SHAZZLE COMMERCIAL LICENSE AND TERMS OF SERVICE
Your Relationship with Us
Your use of our products, software and services (referred to collectively as the "System" in this document and excluding any services provided to you by us under a separate written agreement) is subject to the terms of this legal agreement between you and us, as amended from time to time (the "Terms").
The term "You" or "you" means the person, company, or entity who is acquiring the license to use the System under this Agreement; "we" or "us" means Shazzle LLC and "both of us" means both you and us.
Accepting these Terms
In order to use the System, you must first agree to these Terms. You may not use the System if you do not accept these Terms. You can accept these Terms by clicking to accept or agree to these Terms, where this option is made available to you by us in the user interface for any service; or by actually using the System. You understand and agree that we will treat your use of the System as acceptance of these Terms from that point onwards.
You may not use the System and may not accept the Terms if (a) you are not of legal age to form a binding contract with us, or (b) you are a person barred from using the System under the laws of the United States or other countries including the country in which you are resident or from which you use the System.
Any individual under the age of 18 years ("Minor") must have a parent or guardian accept the Terms in order for him or her to use the System. A parent or guardian who accepts the Terms on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with the Terms, including any payment obligation. A parent or guardian who accepts the Terms on behalf of a Minor will continue to be primarily liable for the obligations mentioned in the Terms even when the Minor has attained the age of 18, unless the parent or guardian obtains the Company’s express written consent to the contrary.
If you are entering into this Agreement on behalf of a company or other organization, you must have the authority to bind your company or organization to this Agreement and commit funds on its behalf. Titles that typically carry that authority include, without limitation: Chairman, Principal, President, Officer, Vice President, Director, Controller, Finance Manager or Purchasing Manager. We may reject this Agreement if we determine, in our sole discretion, that you do not have the appropriate authority. In any case, if you are entering into this Agreement on behalf of a company or other organization, you represent that you have the authority to bind it to this Agreement and commit funds on its behalf, and the terms "you" and "your" will refer to that company or organization. If you do not have that authority, or if you do not agree with these terms and conditions, you must select the "I Do Not Accept this Agreement" button and may not use this product.
You acknowledge that your electronic submissions constitute your agreement and intent to be bound by these Terms. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, you hereby agree to the use of electronic signatures, contracts, orders and other records and to electronic delivery of notices, policies and records of transactions initiated or completed through the system. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.
Use of the System
Subject to your acceptance of these Terms, we give you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to you by us as part of the System as provided to you by us (referred to as the "Software"). This license is for the sole purpose of enabling you to use and enjoy the benefit of the System as provided by us, in the manner permitted by these Terms.
User under this Agreement are either "Primary Users" or "Sub Users". A "Primary User" is a user who has a paid agreement under these terms, or an employee, consultant or other service provider who uses the account needs of, and solely for the benefit of, the Primary User (collectively, "Personnel"). A Primary User may in addition create secure email accounts for the Primary User’s clients to establish private networks ("Sub Users"). These Sub Users will be able to use the account only to mail the Primary User for which they are a Sub User, or other Primary Users.
The Primary User shall be responsible for ensuring that Personnel and Sub Users comply with these Terms and any applicable end user license agreement to which they assent.
This Agreement and your license granted under this Agreement are personal to you (and your Personnel (as defined below) in the course of their work for you), and do not include the right to sublicense your rights under this Agreement to any third party, except solely the right to authorize Personnel and establish Sub Users. You may not transfer or assign, by operation of law or otherwise, this Agreement or your license to any third party without our prior written consent, which may be withheld in our sole discretion for any reason or for no reason.
If you acquire a third party entity or acquire substantially all of the assets of a third party entity, or are acquired by a third party, in each case, whether by merger, change of control, sale of assets, consolidation or otherwise, such event shall be considered an assignment of this Agreement for this purpose. Any assignment or attempted assignment in violation of these terms shall be of no effect, and shall constitute a breach of this Agreement and result in the immediate and automatic termination of your license rights under this Agreement; any renewal of such rights shall, if then available, be at our sole discretion, and will be on terms and conditions applicable at the time of renewal.
