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Terms of Use


These TERMS OF SERVICE (this “Agreement”) is made between MessageGears, LLC
(“MessageGears”) and you, or, if you represent an entity or other organization,
that entity or organization (in either case “You”).

MessageGears provides certain services relating to the development,
transmission, analysis, and management of email messages (the “Services”)
through the web site located at www.messagegears.com and such other sites as may
be designated by MessageGears (each, the “Site” or collectively, the “Sites”).

All access to and use of the Services available through the Site is subject to
the terms of this Agreement. If You wish to access and use the publicly
available portions of the Services and the Site, You may do so only in
compliance with the terms of this Agreement. If You have placed or later place
an order (whether through the Site, by email, phone or otherwise) with
MessageGears (Your “Order”) seeking to access and use certain of the Services
requiring registration, MessageGears is willing to accept Your Order and provide
You with access to and use of those Services only if You comply with the terms
and conditions of this Agreement.

Without limiting the foregoing, the Services are not available to individuals
under the age of 18 or who do not meet any of the other qualifications included
in this agreement.

PLEASE CAREFULLY READ THIS AGREEMENT. BY SUBMITTING AN ORDER OR BY ACCESSING OR
USING THE SITE OR SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND
BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS
INCLUDED IN THIS AGREEMENT, MESSAGEGEARS IS NOT WILLING TO PROVIDE YOU WITH
ACCESS TO OR USE OF THE SITE OR SERVICES AND YOU MUST NOT ACCESS OR USE THE SITE
OR SERVICES. IF YOU ACCESS OR USE THE SITE OR SERVICES, YOU ACKNOWLEDGE THAT YOU
MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS
AGREEMENT.

This Agreement is entered into as of the earlier of the date You first submit an
Order relating to the Services or first access or use the Services or a Site
(the “Effective Date”). This Agreement consists of the following terms and
conditions and each Order submitted by You and accepted by MessageGears, each of
which is incorporated in and made a part of this Agreement. Unless otherwise
amended as provided herein, this Agreement will exclusively govern Your access
to and use of the Services and the Sites and is the complete and exclusive
understanding and agreement between the parties, and supersedes any oral or
written proposal, agreement or other communication between the parties,
regarding Your access to and use of the Services and the Sites. Except as
expressly set forth in this Agreement, this Agreement may be amended or modified
only by a writing signed by both parties. All waivers under this Agreement must
be in writing. Any waiver or failure to enforce any provision of this Agreement
on one occasion will not be deemed a waiver of any other provision or of such
provision on any other occasion.

MessageGears reserves the right, at any time, to change or modify the Site,
Services or this Agreement, by making such change or modification available on
the Site or by providing other notice to You. Any such change or modification
will be effective [30] days after posting on the Site or upon provision of such
other notice. As applicable, You will be deemed to have agreed to such change or
modification through Your continued use of the Site or Services.

1) Definitions. Terms used in this Agreement will have the definitions given in
this Agreement.

2) Orders and Confirmation. All Orders placed by You will be governed by the
terms of this Agreement. MessageGears will confirm Your Order either through the
Site at the time you submit Your Order or by providing You with access to the
Services (each, a “Confirmation”). If the terms of any Order conflict with the
terms of any Confirmation of that Order, the terms of the Confirmation will
govern and control with respect to the Services provided to You. This Agreement
will govern and control the terms of each Order and Confirmation under this
Agreement. By accessing or using any of the Services, You agree to be bound by
the terms of this Agreement and each applicable Order and Confirmation with
respect to those Services.

3) Term. This Agreement will be effective upon the Effective Date. If You have
ordered a trial subscription to the Services or a subscription to any free
Services, as indicated in an applicable Order or Confirmation (a “Trial/Free
Subscription”), then the term of this Agreement will continue for the period of
the Trial/Free Subscription indicated in the applicable Order or Confirmation
and will thereafter expire unless You place an Order for a non-trial
subscription to the Services prior to the completion thereof. If You have
ordered a non-trial subscription to the Services, then the term of this
Agreement will continue for the initial period stated in the applicable Order or
Confirmation for the Services and will thereafter automatically renew for
successive additional periods of equal duration. If no initial period is stated
in the applicable Order or Confirmation for the Services, this Agreement will
continue for an initial period of 1 month and will thereafter automatically
renew for successive additional 1-month periods. Unless terminated as set forth
herein, the term of this Agreement will continue to renew until You notify
MessageGears that You do not wish to renew the Agreement at least 10 days prior
to the end of the then-current period. In all other cases, the term of this
Agreement will continue until terminated as set forth herein.

