PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF USE CAREFULLY. THEY SHALL GOVERN YOUR USE OF THE INCREDIMAIL SOFTWARE, SERVICE AND SITE. IF, AFTER READING THESE TERMS AND CONDITIONS OF USE, YOU WISH TO USE THE SERVICE AND SOFTWARE PLEASE INDICATE YOUR ACCEPTANCE HEREOF BY CLICKING "I AGREE" AT THE END.
TERMS AND CONDITIONS OF USE
The IncrediMail electronic mail service and the Incredimail Letter Builder ("Service") and the software enabling the use thereof (the "Software"), are provided by IncrediMail Ltd. and/or its affiliates and subsidiaries (collectively "IncrediMail" or "we") to you ("you" or "your") and others who use the Service and Software (collectively "User" or "Users"), subject to these terms and conditions of use and all modifications thereto including all rules that may be published from time to time by IncrediMail ("Terms and Conditions" or "Agreement"). This Agreement shall also govern your use of the Site currently located at www.incredimail.com (the "Site").
1. GENERAL TERMS OF USE
Your use of the Software, Service, and Site, including any content and software contained therein, signifies your understanding and agreement that such use is entirely at your own risk. You agree to use the Software, Service and Site solely for your personal use as an online electronic mail management tool. IncrediMail does not guarantee reliability, accuracy, or completeness of the Software, Service or Site.
The Service is provided to any user who agrees to be bound to this Agreement and by additional terms that shall be added by Incredimail from time to time (such as payment terms with respect to the Service or any part thereof) . Users who violate this Agreement may be barred from using the Service, at IncrediMail's sole discretion. In consideration of your use of the Service, and without derogating from Incredimail's right to charge fees as additional consideration for the Service or any part thereof) you agree to provide true, accurate, current and complete information about yourself as required in the Registration Form that appears when downloading the Software. If any information provided by you is untrue, inaccurate, not current or incomplete, IncrediMail may terminate your use of the Service. You agree not to transfer or resell the Service or Software, in whole or in part, to any third party, or allow unauthorized access to the Service or Software, by any third party.
2. CHANGES IN TERMS AND CONDITIONS OF USE
IncrediMail may change these Terms and Conditions from time to time and at any time, with or without a release of a new version of the Software, and without actual notice to you. All such changes to this Agreement will appear on the Site. IncrediMail may provide additional notice of such changes by providing a link from the Service to the Site. You agree that your continuing to use the Software, Service and/or Site for a period of thirty (30) days after such notice has been posted on the Site for the first time shall constitute your consent to the new or revised set of Terms and Conditions.
3. YOUR ACCESS
You are responsible for obtaining and maintaining the equipment and telephone services necessary to access and use the Software, Site and Service and for any telephone charges associated with connecting to the Internet to use the Service. Depending on your location, connecting to the nearest access number may involve long distance telephone charges.
4. AUTHORIZED PERSONS
You are responsible and liable for any activity by any person who uses the Service through your user name and password. You are responsible for maintaining the confidentiality of your password and for any liability resulting from disclosure of your password. You agree to immediately notify IncrediMail of any unauthorized use of the Service or any other breach of security known or suspected by you.
5. SOFTWARE LIMITED LICENSE AND USE POLICY
The Software that will enable you to use the Service may have been downloaded from the Site or another authorized web site. If you have downloaded the IncrediMail electronic mail service - you acknowledge that no payment was made by you for the Software, regardless of the method of delivery, and if payments were made, they were made for other equipment, products or services and not for the Software. If you have downloaded the Incredimail Letter Builder - you acknowledge payment was made by you for the Software pursuant to the terms contained in the Site. To ensure the proper functionality and security of the Service always make sure you are using a current and authorized copy of the Software.
