Please read these Stealthmail Terms and Conditions (this "Agreement") carefully. This Agreement is between you and Stealthmail Software Ltd ("Stealthmail" or "we" or "us") concerning your use of the Materials and your access to and use of the Stealthmail services and governs the relationship between you and Stealthmail with respect thereto
BY DOWNLOADING OR USING THE MATERIALS OR ACCESSING OR USING THE STEALTHMAIL SERVICES, YOU ACKNOWLEDGE THAT (A) YOU HAVE READ, REVIEWED, AND UNDERSTOOD THIS AGREEMENT IN ITS ENTIRETY, AND (B) YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE STEALTHMAIL SERVICES AND DO NOT DOWNLOAD OR USE THE MATERIALS.
THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION THAT, AS FURTHER SET FORTH IN SECTION 8 BELOW, REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR ANY OTHER COURT PROCEEDINGS, OR CLASS ACTIONS OF ANY KIND.
1.1. Changes. Stealthmail may modify the terms and conditions this Agreement from time to time by notifying you of such changes by any reasonable means, including by posting a revised version of this Agreement at https://stealthmail.com/terms-and-conditions/. Any such changes will not apply to any dispute between you and Stealthmail arising prior to the date on which Stealthmail posted the revised Agreement incorporating such changes, or otherwise notified you of such changes. Your downloading or use of the Materials or use of or access to the Stealthmail services following any changes to this Agreement will constitute your acceptance of such changes. The "Last Updated" legend above indicates when this Agreement was last changed.
1.2. Grant of Rights. Subject to the terms and conditions of this Agreement, Stealthmail hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free, revocable (at any time) right and license during the Term (a) to install and use the Materials, and (b) to access and use the Stealthmail services in connection with your use of the Materials, in each case in connection with your e-mail account(s). Except as set forth in this Section 1.1, no other right or license of any kind is granted by Stealthmail to you hereunder with respect to the Materials or the Stealthmail services. Unless otherwise agreed in writing between the parties, you shall be solely responsible for procuring and complying with any license or right to use any Third Party Services, including those offered by your email services provider. This Agreement and the Privacy Statement shall not apply with respect to any data stored on or manipulated or transmitted by means of your use of Third Party Services.
1.4. User Acknowledgments. You acknowledge and agree that: (a) Stealthmail has the right to manage the Stealthmail services to protect the rights and property of Stealthmail and its licensors and suppliers and to facilitate the proper functioning of the Stealthmail services, including by disabling your access to or use of the Stealthmail services; (b) Stealthmail may discontinue or modify the Stealthmail services at its discretion without liability, provided that if Stealthmail discontinues or materially modifies the functionality or the Stealthmail services, Stealthmail will use commercially reasonable efforts to announce such discontinuation or modification on Stealthmail.com website or through other channels Stealthmail customarily uses to make similar announcements; and (c) the Stealthmail services may be inaccessible from time to time due to planned or unplanned maintenance, or due to unavailability of third party sites or services, including the Third Party Services.
1.5. No Support. Stealthmail is under no obligation to support or maintain the Materials or the Stealthmail services in any way, nor to provide any modification, error correction, bug fix, new release or other update (each an "Update") for the Materials or the Stealthmail services. In the event Stealthmail, in its sole discretion, makes available any Update to you, such Update shall be deemed to be part of the Materials or the Stealthmail services (as applicable) for the purpose of this Agreement and shall be subject to the terms and conditions of this Agreement.
2.1. General. Except as expressly set forth in this Agreement, as between you and Stealthmail, Stealthmail retains all right, title and interest in and to the Materials and the Stealthmail services, including, without limitation, any copy or Derivative thereof or Update thereto. You shall take any action reasonably requested by Stealthmail to evidence, maintain, enforce or defend the foregoing. You shall not take any action to jeopardize, limit or interfere in any manner with Stealthmail's ownership of and rights with respect to the Materials, the Stealthmail services or any Derivative thereof or Update thereto.