4) Subscription. Subject to this Agreement, during the term of this Agreement
MessageGears will provide You with a limited subscription to access and use the
Services subject to Confirmations under this Agreement, solely for Your own use
in connection with your own business purposes. Your rights to access and use the
Services are personal, non-exclusive, non-transferable and non-sublicensable.
You understand that MessageGears may from time to time, in its sole discretion,
update, change, revise, suspend or discontinue the Services (or any portion
thereof) with or without notice.

5) Access to the Services. Upon Confirmation of Your Order by MessageGears, the
rights granted to You under this Agreement entitle You to access the Services
through accounts (each, an “Account”). You will be provided with a user
identification and password applicable to each Account You have purchased (each
such user identification and password, an “Account ID”). Each Account ID is
personal in nature and may be used only by You or, if You are an organization,
by designated employees within Your organization or contractors who are
contractually required to comply with the terms of this Agreement (such
individual, as applicable, the “User” of the Account). You are solely
responsible for all use of the Services by each User and for compliance by each
User with the applicable terms of this Agreement. You will ensure the security
and confidentiality of each Account ID and will notify MessageGears immediately
if any Account ID is lost, stolen or otherwise compromised. You acknowledge that
You are fully responsible for all costs, fees, liabilities or damages incurred
through use of each Account ID (whether lawful or unlawful) and that any
Services ordered or transactions completed through any Account or under any
Account ID will be deemed to have been lawfully completed by You. In no event
will MessageGears be liable for the foregoing obligations or the failure by You
to fulfill such obligations. You will be solely responsible, at Your own
expense, for acquiring, installing and maintaining all hardware, software and
other equipment as may be necessary for You and each User to connect to, access,
and use the Services and the Sites.

6) Applicable Policies. In addition to the terms of this Agreement, Your access
to and use of the Site and Services is subject to MessageGears’s then-current
policies relating to the Site and Services, including, without limitation, the
MessageGears Privacy Policy and Email Policy available on the Site. You are
responsible for compliance with these policies and all other MessageGears
policies applicable to the access and use of the Services posted to the Site or
provided through Services.

7) Restrictions. You acknowledge that the Services, Sites, Software, and the
databases, software, hardware and other technology used by or on behalf of
MessageGears to provide the Services and operate the Sites (the “Technology”)
and their structure, organization, and underlying data, information and source
code constitute valuable trade secrets and Confidential Information of
MessageGears. You will not, and will not permit any third party to: (1) access
or use the Services or the Sites, in whole or in part, except as expressly
provided in this Agreement; (2) use the Site, Services or any Software to
harvest or collect e-mail addresses or other contact information of third
parties by any means for the purposes of sending unsolicited e-mails or other
unsolicited communications; (3) use the Site, Services or any Software in any
unlawful manner or in any other manner that could damage, disable, overburden or
impair the Site or Services; (4) use automated scripts to collect information
from or otherwise interact with the Site, Services or any Software; (5) use the
Site, Services or any Software to intimidate or harass any other people or
entities; alter, modify, reproduce, create derivative works of the Services,
Technology, or any Software; (6) distribute, sell, resell, lend, loan, lease,
license, sublicense or transfer any of Your rights to access or use the Services
or any Software, including, without limitation, providing outsourcing, service
bureau, hosting, application service provider or on-line services to third
parties, or otherwise make the Services or any Software, or access thereto,
available to any third party; (7) reverse engineer, disassemble, decompile, or
otherwise attempt to derive the source code or method of operation of or any
trade secrets embodied in the Site, Services, Technology or any Software; (8)
attempt to circumvent or overcome any technological protection measures intended
to restrict access to any portion of the Sites, Services, Technology, or any
Software; or (9) interfere in any manner with the operation or hosting of the
Sites, Services, Technology or any Software, or attempt to gain unauthorized
access to the Sites, Services, Technology or any Software. You will not allow
any access to or use of the Services by anyone other than Your authorized Users,
and any such use will be consistent with the terms, conditions and restrictions
set forth in this Agreement.