The Software is being licensed to you by IncrediMail on an "AS IS" basis, for your private personal use only. Except as expressly permitted hereunder, you agree not to extract or harvest any information from any portion of the Service, including without limitation, from any User Profile, or any other portion of the Service or the Site, or to reverse engineer, decompile, disassemble, alter, duplicate, make copies of, distribute or provide others with the Software, the IncrediMail communications protocols or any information available on, derived or extracted from the Service or any part of the foregoing.
IncrediMail may, at its sole discretion, limit, deny, or create different levels of use for different users, or cancel some or all of the functionality of the Software or the Service at any time, without prior notice.
6. PRIVACY STATEMENT
This statement applies to IncrediMail's information collection and use policies with respect to use of the Site and Service. Amendments to this statement will be posted at this URL and will be effective when posted. Your continued use of this Site or the Service following the posting of any amendment, modification or change to this statement shall constitute your acceptance thereof.
THE SITE
We do not request nor collect any personal or non-personal information from Users who simply visit the Site.
THE SERVICE
The Service allows Users to create and send personalized electronic mail messages ("Messages") to Users of the Service as well as non-Users. To get started, a User must first download the Software that will enable use the Service. Prior to downloading the Software, Users will be asked to provide certain required and optional information as described more fully below.
Service Registration Information
During the registration process, you will be asked to complete a Registration Form which will request certain non-personally identifiable information about You, such as your gender, age and country of origin. Other than the information you provide in the Registration Form, IncrediMail will not collect nor maintain any other personally identifiable information about any User.
If IncrediMail is unable to identify your e-mail settings, you may be asked to provide your name, e-mail address and incoming/outgoing server settings.
In order to assist users in configuring their email server settings, IncrediMail may send the non-personally identifiable suffix of the email address to a server that will try to return the correct incoming/outgoing email server settings according to the server data-base. In addition, users non-personally identifiable server settings may be sent to the server in order to assist in building this data-base.
Personal Profile
You may modify any information in your Profile at any time.
Please remember that any information that you make available in your Profile will be accessible to all other Users of the Service.
OUR USE OF THE INFORMATION YOU PROVIDE
IncrediMail will only use information provided in a Registration Form to provide Users with important information about the Service (such as upgrades, modifications, etc.) and to announce new products and services available to Users. Except as necessary to perform the functions of the Service, IncrediMail will not share, sell or lease any personally identifiable information about any User to any unaffiliated third party for any purpose without that User's permission.
Non- Personally Identifiable Information
IncrediMail will use certain non-personally identifiable information provided by Users for the following purposes:
To create aggregate, non-personal, demographic reports about the Users of the Service.
Provide Users with certain content that may of interest to that User based on the information the User provides.
INFORMATION AVAILABLE THROUGH USE OF THE SERVICE
The Service will enable Users to send Messages to other people (both Users and non-Users). Subject to all general security limitations inherent in communicating via the Internet, a Message will not be generally accessible to Users or others who are not intended recipients of the Message. Please use the same discretion when sending Messages through the Service as you would when sending ordinary electronic mail.
Except as expressly described herein, IncrediMail will not collect or maintain any information about the Messages Users send through the Service, including the addresses to whom Messages are sent and the content of the Messages.
GENERAL USAGE PATTERNS
IncrediMail may gather information related generally to Users' use of the Software, Service, and Site including without limitation:
The number of Messages that a User sends;
The number of Messages that are read;
What elements of the Service are most often used;
User log-in dates and time; and
Message size data.
This information, which will only be collected and maintained in aggregate, anonymous form, will be used to, among other things:
Provide IncrediMail with a better understanding of how Users use the Service and the various features thereof;
Help IncrediMail to create and provide new services and offerings to Users; and
Conduct and publish aggregate, anonymous, market research results.
COMPUTER SETTINGS
IncrediMail may collect settings, technical and other information from Users' computers, such as a computer's operating system, IncrediMail and browser versions used, connectivity, various communication parameters and other information related to the operation and interaction of the Software, subject to the provisions herein. This information will neither contain nor be linked to any personally identifiable information.