2.2. Feedback. You may provide suggestions, requests, recommendations and other feedback concerning your of the Materials and Stealthmail services (including, without limitation, any errors or difficulties discovered with respect thereto) (the "Feedback"). You agree that all Feedback shall be the sole property of Stealthmail and assign to Stealthmail all right, title and interest in and to all Feedback.
3.1. Responsibility for User Content. Stealthmail does not monitor User Content or the content third parties create or distribute using the Stealthmail services, nor does Stealthmail have the ability to decrypt User Content that has been encrypted by you. Stealthmail has no responsibility to retain any User Content. Following expiration or termination of this Agreement, Customer may no longer have access to User Content.
3.2. Ownership of User Content. As between you and Stealthmail, you retain all right, title and interest in and to the User Content and any portion thereof, except as expressly granted to Stealthmail herein.
THE MATERIALS AND STEALTHMAIL SERVICES ARE PROVIDED "AS IS" AND STEALTHMAIL DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, RELATING TO THE MATERIALS AND STEALTHMAIL SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. STEALTHMAIL DOES NOT GUARANTEE THE ACCURACY OF THE INFORMATION INCLUDED IN, TRANSMITTED THROUGH, OR MADE AVAILABLE BY THE MATERIALS OR STEALTHMAIL SERVICES, WHICH MAY INCLUDE INACCURACIES OR ERRORS. STEALTHMAIL DOES NOT GUARANTEE THAT THE MATERIALS OR THE STEALTHMAIL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL BE FREE OF BUGS, MALFUNCTIONS, OR HARMFUL COMPONENTS.
FOR THE AVOIDANCE OF DOUBT, STEALTHMAIL MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY THIRD PARTY SERVICES. STEALTHMAIL DOES NOT REPRESENT OR IMPLY THAT IT ENDORSES ANY THIRD PARTY SERVICES, OR THAT IT BELIEVES THE OPERATION OF ANY THIRD PARTY SERVICES WILL BE ACCURATE, USEFUL OR NON-HARMFUL. THIRD PARTY SERVICES MAY HAVE TECHNICAL INACCURACIES, MAY CAUSE MISTAKES OR ERRORS, AND MAY TRANSMIT, STORE, OR OTHERWISE MANIPULATE DATA IN A MANNER THAT IS OBJECTIONABLE TO YOU. YOU ARE RESPONSIBLE FOR TAKING PRECAUTIONS TO PROTECT YOURSELF AND YOUR COMPUTER SYSTEMS IN CONNECTION WITH YOUR USE OF THIRD PARTY SERVICES.
EXCEPT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL STEALTHMAIL OR ITS LICENSORS OR SUPPLIERS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR SIMILAR DAMAGES ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF AND INCURRED BY YOU AS A RESULT OF YOUR USE OF THE STEALTHMAIL SERVICES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST DATA, LOSS OF GOODWILL OR BUSINESS REPUTATION, THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR OTHER TANGIBLE OR INTANGIBLE LOSS, WHETHER IN AN ACTION IN CONTRACT OR TORT..
Except to the extent prohibited under applicable law, you shall defend, indemnify and hold Stealthmail harmless against any loss, liability, damage or cost (including reasonable attorneys' fees) arising out of (a) your use of, or activities in connection with, the Stealthmail services or Materials; and (b) any violation or alleged violation of this Agreement by you.
7.1. Term. This Agreement shall commence on the date you accept the terms and conditions of this Agreement and, unless sooner terminated pursuant to the terms hereof, shall continue in full force and effect during such time that you continue to use the Materials or access or use the Stealthmail services. Stealthmail may terminate this Agreement immediately at any time by notice to you or by terminating or disabling your access to the Stealthmail services and/or Materials, including by deleting your account or blocking your IP address.