8) Fees and Payment. You agree to pay MessageGears all fees set forth in each
Order or Confirmation and any fees otherwise specified on the Site or through
the Services (“Fees”). All Fees will be billed as indicated in each Order or
Confirmation. If the applicable Order or Confirmation does not specify any
applicable billing terms, the initial payment of Fees specified under that Order
or Confirmation for each period in Your subscription will be due and payable by
You in advance on or before the Effective Date and again on or before the
completion of each subsequent period under this Agreement. If You have specified
credit card or direct withdrawal from a bank account as an applicable payment
mechanism under this Agreement, You grant MessageGears the right to charge the
credit card or debit the bank account provided to MessageGears for all Fees
incurred under this Agreement. All Fees will be non-refundable once paid to
MessageGears (including upon any termination or suspension of this Agreement).
Until paid in full, all past due amounts will bear an additional charge of the
lesser of 1 1/2% per month or the maximum amount permitted under applicable law.
MessageGears may change any portion of the Fees by posting the changes to the
Sites or otherwise notifying You through the Services of the change, such
changes to take effect at the beginning of the next period of this Agreement. If
MessageGears requires use of collection agencies, attorneys, or courts of law
for collection on Your account, You will be responsible for those expenses. You
will be responsible for all use, sales, and other taxes imposed on the Services
provided under this Agreement.

9) Termination and Suspension. This Agreement may be terminated by MessageGears,
at any time, in MessageGears’s sole discretion: (1) upon any breach by You of
this Agreement that remains uncured ten (10) days after MessageGears delivers
written notice to You of such breach (or immediately if such breach is uncurable
in the sole discretion of MessageGears); or (2) at any time during any
Trial/Free Subscription, for any reason or no reason, upon notice to You.
Without limiting MessageGears’s right to terminate this Agreement, MessageGears
may also immediately and indefinitely suspend Your access to the Sites or
Services, with or without notice to You, upon any actual, threatened or
suspected breach of this Agreement or of applicable law or upon any other
conduct deemed inappropriate or detrimental to the Services by MessageGears.
Upon termination or expiration of this Agreement for any reason: (a) all rights
and subscriptions granted to You under this Agreement will terminate; (b) You
will immediately cease all use of and access to the Sites and Services; (c) all
Fees then owed by You will become immediately due and payable; (d) You will
immediately either return to MessageGears or, at MessageGears’s discretion,
destroy the MessageGears Content, Account IDs, MessageGears Confidential
Information, and other information related to this Agreement in Your possession
or control; and (e) MessageGears may delete any of Your Content held by
MessageGears within 10 days after the date of termination. Sections 6
(Applicable Policies), 7 (Restrictions), 8 (Fees and Payment), 9 (Termination
and Suspension), 10 (Your Content), 11.2 (Warranties and Disclaimer: Indemnity
by You); 11.3 (Warranties and Disclaimer: Warranty by You); 11.4 (Warranties and
Disclaimer: Disclaimer), 12 (Limitation on Liability), 13 (Data Privacy), 14
(Confidentiality), 15 (Governing Law), 16 (Disputes), and 17 (General) will
survive any expiration or termination of this Agreement.

10) Your Content. You will be solely responsible for all data, information and
other content provided by, or collected or obtained from, You or any of Your
Users through the Services, including, without limitation, all personally
identifiable information relating to You or any of Your Users, customers,
service providers, employees, contractors or agents (“Your Content”). You grant
to MessageGears all necessary rights and licenses in and to Your Content
necessary for MessageGears to provide the Services under this Agreement. As
between You and MessageGears, You retain all of Your rights in and to Your
Content and do not convey any proprietary interest therein to MessageGears other
than the licenses set forth herein. You represent and warrant that none of Your
Content violates this Agreement or the Email Policy or Privacy Policy. You will
maintain an adequate back-up of all Your Content and MessageGears will not be
responsible or liable for any deletion, correction, destruction, damage, loss or
failure to store or back-up any of Your Content. MessageGears may take remedial
action if any of Your Content violates this Agreement, provided that
MessageGears is under no obligation to review any of Your Content for accuracy
or potential liability. You represent and warrant to MessageGears that You have
all necessary right, title, interest and consent necessary to allow MessageGears
to use Your Content for the purposes for which You provide Your Content to
MessageGears, including, without limitation, the delivery of any and all emails
and other communications. You will defend, indemnify and hold harmless
MessageGears from any and all losses, costs, damages, liabilities or expenses
(including without limitation reasonable attorney’s fees) incurred or arising
from any claim by a third party arising out of or relating to Your Content or
the use thereof by MessageGears in providing the Services.