COOKIES
"Cookies" are pieces of information that are placed on an individual's computer hard drive to enable the individual to more easily communicate and interact with the Service and Web Site. IncrediMail may use cookies to save certain information about a User and others who visit the IncrediMail Web Site, in order to facilitate and enhance future activities with the Service and/or Web Site. IncrediMail does not use cookies to retrieve information from a computer that is unrelated to the Service.
We may use an outside advertising company to display advertisements on the Site and Service. These ads may contain cookies. The advertisement company may collect cookies received with outside ad banners. We do not have access to information that would confirm the use of cookies by the advertising company.
IP ADDRESSES
An Internet Protocol address is a number that's automatically assigned to a computer when using the Internet. Web servers can automatically identify individual computers by their IP address. IncrediMail may collect IP addresses to:
Facilitate system administration;
Diagnose system problems;
Report aggregate User information; and
Avoid hacking attacks on the IncrediMail server.
IncrediMail does not link IP addresses to any personally identifiable information, even if such information is voluntarily provided by a User.
ACCESS TO INFORMATION; UPDATE
A User may review and update his/her information by accessing "Tools-Options" on the IncrediMail Menu.
CONSENT TO PROCESSING
Users, including without limitation, Users in the European Union, fully understand and unambiguously consent to the collection and processing of their personally identifiable and non-personally identifiable information, in the United States.
LEGAL DISCLOSURE OF INFORMATION
Notwithstanding anything to the contrary in this Agreement, IncrediMail shall, pursuant to valid legal process such as a search warrant, subpoena or court order, allow access to all available and relevant information, including Users' IP addresses, in order to comply with such valid legal process and to otherwise protect IncrediMail's rights and property. If warranted, IncrediMail may also allow access to this information in special emergencies where physical safety is at risk.
SECURITY
While there is no such thing as "perfect security" on the Internet, we will take all reasonable steps to insure the safety of your personally identifiable information.
OTHER WEB SITES; LINKS
The Site and/or Service may contain links to other Web sites. IncrediMail is not responsible for the privacy practices or the content of such Web sites.
CHOICE; OPT OUT
Our Site provides Users the opportunity to opt-out of receiving certain communications from us. If you do not want to receive communications from us, please contact our customer service center at support@incredimail.com.
All questions concerning the IncrediMail Privacy Policy should be directed to privacy@incredimail.com.
7. USER CONDUCT
While using the Service and Site you agree not to:
Harass, threaten, embarrass or cause distress or discomfort to, or restrict or inhibit access by, another User, or any other individual or entity;
Impersonate any other person or entity, including without limitation any IncrediMail official, or misrepresent your affiliation with any other person or entity;
Advertise or solicit pyramid schemes, investment opportunities or other schemes or engage in spamming or flooding;
Send or transmit any information or software which contains a virus, trojan horse, worm or other harmful component;
Send unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, racist, or otherwise objectionable information of any kind;
Send:
Information, software or other material obtained through the Service that is protected by copyright or other proprietary or intellectual property right, or derivative works with respect thereto, without obtaining permission of the copyright owner or rightholder;
Any component of the Service itself or derivative works with respect thereto, as the Service is copyrighted under applicable copyright laws and may be covered under one or more patents pending; or
Any information, software or other material obtained through the Service for commercial purposes (other than as expressly permitted herein, or by the provider of such information, software or other material);
Copy or Use:
Information, software or other material that is protected by copyright or other proprietary or intellectual property right, or derivative works with respect thereto, without obtaining permission of the copyright owner or rightholder;
IncrediMail has not currently defined a maximum limit on the number or content of Messages that may be sent by an individual User or by all Users in the aggregate. You acknowledge and agree, however, that IncrediMail reserves the right to, from time to time and any time, change these general practices and limits at any time, in its sole discretion, with or without notice to You or any other User.
