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FEEDGEE WEB SITE AND PRODUCTS TERMS AND CONDITIONS OF USE

PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY. THESE TERMS AND CONDITIONS MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE. BY USING THIS WEB SITE, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, THEN DO NOT USE THIS WEB SITE.

FEEDGEE ("FEEDGEE") provides small and medium sized businesses and organizations with a variety of tools and resources to collect visitor email addresses and to create, launch, and manage online email campaigns (the "Email Marketing Product"). The Email Marketing Product, and any related offerings are referred to in these Terms and Conditions of Use as the Products). FEEDGEE’s Products may not be used for the sending of unsolicited email ( sometimes called "spam"). See our Anti-Spam Policy.

The following are the terms and conditions for access to this web site and use of the Products. By clicking the ‘I accept’ button on the sign-up page or by logging in to FEEDGEE, you accept these terms and conditions.

 1. Copyright Information

Copyright © 2007-2008 FEEDGEE. All rights reserved.

2. Acknowledgements

Subject in each case to the terms listed in the remainder of this Agreement, you hereby acknowledge and agree that:

    * The Products may not be used for the sending of unsolicited email (sometimes called "spam").
    * The Products may only be used for lawful purposes.
    * You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Products.
    * You agree to import, access or otherwise use only lists for which all listed parties have consented to receive correspondence from you ("Permission Based Lists") in connection with your use of the Products. Mere agreement of a person or entity to participate in a survey is not consent to receive correspondence from you. For respondents to your surveys, consent to receive other correspondence is evidenced by the respondent opting into the "Join My Mailing List" link in the course of responding to your survey. You hereby covenant that you shall not use any other lists in connection with your use of the Products. You acknowledge and agree that not all messages sent through use of the Products will be received by their intended recipients.
    * Every email message sent by you in connection with the Products must contain the FEEDGEE "unsubscribe" link that allows the recipient to remove themselves from your mailing list.
    * You will comply with the restrictions on content of e-mail messages and activities using the Products as set forth in this Agreement.
    * You will adopt and maintain the Privacy Policy, which may be modified by FEEDGEE from time to time. 

3. Products and Support

The Products are provided subject to these Terms and Conditions of Use, as they may be amended by FEEDGEE, and any guidelines, rules or operating policies that FEEDGEE may establish and post from time to time (collective, the "Agreement"), including without limitation FEEDGEE's customer Privacy Policy, as linked from all email generated from FEEDGEE or otherwise furnished to you (the "Policy") (unless otherwise stated, all references to the Agreement shall include the Policy). By posting updated versions of the Agreement on the FEEDGEE.com website, or otherwise providing notice to you, FEEDGEE may modify the terms of the Agreement and may discontinue or revise any or all other aspects of the Products in its sole discretion. Except as otherwise provided in the Agreement, all such changes shall become effective upon the posting of the revised Agreement on the Product or at FEEDGEE's website. The Products are available only to persons who can form legally binding contracts under applicable law. Without limiting the foregoing, the Products are not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Products. If you are using the Products in your capacity as an employee, you must have the ability to bind your employer by your use of the Product. You must complete the registration form on the FEEDGEE sign up web page in order to use the Products. You will need to register for the Email Marketing Product. You shall provide true, accurate, current, and complete information about yourself as requested in the registration form. You may from time to time provide FEEDGEE's service personnel with remote access to your computers and other systems for the purpose of troubleshooting issues that arise in your use of the Products. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by FEEDGEE or its personnel.

4. Fees and Payment

 Beta version usage is free of charge. About changes in Fees and Payment schedule for new releases of Product will be notified on FEEDGEE web-site.

5. Email, Permission Practices, Image Hosting & Prohibited Content

5.1 Subscriber Opt Out. Every email message sent in connection with the Products must contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list and a link to the then current Privacy Policy. Each such link must remain operational for a period of thirty (30) days after the date on which you send the message, and must be in form and substance satisfactory to FEEDGEE. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within 10 days of submission, and update the email addresses to which messages are sent through your FEEDGEE account.

5.2 Permission Practices. You agree to import, access or otherwise use only Permission Based Lists in connection with your use of the Products. You hereby covenant that you shall not use any other lists in connection with your use of the Products. Without limiting the foregoing, you agree that you shall not utilize the Product to send any commercial electronic mail message (as that term is defined in the CAN-SPAM Act of 2003) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting. You cannot mail to distribution lists, newsgroups, or spam or unsolicited email addresses. You cannot copy a FEEDGEE template or any other features or functionality from the Products and use them for any purpose other than sending email messages from the Products. Emails that you send through the Product may generate spam complaints from recipients. As a matter of privacy, FEEDGEE cannot share with you the email addresses of those who complain about your email campaign. You are responsible for ensuring that your email campaigns do not generate a number of spam complaints in excess of industry norms. FEEDGEE, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. FEEDGEE will terminate your use of its Products if FEEDGEE determines that your level of spam complaints is higher than industry norms.