11) Warranties and Disclaimer 11.1) By MessageGears. Except in the case of any
Services provided during a Trial/Free Subscription, MessageGears represents and
warrants to You that MessageGears will use commercially reasonable efforts to
maintain and verify that the Services operate in accordance with this Agreement.
MessageGears’s sole obligation and Your sole and exclusive remedy in the event
of any failure by MessageGears to comply with the foregoing sentence will be for
MessageGears to, at MessageGears’s option, re-perform the affected Services or
refund to You the fees You have actually paid for the affected Services during
the month in which the failure occurred.

11.2) Indemnity by You. Notwithstanding anything in Section 11.1 to the
contrary, You remain solely and entirely responsible for Your compliance with,
and will defend, indemnify and hold harmless MessageGears from and against any
claims arising from any actual or alleged violation by You of any international,
federal, state or local treaties, laws, rules, regulations or ordinances
regarding Your use of or access to the Site or Services or regarding your
business, products or services, including, without limitation, regarding data
and data privacy and the transmission of electronic mail messages, whether
solicited or unsolicited.

11.3) Warranties By You. You hereby represent, warrant, and covenant for the
benefit of MessageGears that: (1) You have the legal right and authority to
enter into this Agreement, and, if You are accepting this Agreement on behalf of
a company or other entity, to bind the company or other entity to the terms of
this Agreement; (2) You have the legal right and authority to perform Your
obligations under this Agreement and to grant the rights and licenses described
in this Agreement and in any applicable additional agreement You enter into in
connection with any of the Services; and (3) Your Content, and any other data,
information or content You provide to MessageGears in connection with this
Agreement and Your access to the Site and use of the Services, is correct and
current.

11.4) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 11, THE SITES
AND SERVICES (AND ALL MESSAGEGEARS CONTENT PROVIDED THROUGH THE SITES AND
SERVICES) ARE PROVIDED TO YOU STRICTLY “AS IS” AND “AS AVAILABLE” AND
MESSAGEGEARS AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND
REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT,
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR
NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY
MESSAGEGEARS, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE
SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY
SET FORTH IN THIS SECTION 11.

12) Limitation on Liability. IN NO EVENT WILL MESSAGEGEARS BE LIABLE FOR ANY
PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT
LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN
CONNECTION WITH OR OUT OF THE USE OF THE SITES, SERVICES (OR ANY MESSAGEGEARS
CONTENT PROVIDED THROUGH THE SITES OR SERVICES), EVEN IF MESSAGEGEARS HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY
LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR
PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. MESSAGEGEARS’S TOTAL CUMULATIVE
LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS
AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES
PAID TO MESSAGEGEARS HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH INITIAL
OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $10). YOU AGREE
THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND
ACKNOWLEDGE THAT MESSAGEGEARS WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE
LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, MESSAGEGEARS’S LIABILITY
IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

13) Data Privacy. In respect of Your use of the Site and Services and in
relation to any personally identifiable and other data and information You
provide to MessageGears through the Site and Services, You expressly consent to
the use and disclosure of that data and information as described in
MessageGears’s then-current privacy policy displayed on the Site (“Privacy
Policy”) Notwithstanding anything in the Privacy Policy, MessageGears will have
the right to collect, extract, compile, synthesize, and analyze non-personally
identifiable data or information (data or information that does not identify an
entity or natural person as the source thereof) resulting from Your access to
the Site and Your use and operation of the Services (including, by way of
example and not limitation, information relating to volumes, frequencies,
recipients, bounce rates, or any other information regarding the email and other
communications You generate and send using the Services). To the extent any such
non-personally identifiable data or information is collected or generated by
MessageGears, the data and information will be solely owned by MessageGears and
may be used by MessageGears for any lawful business purpose without a duty of
accounting to You, provided that the data and information is used only in an
aggregated form, without directly identifying You, any User or customer, or any
other entity or natural person as the source thereof.

