTIES SET FORTH EXPRESSLY IN THIS AGREEMENT, MAILBOOST HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING MAILBOOST , THE DOCUMENTATION, AND THE USE, PERFORMANCE, OPERATION AND SUPPORT THEREOF, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT, ACCURACY, COMPLETENESS, INTEGRATION, UNINTERRUPTED USE, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. MAILBOOST DOES NOT WARRANT THAT (A) MAILBOOST WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE MAILBOOST WILL BE UNINTERRUPTED OR ERROR-FREE, OR (C) DEFECTS WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- Indemnification: Each party under this Agreement hereby agrees to indemnify, defend, protect and hold harmless the other party, its agents, members, directors, officers, and employees from and against any third party claim alleging that any intellectual property provided by such party infringes the intellectual property rights of any third party.
- Limitation of Liability: BOTH PARTIES AGREE THAT IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THIS AGREEMENT OR EVEN IF PREVIOUSLY APPRISED OF THE POSSIBILITY THEREOF. IN ANY CASE, IF EITHER PARTY SHOULD BE, OR IS CLAIMED TO BE, LIABLE FOR ANY DAMAGES WHATSOEVER, THE AMOUNT OF SUCH DAMAGES SHALL NOT EXCEED AN AMOUNT EQUAL TO THE GREATER OF THE AMOUNT PAID BY YOU TO MAILBOOST IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY OR TWELVE (12) TIMES THE AMOUNT PAID OR PAYABLE BY YOU IN THE MONTH FOLLOWING THE EVENT GIVING RISE TO SUCH LIABILITY. . Notwithstanding the foregoing, the limitations of liability shall not apply to each party’s obligations under Section 4 (NONDISCLOSURE) OR Section 5.2 (Indemnification).
- Ownership. You acknowledge and agree that Mailboost owns all right, title and interest in and to Mailboost and the Documentation and all Intellectual Property pertaining to Mailboost, (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and You agree not to take any action(s) inconsistent with such ownership interests including, without limitation, any use of Mailboost or Documentation except as expressly permitted in this Agreement. Except as expressly provided in this Agreement, You do not acquire any rights or licenses under any of Mailboost’s copyrights, patents, patent applications, trade secrets, trademarks or other intellectual property rights on account of this Agreement or Your performance under this Agreement. All (a) suggestions for correction, change and modification to the Mailboost, evaluation data, evaluations and other feedback (including, but not limited to, quotations of written or oral feedback relating to the Mailboost or the Documentation), information and reports provided to Mailboost by You, except for Your Confidential Information, (“Feedback”), and all (b) improvements, updates, modifications or enhancements, made, created or developed by Mailboost relating to or concerning Mailboost or Documentation and, whether or not conceived or made under this Agreement or in the course of, or as a result of, Your use or performance hereunder (collectively, “Revisions”), are and will remain the property of Mailboost, and You acknowledge and expressly agree that any contribution in the form of Feedback will not give or grant You any right, title or interest in Mailboost or Documentation or in any such Feedback or Revisions. All Feedback and Revisions will be the sole and exclusive property and Confidential Information of Mailboost and Mailboost may use and disclose any such Feedback and Revisions in any manner and for any purpose whatsoever without compensation to You and without retention by You of any proprietary or other claim. You hereby assigns any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights) that You may have in and to any and all Feedback and Revisions to Mailboost . Upon request by Mailboost, You will execute any document, registration or filing required to give effect to the foregoing assignment.
- Contact. You agree that Mailboost may contact You from time to time to inform You of updates to the service or your account.
- Usage of Logo. You grant Mailboost the right to use your company logo. Mailboost may not modify or change the logo in any way and the logo may only be used for purposes of identifying company as a Mailboost customer. The logo shall not be used in any manner, which may be considered, in your sole discretion, disparaging or negative. You have the right to revoke the license to use company logo at any time in your sole discretion.