SHAZZLE LLC, COMMERCIAL LICENSE AND TERMS OF SERVICE
«Both of us» means both You and Shazzle, LLC.
«Charges» include all assessed charges, recurring fees, applicable taxes and other fees.
«Content» includes information such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images which You may provide or have
access to as part of or through Your use of the System.
«Materials» means any text, data, or information downloaded or otherwise obtained through use of the System.
«Minor» means an individual who is under 18 years of age.
«Personnel» includes an employee, consultant or other service provider who uses the account to serve the needs of, and solely for the benefit of, the Primary User.
«Service Suspension» is a permanent or temporary cessation of System availability, or of any features within the System.
«Software» means the software provided to Shazzle users, in the form provided by Shazzle as part of the System.
«Sub Users» are the Primary User’s clients.
The «System» includes Shazzle, LLC’s products, software and services.
«You» or «Your» means the person, company, or entity who is acquiring the license to use the System under this Agreement.
«We» or «Us» means Shazzle LLC.
2. ELIGIBILITY TO USE THE SYSTEM
If You are entering into this Agreement on behalf of a company or other organization, You reprsent that You have the authority to bind that company or organization to this Agreement. We may cancel this Agreement if We determine, in our sole discretion, that You do not have the a propriate authority.
You are under 16 years of age. Our services are not available to persons under 16 years of age.
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 a resident or from which You use the System.
You agree that You will not directly or indirectly export technical data to any country for which a validated license is required under United States law without first obtaining a validated license.
You represent and warrant that You are not a national of, or under the control of, any country upon which the United States has imposed an embargo of goods.
This Agreement and Your license granted under this Agreement are personal to You, Your Personnel and Your Sub Users, and do not include the right to sublicense Your rights under this Agreement to any third party.
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. 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.
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.
4. LIMITATIONS ON ACCESS TO THE SYSTEM
You agree not to access or attempt to access the System by any means other than through the interface that is provided by Us, unless We have specifically allowed You to do so via a separate written agreement. Without limiting the generality of the foregoing, You specifically agree not to access or attempt to access the System through any automated means including but not limited to the use of scripts or crawlers. Similarly, You agree that You will not provide any third party with access to material on the System or facilitate their attempt to access the System by any means other than through the interface that is provided by us, unless We have specifically allowed You to do so in a separate written agreement.
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 agree that You will not reproduce, duplicate, copy, sell, trade or resell access to or any part of the System for any purpose.
You agree not to use the System in any manner that violates this Agreement, or 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 relating to the System, and any export or re-export laws, rules and regulations; or to 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.
5. USER NAME, PASSWORDS AND ACCOUNT SECURITY
When You create an account, You may be asked to supply certain information such as Your name, a User ID and a password. Your User ID must not be vulgar, derogatory, inappropriate, or misleading and is at all times subject to rejection by Us. You are responsible for maintaining the confidentiality of Your password and account and are fully responsible for all activities that occur in connection with Your password or account. You agree to immediately notify Us of any unauthorized use of either Your password or account or any other breach of security. You further agree that You will not permit others, including those whose accounts have been terminated, to access the System using Your account or User ID. You grant Shazzle and all other persons or entities involved in the operation of the System the right to transmit, monitor, retrieve, store, and use Your information in connection with the operation of the System. Shazzle cannot and does not assume any responsibility or liability for any information You submit, or Your or third parties’ use or misuse of information transmitted or received using this System.
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.
6. HIPAA COMPLIANCE
Use of the System does not guarantee compliance with the Health Insurance Portability and Accountability Act (HIPAA) and its associated regulations, but Shazzle Mail can be an important component in a HIPAA-compliant structure.
7. ELECTRONIC SIGNATURE
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 and pursuant to any applicable statutes, regulations, rules, ordinances or other laws. 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.
8. PAYMENT FOR THE SYSTEM (NOT APPLICABLE TO BETTA 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, and to charge users who use Shazzle for commercial purposes. Users who are or who become subject to charges agree to pay all Charges incurred to their account at the rates in effect for the billing period in which those charges are incurred. Information about current rates will be made available on the ShazzleMail website
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 the date of the invoice. Interest on all overdue and unpaid invoices shall be payable at the rate of one percent (1.0%) per month or at the maximum rate permitted by law, whichever is less, until paid in full. All fees are denominated and to be paid in United States Dollars and are exclusive of any applicable taxes. 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.