Limitation on Your Use
You may not (and you may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless you have been specifically told that you may do so by us, in writing.
You may not assign (or grant a sub-license of) your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of your rights to use the Software.
The System may cause your computer system or other device to download and install updates from time to time. These updates are designed to improve, enhance and further develop the System and may take the form of bug fixes, enhanced functions, new software modules and completely new versions. You consent and agree to receive and permit the installation of such updates (and to permit us to deliver these to you) as part of your use of the System. These Terms shall apply to any such updated Software and System.
Use of the System by You
In order to access the System, you may be required to provide information about yourself (such as identification or contact details) as part of the registration process for the System, or as part of your continued use of the System. You agree that any registration information you give to us will always be accurate, correct and up to date. We agree to take commercially reasonable steps to preserve the confidentiality of such information.
You agree to use the System only for purposes, and in a manner, permitted by (a) these Terms and (b) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions including, without limitation, any regulations of the United States Bureau of Export Administration and other applicable governmental agencies, You hereby assure us that you will not export directly or indirectly technical data to any country for which a validated license is required under United States law without first obtaining a validated license. Further, you represent and warrant that you are not a national of, or under the control of, any country upon which the United States has then currently imposed an embargo of goods.
Limitation on Access to the System
You agree not to access (or attempt to access) any of the System by any means other than through the interface that is provided by us, unless you have been specifically allowed to do so in a separate written agreement executed by us. Without limiting the generality of the foregoing, you specifically agree not to access (or attempt to access) any of the System through any automated means (including use of scripts or crawlers). Similarly, you agree that you will not provide any third party access to material on the System (or facilitate their attempt to access) by any means other than through the interface that is provided by us, unless you have been specifically allowed to do so in a separate written agreement executed by us.
You agree that you will not engage in any activity that interferes with or disrupts the System (or the servers and networks which are connected to the System).
You will not reproduce, duplicate, copy, sell, trade or resell the System for any purpose.
You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) any breach of your obligations under these Terms and for the consequences (including any loss or damage which we may suffer) of any such breach.
You agree not to use the System in violation of our the following standards of conduct as amended from time to time, in particular you may not use the System in a manner that would cause you or us to violate any applicable local, state, national or international law, including any rules and regulations of any securities exchange, any rules, regulations, requirements, procedures or policies in force from time to time relating to the System, and any export or re-export laws, rules and regulations; interfere with or disrupt the System or take any steps to interfere with or in any manner compromise any security measures with respect to the System or any data or file transmitted, processed or stored on or through the System.
Your Passwords and Account Security
You are responsible for maintaining the confidentiality of passwords associated with any account you use to access the System. Accordingly, you will be solely responsible to us for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify us immediately.
Payment for Services (Not Applicable to Beta Users)
The beta is free. Thereafter we expect to allow consumers who use Shazzle for non-commercial purposes to continue to use it for free, while we expect to charge commercial users. We reserve the right to change our policy on price in the future. Users subject to charges agree to pay all charges, recurring fees, applicable taxes and other charges (collectively herein "Charges") incurred by you (or anyone who is using an authorized user account that you have caused to be created or for which you have otherwise indicated your agreement to be responsible for payment) at the rates in effect for the billing period in which those charges are incurred. Charges may include among other things, fees for access based on usage of the Software or System. Information about current rates will be available at Shazzle.com or otherwise provided to you by us; we may change rates or institute new charges at any time upon 30 days prior notice.
All payments shall be made at our address as indicated in this Agreement or at such other address as we may from time to time indicate by proper notice hereunder. All invoices are due and payable within thirty (30) days of our date of invoice. Interest shall be payable at the rate of one percent (1.0%) per month or at the maximum rate permitted by law, whichever is less, on all overdue and unpaid invoices until paid in full. All fees are denominated and to be paid in United States Dollars and are exclusive of any applicable taxes. You shall pay, indemnify and hold us harmless from all sales, use, value added or other taxes of any nature, other than personal property or taxes on or measured by our net or gross income, including penalties and interest, and all government permit or license fees assessed upon or with respect to any fees. If your account is delinquent, We may, at our sole discretion, suspend or cancel your account (and accordingly your use of the System). If your account is suspended, regular charges continue to accrue until you cancel your account.