8. RISKS
THE SOFTWARE, SERVICE AND SITE MAY BE VULNERABLE TO VARIOUS SECURITY ISSUES AND SHOULD NOT BE CONSIDERED SECURE. BY USING THE SOFTWARE, SERVICE AND SITE YOU MAY BE SUBJECT TO VARIOUS RISKS, INCLUDING AMONG OTHERS:
Unauthorized exposure of information and material you post on or through the Service.
Exposure to objectionable material and/or parties, including without limitation, content and messages that may offend and which may contain contaminated files.
Unauthorized invasion of your privacy during, or as a result of, your or another's use of the Service.
Spoofing, eavesdropping, sniffing, spamming, breaking passwords, harassment, fraud, forgery, "imposturing", electronic trespassing, tampering, hacking, nuking, system contamination including without limitation use of viruses, worms and Trojan horses causing unauthorized, damaging or harmful access and/or retrieval of information and data on your computer and other forms of activity that may even be considered unlawful.
IF YOU DO NOT WISH TO BE SUBJECTED TO THESE RISKS, YOU ARE ADVISED NOT TO USE THE SOFTWARE OR SERVICE.
9. INTELLECTUAL PROPERTY RIGHTS
As between IncrediMail and you, IncrediMail is the sole owner of the Software, Service, and Site, including without limitation, all applicable U.S. and non-U.S. copyrights, patents, trademarks, and trade secrets, and other intellectual property rights thereto. Except as otherwise specifically provided in these Terms and Conditions, you may not download or save a copy of the Service or Site or any portion thereof, for any purpose. You may, however, print a copy of individual screens appearing as part of the Service and Site solely for your personal use or records. All title and intellectual property rights in and to the content of any third party web site which may be linked to or viewed in connection with the Service is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content except as allowed by such third party.
10. UNSOLICITED MATERIALS
Any confidential, secret or proprietary information or other material submitted or sent to IncrediMail, including without limitation via any Message sent by You through the Service, Site, or IncrediMail's physical mail and e-mail addresses, or in any other way, will be deemed to be not confidential or secret. By submitting or sending information or other material to IncrediMail or by posting information on any portion of the Service you:
(a) Warrant that you have all rights of any kind to the material and that to the best of your knowledge no other party has any rights to the material; and
(b) Grant IncrediMail an unrestricted, perpetual, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute the material, and you further agree that IncrediMail is free to use any ideas, know-how, concepts or techniques you send us or post on the Service for any purpose, without any compensation to you or any other person.
11. DISCLAIMER OF WARRANTIES
THE SOFTWARE, SERVICE AND SITE ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITATION OF THE FOREGOING, INCREDIMAIL SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (i) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, INTEROPERABILITY, OR CONTENT OF THE SOFTWARE, SERVICE OR SITE ; AND (ii) ANY WARRANTIES OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY THE SOFTWARE, SERVICE OR SITE, INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. INCREDIMAIL DOES NOT WARRANT OR GUARANTEE THAT ALL SOFTWARE VERSIONS SHALL BE PROVIDED WITH SIMILAR GRADES AND LEVELS OF SERVICE, FEATURES, FUNCTIONALITY AND THE ABILITY TO USE THE SOFTWARE OR THE SERVICE. INCREDIMAIL DOES NOT WARRANT OR GUARANTEE (1) THAT ANY PROGRAM OR PORTION OF THE SERVICE WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (2) THAT THE FUNCTIONS OR SERVICES PERFORMED BY INCREDIMAIL WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SOFTWARE AND THE SERVICE WILL BE CORRECTED. IT IS YOUR SOLE RESPONSIBILITY TO ISOLATE THE SOFTWARE AND INFORMATION, EXECUTE ANTI-CONTAMINATION SOFTWARE AND OTHERWISE TAKE STEPS TO ENSURE THAT SOFTWARE OR OTHER INFORMATION OBTAINED FROM THE SERVICE OR OTHER USERS, IF CONTAMINATED OR INFECTED, WILL NOT DAMAGE YOUR INFORMATION OR SYSTEM.