7.2. Effect of Termination. Upon the expiration or termination of this Agreement, the rights granted to you hereunder shall terminate, you shall cease all use of the Materials and access or use of the Stealthmail services and you shall destroy the Materials in your possession. Sections 1.3, 1.4, 1.5, 2, 3, 4, 5, 6, 7.2, 8, 9, and 10 shall survive the expiration or termination of this Agreement. Termination of this Agreement by either party shall not act as a waiver of any breach of this Agreement and shall not act as a release of either party from any liability for breach of such party's obligations under this Agreement. Neither party shall be liable to the other for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party shall be without prejudice to any other right or remedy of such party under this Agreement or applicable law.
This Agreement and all matters arising out or relating thereto will be governed by the laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. All disputes arising out of or related to this Agreement, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory, will be resolved through final and binding arbitration before a neutral arbitrator instead of in a court by a judge or jury and you agree that Company and you are each waiving the right to trial by a jury. However, as set forth below, the preceding arbitration requirement shall not apply to disputes to the extent relating to the interpretation or application of the class action waiver below, including its enforceability, revocability or validity.
YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. Notwithstanding anything to the contrary in this Section or any other provision of this Agreement or in the American Arbitration Association's Consumer Arbitration Rules, disputes regarding the enforceability, revocability or validity of the foregoing class action waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action, and (2) there is a final judicial determination that all or part of such class action waiver is unenforceable, then the class, collective, and/or representative action, to that extent, must be litigated in a civil court of competent jurisdiction, but the portion of such class action waiver that is enforceable shall be enforced in arbitration.
The arbitration will be administered by the American Arbitration Association under its Consumer Arbitration Rules, as amended by this Agreement. The Consumer Arbitration Rules are available online at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by the American Arbitration Association or by the arbitrator. The arbitrator's decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. Notwithstanding this, Stealthmail will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in this Agreement will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against Stealthmail for you.
This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all prior or contemporaneous agreements between the parties relating to the subject matter hereof (but excludes any other service which Stealthmail may provide to you under a separate written agreement). Stealthmail may provide you with notices, including those regarding changes to this Agreement, by email, regular mail or postings in the Stealthmail services or Stealthmail's website. You may not assign, sublicense or otherwise transfer any right or obligation set forth in this Agreement without Stealthmail's prior written consent. Any purported assignment in violation of the preceding will be void and of no effect. Subject to the foregoing, this Agreement will be binding upon the parties' respective successors and permitted assigns. If a provision of this Agreement is held to be invalid or unenforceable, the remaining portions hereof will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties. No failure or delay by a party in exercising any right, power or remedy will operate as a waiver of such right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving party. If either party waives any right, power or remedy, such waiver will not waive any successive or other right, power or remedy the party may have under this Agreement.
For purposes of this Agreement, the following terms shall have the following meanings:
10.1. "User Content" means the information and content you create or distribute using Stealthmail services.
10.2. "Derivative" means a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work or that uses trade secrets or other proprietary information with respect to such preexisting work.
10.3. "Materials" means (a) Stealthmail software (including any object code, executable files, applications, add-ins or plug-ins) and related materials, (b) documentation therefor, and (c) any modifications, error corrections, bug fixes, new releases or other updates thereto, in each case as made available to you under this Agreement by Stealthmail in connection with the Stealthmail services.
10.5. "Third Party Services" means any services or materials used in connection with the Stealthmail services or Materials that are hosted by a party other than Stealthmail or you.
10.6. "Stealthmail Application Data" means data related to your interaction (or consequence thereof) with the Stealthmail services or the Materials that is used to operate, improve or maintain the Stealthmail services, including, without limitation, key access policies (including updates or revisions to those policies), authorized user email addresses, IP addresses, access requests, error reports, crash reports, platform information, sender email addresses, recipient email addresses, encryption keys, message expiration dates and times, and display names for files and email subject lines.
10.7. "Stealthmail services" means the Stealthmail hosted service made available by Stealthmail to you in connection with the Materials.