5.3 Headers & Footers. For every email message sent in connection with the Products, you acknowledge and agree that FEEDGEE may add an identifying header & footer stating "Powered by FEEDGEE" or any similar message or for free users accounts advertisement content can be added.

5.4 Use of Images Hosted by FEEDGEE. Images hosted by FEEDGEE on FEEDGEE controlled servers may only be used in connection with the Products and for no other purpose whatsoever.

5.5 Prohibited Content. FEEDGEE prohibits the use of the Products or web site by any person or entity that:

    * Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
    * Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
    * Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, odds making and betting/gambling services.
    * Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
    * Posts or discloses any personally identifying information or private information about children without their consent (or their parents consent in the case of a minor).
    * Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
    * Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
    * Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.
    * Engages in any libelous, defamatory, scandalous, threatening, harassing activity.
    * Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
    * Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner. 

5.6 Right to Disable Access. FEEDGEE, at its own discretion, may immediately disable your access to the Products without refund if FEEDGEE believes in its sole discretion that you have violated any of the policies listed above or elsewhere in this Agreement.

6. Restrictions and Responsibilities

6.1 No Rights in Software. This is an Agreement for services and access to this web site, and you are not granted a license to any software by this Agreement. You will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through the Products or any software, documentation, or data related to the Products ("Software"); remove any proprietary notices or labels from the Products or any Software, modify, translate, or create derivative works based on the Products or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Products or any Software.

Unless you are an authorized reseller of the Products, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Products or the Software, or any content, including but not limited to newsletters, distributed to you by FEEDGEE in connection with the Products. Violation of these restrictions may result in the termination of this Agreement.

6.2 Permitted Use of the Products. The Products shall be used for your internal business (which includes civic or charitable) purposes only, and you shall not use the Products or any Software for timesharing or service-bureau purposes or otherwise for the benefit of a third party. If you are using the Products in any jurisdiction which restricts the ability of a software provider to restrict your right to reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Software or Products, then you hereby covenant that, prior to engaging in such activities, you will first request that FEEDGEE perform such work at its standard professional services rates. FEEDGEE can then decide either: (i) to perform the work in order to achieve such interoperability and charge its then standard rates for such work to you; or (ii) to permit you to reverse engineer parts of the Software in order to obtain such source code, but only to the extent necessary to achieve such interoperability or (iii) provide you with the information that you need regarding the Software for the purpose for which applicable law permits you to engage in such activities despite a contractual prohibition on such activities.

6.3 Compliance with Laws; Monitoring. You shall use the Products only in compliance with this Agreement, the national directive for rules of tecommunication services and all other applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation and child protective email address registry laws). Although FEEDGEE has no obligation to monitor the content provided by you or your use of the Products, FEEDGEE may do so and may block any e-mail messages, remove any such content or prohibit any use of the Products that FEEDGEE believes may be (or is alleged to be) in violation of the foregoing.

6.4 Indemnification. You hereby agree to defend, indemnify and hold harmless FEEDGEE and its business partners, third-party suppliers and providers, licensors, officers, directors, employees, distributors and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys' fees) in connection with any claim or action that (i) arises from any alleged breach of this Agreement, (ii) arises from the content or effects of any messages you distribute using the Products or (iii) otherwise arises from or relates to your use of the Products. In addition, you acknowledge and agree that FEEDGEE has the right to seek damages when you use the Products for unlawful purposes, in an unlawful manner, and/or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.

6.5 Your Information. In using the varied features of the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to FEEDGEE. FEEDGEE may use this information and any technical information about your use of the Products to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Products as a result of solicitation by a marketing partner of FEEDGEE, FEEDGEE may share your information with the marketing partner and the marketing partner may share related information with FEEDGEE. FEEDGEE will not provide your contact information to companies you have not authorized for that purpose unless required by law or unless you are terminated from FEEDGEE due to unsolicited commercial email being sent from your FEEDGEE account. FEEDGEE will never sell or rent your contact lists to anyone without your permission. In the event FEEDGEE amends or revises the policy described in the immediately preceding sentence, it will provide advance notice of such amendment or revision.

6.6 Intellectual Property Rights in Your Content. You agree that you will not upload or transmit any contact lists, communications or content of any type to this web site or in connection with the Products that infringe, misappropriate or violate any rights of any party. By submitting ideas, concepts, inventions, or content to this web site or using them in connection with the Products, you agree that such submission is non-confidential for all purposes. If you make any such submission, you agree that you will not send or transmit to FEEDGEE or to any third party using the Products, any communication or content that infringes or violates any rights of any party. If you submit any business information, ideas, concepts or inventions or content to FEEDGEE by email, you agree such submission is non-confidential for all purposes. If you make any submission to this web site or if you submit any business information, idea, concept or invention to FEEDGEE by email, you automatically grant—or warrant that the owner of such content or intellectual property has expressly granted—FEEDGEE a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such content in any manner.

7. Termination

You may terminate this Agreement at any time by calling FEEDGEE Customer Support. There are no refunds for any fees paid.