12. LIMITATION OF LIABILITY
IN NO EVENT WILL INCREDIMAIL, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AFFILIATES, SUCCESSORS OR ASSIGNS, BE LIABLE TO ANY PARTY (i) FOR ANY INDIRECT, DIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SITE, SOFTWARE, OR SERVICE, EVEN IF INCREDIMAIL SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF ANY OTHER SOFTWARE OR OTHER CONTENT INCLUDED AS PART OF THE SERVICE OR BY THE SITE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, INCREDIMAIL'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT WILL INCREDIMAIL'S LIABILITY WITH RESPECT TO THE USE OF THE SOFTWARE AND SERVICE EXCEED THE HIGHER OF (I) ONE HUNDRED ($100) U.S. DOLLARS, OR (II) THE ACTUAL CONSIDERATION RECEIVED BY INCREDIMAIL FOR THE USE OF THE SOFTWARE AND SERVICE.
13. INDEMNIFICATION
By agreeing to use the Software, Service and/or Site, you agree to defend, indemnify and hold IncrediMail, its affiliates, officers, directors and employees harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees, arising in any way from your use of the Service or Site or the creation, the placement or transmission of any message, information, software or other materials through the Service by you or users authorized by You or related to any violation of these Terms and Conditions by You or any user authorized by you.
14. CANCELLATION AND TERMINATION
IncrediMail may, at its sole discretion, terminate the Service or your use of the Service, permanently or temporarily, at any time and without cause. You may at any time cancel your use of the Service by sending an e-mail message to cancel@incredimail.com requesting that we cancel your membership in the Service. Upon cancellation or termination, you will immediately cease all use of any software and any documentation provided to you by the Service and return or destroy all copies thereof. Except as otherwise expressly provided herein, all sections of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, indemnities, warranty disclaimers, and limitations of liability. Termination is not an exclusive remedy and we reserve all other available remedies in contract, law or equity.
15. LINKED SITES
The Software, Service and Site contain features that may link you to third parties' web sites ("Linked Sites"). These features are provided by IncrediMail only as a convenience. The Linked Sites are not reviewed, controlled or examined by IncrediMail in any way and IncrediMail is not responsible for the content of any such Linked Sites, or any additional links contained therein. The offering of these features does not imply IncrediMail's endorsement of or association with the Linked Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall IncrediMail be liable to anyone for any damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed-through these Linked Sites. IncrediMail may at its sole discretion add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the IncrediMail Software and Service and/or introduce different features or links to different users.
16. COPYRIGHTS AND COPYRIGHT AGENT
If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:
Your address, telephone number, and email address;
A description of the copyrighted work that you claim has been infringed;
A description of where the alleged infringing material is located;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
IncrediMail may, at its sole discretion, terminate the accounts of users who infringe others' intellectual property rights.
17. PROVISIONS UNENFORCEABLE OR INVALID
If any part of this agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
18. ASSIGNMENT
You shall not transfer, assign, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under this Agreement. IncrediMail may transfer, assign sublicense or pledge in any manner whatsoever, any of its rights and obligations under this agreement to a subsidiary, affiliate, or successor thereof or to any third party whatsoever, without notifying you or receiving your consent.
19. APPLICABLE LAWS / JURISDICTION
You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national or other destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to or through the Service any data or software that cannot be exported out of the United States without prior written government authorization, including but not limited to, certain types of encryption software. The above assurance and commitment shall survive termination of this agreement.
You agree that the laws of the State of New York, excluding its conflicts-of-law rules, shall govern this Agreement. Please note that your use of the Software as well as the Service and Site may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with IncrediMail or relating in any way to your use of the Software, Service or Site resides in the courts of the State of New York, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of New York, in connection with any such dispute and including any claim involving IncrediMail or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers.