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.
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 such problems or discrepancies to our attention within 90 days, You agree that You waive Your rights to dispute them.
If Your account is delinquent, We may, at our sole discretion, suspend or cancel Your account. If Your account is suspended, regular Charges continue to accrue until the account is canceled.
We reserve the right to change our policy on pricing in the future, and to change rates or institute new Charges at any time upon 30 days prior notice.
9. CONTENT, CONFIDENTIALITY AND INTELLECTUAL PROPERTY
All intellectual property rights in this System, whether those rights happen to be registered or not, and wherever in the world those rights may exist, are owned by or licensed to Us. You may not in any form or by any means without our prior written permission:
use, adapt, reproduce, store, distribute, print, display, perform, publish or create derivative works from any part of this System; or
commercialize any information, products or services obtained from any part of this System.
The System may contain information which is designated confidential by Us and You shall not disclose such information without our prior written consent.
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.
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.
10. TERMINATING YOUR USE OF THE SYSTEM
If You want to terminate this Agreement, You may do so by (a) notifying Us at any time, and (b) closing all of Your System user accounts.
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.
THE SYSTEM (INCLUDING ANY ADVERTISING DISPLAYED THEREON) AND ANY MATERIALS OBTAINED THROUGH USE OF THE SYSTEM, IS MADE AVAILABLE “AS IS” or “AS-AVAILABLE”. 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 INFO MATION, 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.
We do not represent or guarantee that access to the System will be uninterrupted or error free. You acknowledge that the System may be affected by outages, faults or delays. Such outages, faults or delays may be caused by factors, including technical difficulties with the performance or operation of our or another person’s software, equipment or systems, traffic or technical difficulties with the Internet or infrastructure failures. In addition, We accept no liability for any failure to comply with this Agreement where such failure is due to circumstances beyond our reasonable control.
We do not accept responsibility for any loss or damage, however caused (including through negligence), that You may directly or indirectly suffer in connection with Your use of the System or any linked website, nor do We accept any responsibility for any such loss arising out of Your use of or reliance on information contained on or accessed through the System.
To the extent permitted by law, any condition or warranty that would otherwise be implied into these terms and conditions is hereby excluded. Where legislation implies any condition or warranty, and that legislation prohibits Us from excluding or modifying the application of, or our liability under, any such condition or warranty, that condition or warranty will be deemed included but our liability will be limited for a breach of that condition or warranty to one or more of the following:
If the breach relates to goods:
the replacement or repair of such goods or the supply of equivalent goods; or
If the breach relates to services:
the supplying of the services again; or
the payment of the cost of having the services supplied again.
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 OR SUB-USERS SUBMIT, POST TO, TRANSMIT OR COMMUNICATE THROUGH THE SYSTEM; YOUR, YOUR PERSONNEL, OR YOUR SUB-USER’S USE OR MISUSE OF THE SYSTEM; YOUR, YOUR PERSONNEL OR YOUR SUB-USER’S CONNECTION TO OTHER USERS; YOUR, YOUR PERSONNEL, OR YOUR SUB-USER’S VIOLATION OF THESE TERMS, OR YOUR, YOUR PERSONNEL OR YOUR SUB-USER’S VIOLATION OF ANY RIGHTS OF ANOTHER.
13. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL SHAZZLE OR ANY OF ITS EMPLOYEES, DIRECTORS, OFFICERS, AGENTS, VENDORS OR SUPPLIERS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SYSTEM OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SYSTEM OR FOR ANY INFORMATION, PRODUCTS OR SERVICES OBTAINED THROUGH THE SYSTEM, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF AN AUTHORIZED REPRESENTATIVE OF SHAZZLE HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, IN NO EVENT SHALL SHAZZLE’S LIABILITY UNDER THIS AGREEMENT, INCLUDING FOR DIRECT DAMAGES, EXCEED THE AMOUNT YOU HAVE PAID SHAZZLE UNDER THIS AGREEMENT.
14. 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.
All notices under this Agreement should be sent, in writing, to our address: Shazzle LLC, 14 Storrs Avenue, Braintree, MA 02184.
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.