You must inform us of any billing problems or discrepancies within 90 days after they first appear on your account statement. If you do not bring them to our attention within 90 days, you agree that you waive your right to dispute such problems or discrepancies. Additionally, if any charges are being collected by us on behalf of a supplier, then such supplier shall be an express third party beneficiary of this section.
Privacy and your Personal Information
We (or our licensors) own all legal right, title and interest in and to the System, including any intellectual property rights which subsist in the System (whether those rights happen to be registered or not, and wherever in the world those rights may exist). The System may contain information which is designated confidential by us and you shall not disclose such information without our prior written consent.
Information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) to which you may provide or have access as part of, or through your use of, the System are the sole responsibility of the person from which such content originated. All such information is referred to below as the "Content".
We agree that we obtain no right, title or interest from you (or third parties) under these Terms in or to any Content that you transmit or receive through the System, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist).
You agree that you are solely responsible for (and that we have no responsibility to you or to any third party for) (i) your use of any Content and you hereby acknowledge and agree that, in the absence of an express statement by us to the contrary, we are not "providing" you with the Content and (ii) any Content that you create, transmit or display while using the System and for the consequences (including any loss or damage which we may suffer) of doing so.
Consent to Temporary Storage and Transfer
In order to maintain a favorable cost structure to allow free non-commercial use the System may transmit or receive electronic files containing third-party content by interaction with other users, and by other users through the use of your computer, including temporary storage of information on your computer. Any data passing through your computing equipment in this way will be encrypted and you will not have the key to decrypt it so that privacy is maintained. Also, only devices connected to LAN and directly addressable will be used in this manner, so there will be no mobile data charges. You hereby consent to such transmissions and to the corresponding use of your bandwidth and your digital storage space by the System. In order to terminate this process, you can: (a) quit the Software, (b) disconnect from the Internet, (c) turn off your computer, or (d) uninstall the Software.
The ShazzleMail client on the smart phone cannot access any other applications or data not related to the ShazzleMail application data such as Contacts List and the like.
Ending your Relationship with Us
These Terms, as amended from time to time, will continue to apply until terminated by either you or us as set out below.
If you want to terminate your legal agreement with us, you may do so by (a) notifying us at any time and (b) closing all of your System user accounts, where we have made this option available to you. Your notice should be sent, in writing, to our address: Shazzle LLC, 14 Storrs Avenue, Braintree, MA 02184.
We may, at any time, stop (permanently or temporarily) providing the System (or any features within the System) to you or to users generally at our sole discretion, if we reasonably determine such suspension to be necessary in order to prevent a violation of applicable law (including if any aspect of the System is held to be invalid, illegal or unenforceable under present or future laws), or a violation of these Terms, or if a necessary third party service is no longer available for provision to you (regardless of the reasons for such unavailability) (a "Service Suspension"). If a Service Suspension has not been resolved within ten (10) days, then either of us party may terminate these Terms by written notice to the other.
In addition, all of your rights to access the System under these Terms shall automatically terminate in the event of an unauthorized assignment, as noted above under "Use of the System". If we disable access to your account, you may be prevented from accessing the System, your account details or any files or other content which is contained in your account.
Upon any termination of these Terms, your right to use the System terminates, but the provisions under "Limitation on Your Use", "Limitation on Access to the System", "Proprietary Rights", "Exclusion Of Warranties", "INDEMNIFICATION", "Limitation of Liability" and "General Legal Terms" continue to apply to both of us even after termination.