FEEDGEE may terminate this Agreement or the Products, disable your account or put your account on inactive status, in each case at any time with or without cause, and with or without notice. FEEDGEE shall have no liability to you or any third party because of such termination or action.

FEEDGEE may delete any of your archived data within 30 days after the date of termination. After termination, you shall process all unsubscribe requests within 30 days of your last email campaign. FEEDGEE will provide upon request the list of unsubscribe requests from your last campaign. All sections of this Agreement that by their nature should survive termination will survive termination, including, without limitation, ownership, warranty disclaimers and limitations of liability.

If your account is classified (at FEEDGEE's sole discretion) as inactive for over 120 days, FEEDGEE has the right to permanently delete your subscriber data. FEEDGEE will use good faith efforts to contact you via email prior to taking any permanent removal actions.

8. Warranty Disclaimer; Remedies

USE OF THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. FEEDGEE DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS. THE PRODUCTS ARE PROVIDED "AS IS" AND FEEDGEE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

Your sole and exclusive remedy for any failure or nonperformance of the Products shall be for FEEDGEE to use commercially reasonable efforts to adjust or repair the Products.

9. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL FEEDGEE OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, INFORMATION PROVIDERS, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "FEEDGEE") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF FEEDGEE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. FEEDGEE IS NOT LIABLE FOR ANY DAMAGES FROM ANY CAUSE WHATSOEVER BY USING FEEDGEE PRODUCTS. YOU USE IT ‘AS IS’ ON YOUR OWN RISK.

 

IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, FEEDGEE IS FOUND LIABLE TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF FEEDGEE TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCTS IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY FEEDGEE TO YOU IN THAT TWELVE (12) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.

10. Restricted Persons; Export of Products or Technical Data

You hereby warrant that you are not a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify FEEDGEE within twenty-four (24) hours, and FEEDGEE shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you, but without prejudice to your outstanding obligations to FEEDGEE.

You agree that you shall not utilize the Products to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the Ukrainian Government. You may not remove or export from the Ukraine or allow the export or re-export of the Products, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the Ukraine or any other applicable country.

11. Links to Third-Party Web Sites

This web site may contain links to non-FEEDGEE web sites. These links are provided to you as a convenience, and FEEDGEE is not responsible for the content of any linked web site. Any non-FEEDGEE web site accessed from this web site is independent from FEEDGEE, and FEEDGEE has no control over the content of that web site. In addition, a link to any non-FEEDGEE web site does not imply that FEEDGEE endorses or accepts any responsibility for the content or use of such web site.

12. No Implied Endorsements

In no event shall any reference to any third party or third party product or service be construed as an approval or endorsement by FEEDGEE of that third party or of any product or service provided by a third party.

13. Notice and Take Down Procedures; Copyright Agent

If you believe any materials accessible on or from this web site infringe your copyright, you may request removal of those materials (or access thereto) from this web site by contacting FEEDGEE’s copyright agent (identified below) and providing the following information:

   1. Identification of the copyrighted work that you believe to be infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
   2. Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.
   3. Your name, address, telephone number and (if available) e-mail address.
   4. A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.
   5. A statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner’s behalf.
   6. A signature or the electronic equivalent from the copyright holder or authorized representative. 

FEEDGEE’s agent for copyright issues relating to this web site is as follows:

Compliance Manager
FEEDGEE.
Email: compliance@feedgee.com

In an effort to protect the rights of copyright owners, FEEDGEE maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of this web site who are repeat infringers.

14. Open Positions on Career Pages

FEEDGEE may list open employment positions on this web site. Any such postings are for informational purposes only and are subject to change without notice. You should not construe any information on this web site or made available through this web site as an offer for employment. Nor should you construe anything on this web site as a promotion or solicitation for employment not authorized by the laws and regulations of your locale.

15. Username and Password

You are responsible for maintaining the security of your account, passwords, and files. FEEDGEE will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password on-line, by e-mail or by phone. FEEDGEE has no knowledge of your organizational structure, if you are registering for the Products as an entity, or your personal relationships, if you are a person. FEEDGEE shall not be responsible for the actions of any individuals who misuse or misappropriate your contact lists or other assets using your username and password.

16. Miscellaneous

16.1 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

16.2 FEEDGEE and you agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity shall be considered a waiver of such right or remedy.

16.3 No agency, partnership, joint venture, or employment is created as a result of the Agreement, and you do not have any authority of any kind to bind FEEDGEE in any respect whatsoever.

16.4 In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys' fees.

16.5 The Agreement shall be governed by the laws of the Ukraine without regard to its choice or law or conflict of laws provisions. All legal actions in connection with the Agreement shall be brought in the courts located in Dnipropetrovsk, Ukraine.

Additional Information

If you have any questions about the rights and restrictions above, please contact FEEDGEE by email at info@feedgee.com.

Copyright ©2008, FEEDGEE. All Rights Reserved.

August 2008
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