14) Confidentiality. For purposes of this Agreement, “Confidential Information”
means all nonpublic information disclosed or made available under this Agreement
that relates to the Technology, the provision or receipt of the Services, or
either party’s technology, finances, operations, customers or business. For the
avoidance of doubt, (1) the Services, Technology, and MessageGears Content are
the Confidential Information of MessageGears, (2) all data regarding Your email
recipients, including without limitation, identities and email addresses are
Your Confidential Information, and (3) the data and information specified in
Section 15 will not be Your Confidential Information. Each party agrees to
protect the other party’s Confidential Information with the degree of care that
such party uses to protect its own confidential information of like nature, but
in no case less than reasonable care. Each party agrees that, except as
expressly directed by the other party, it will not at any time during or after
the term of this Agreement: (1) disclose any Confidential Information to any
third party; (2) permit any third party to examine and/or make copies of any
reports, documents or electronic data containing Confidential Information; or
(3) use any of the Confidential Information for any reason other than for the
purposes of this Agreement. Each party may disclose Confidential Information to
personnel having a need to receive the Confidential Information in the
performance of their duties under this Agreement, provided, however, that such
personnel are informed of the confidentiality obligations hereunder and each
party uses its best efforts to ensure their compliance therewith. If either
party is required to disclose the other party’s Confidential Information
pursuant to any statute, regulation, order, subpoena or document discovery
request, it will furnish written notice of such disclosure to the other party as
soon as practicable in order to afford such party the opportunity to seek a
protective order and the party required to make such disclosure will reasonably
cooperate in such efforts (at the other party’s reasonable expense). In the
event of any conflict between the Privacy Policy and the provisions of this
Section 16, the provisions of this Section 16 shall control.

15) Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with the laws of the State of Georgia without regard to
its rules governing conflicts of law.

16) Disputes. The parties (a) hereby irrevocably and unconditionally submit to
the exclusive jurisdiction of the state or federal courts located in or with
responsibility for Fulton County, Georgia to resolve any disputes arising
hereunder, (b) agree not to commence any suit, action or other proceeding
arising out of or based upon this Agreement except in such courts and (c) hereby
waive, and agree not to assert, by way of motion, as a defense, or otherwise, in
any such suit, action or proceeding, any claim that it is not subject personally
to the jurisdiction of such courts, that its property is exempt or immune from
attachment or execution, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is improper
or that this Agreement or the subject matter hereof may not be enforced in or by
such court.

EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION
DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF
THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY
BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING
NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY
CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND
THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS.

17) General. If any provision of this Agreement is held to be unenforceable,
that provision will be removed to the extent necessary to comply with the law,
replaced by a provision that most closely approximates the original intent and
economic effect of the original to the extent consistent with the law, and the
remaining provisions will remain in full force. The prevailing party in any
lawsuit or proceeding arising from or related to this Agreement will be entitled
to receive its costs, expert witness fees and reasonable attorneys’ fees,
including costs and fees on appeal. Neither this Agreement nor any rights or
obligations of You hereunder may be assigned or transferred by You (in whole or
in part and including by sale, merger or operation of law) without the prior
written approval of MessageGears. Any assignment in violation of the foregoing
will be null and void. MessageGears may assign this Agreement to any party that
assumes MessageGears’s obligations hereunder. The parties hereto are independent
parties, not agents, employees or employers of the other or joint venturers, and
neither acquires hereunder any right or ability to bind or enter into any
obligation on behalf of the other. This Agreement (and the Privacy Policy and
Email Policy referenced herein) is the complete and exclusive statement of the
agreement between the parties with respect to the subject matter of this
Agreement, and this Agreement supersedes any proposal or prior agreement, oral
or written, and any other communications between the parties in relation to the
subject matter of this Agreement. MessageGears may reference You as a user of
the Services and use Your name and logo, as applicable, in listings of users of
the Services appearing on the MessageGears web site and for other marketing and
promotional purposes relating to the Services.

Terms Version Date: February 28, 2012

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