Exclusion of Warranties
THE SYSTEM (INCLUDING ANY ADVERTISING DISPLAYED THEREON) AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SYSTEM (THE "MATERIALS") IS MADE AVAILABLE "AS IS". WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE SYSTEM OR THE MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. YOU ALONE SHALL BEAR THE RISK AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM USE OF THE SYSTEM OR ANY MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SYSTEM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
The license granted to you under these Terms is for the most current version of the Software as of the time we make such version available to you under these Terms. We may release future versions of the software under these Terms or different terms. Nothing in these Terms (a) gives you the right to any future version of the Software; or (b) is a commitment to you of compatibility between the Software and any future versions of the Software.
YOU AGREE TO INDEMNIFY, HOLD HARMLESS AND DEFEND US AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, CO-BRANDERS OR OTHER PARTNERS, AND EMPLOYEES, AT YOUR EXPENSE, AGAINST ANY AND ALL THIRD PARTY CLAIMS OR DEMANDS, ACTIONS, PROCEEDINGS AND SUITS AND ALL RELATED LIABILITIES, DAMAGES, SETTLEMENTS, PENALTIES, FINES COSTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY’S FEES AND OTHER DISPUTE RESOLUTION EXPENSES) INCURRED BY US, DUE TO OR ARISING OUT OF DATA YOU OR YOUR PERSONNEL SUBMIT, POST TO, TRANSMIT OR COMMUNICATE THROUGH THE SYSTEM, YOUR OR YOUR PERSONNEL’S USE OR MISUSE OF THE SYSTEM, YOUR OR YOUR PERSONNEL’S CONNECTION TO OTHER USERS, YOUR OR YOUR PERSONNEL’S VIOLATION OF THESE TERMS, OR YOUR OR YOUR PERSONNEL’S VIOLATION OF ANY RIGHTS OF ANOTHER.
Limitation of Liability
OUR AGGREGATE LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF (OR INABILITY TO USE) THE SYSTEM SHALL NOT EXCEED THE GREATER OF THE SUM OF ALL AMOUNTS RECEIVED BY US FROM YOU DURING THE PREVIOUS TWELVE (12) MONTHS. IN NO EVENT SHALL WE (OR ANY OF OUR SUPPLIERS OR LICENSORS) BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, TORT OR ANALOGOUS DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF (OR INABILITY TO USE) THE SYSTEM, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Copyright and Trade Mark Policies
It is our policy to respond to notices of alleged copyright infringement that comply with applicable intellectual property law (including the Digital Millennium Copyright Act) and to terminate the accounts of repeat infringers.
Changes to these Terms
We may make changes to these Terms from time to time. When these changes are made, we will make a new copy of these Terms available at www.shazzle.com/terms-service. If you use the System after the date on which these Terms have changed, you agree that said use indicates acceptance of the updated Terms.
U.S. Government End Users
The software used to provide the System is a "commercial item," as that term is defined in 48 C.F.R. 12.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the software with only those rights set forth herein.
General Legal Terms
Sometimes when you use the System, you may (as a result of, or through your use of the System) use a service or download a piece of software, or purchase goods, which are provided by another person or company. Your use of these other services, software or goods may be subject to separate terms between you and the company or person concerned. If so, these Terms do not affect your legal relationship with these other companies or individuals.
The Terms constitute the whole legal agreement between you and us and govern your use of the System (but excluding any services which we may provide to you under a separate written agreement), and completely replace any prior agreements between you and us in relation to the System.
You agree that we may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the System.
You agree that if we do not exercise or enforce any legal right or remedy which is contained in these Terms (or which we have the benefit of under any applicable law), this will not be taken to be a formal waiver of our rights and that those rights or remedies will still be available to us.
If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from these Terms without affecting the rest of these Terms. The remaining provisions of these Terms will continue to be valid and enforceable.
You acknowledge and agree that each member of the group of companies of which we are the parent shall be third party beneficiaries to these Terms and that such other companies shall be entitled to directly enforce, and rely upon, any provision of these Terms which confers a benefit on (or rights in favor of) them. Other than this, no other person or company shall be third party beneficiaries to these Terms.
The Terms, and your relationship with us under these Terms, shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. You and we agree to submit to the exclusive jurisdiction of the courts located within Suffolk County, Massachusetts to resolve any legal matter arising from these Terms. Notwithstanding this, you agree that we shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.