Last updated on July 5, 2018
Dr.Mailer (“Dr.Mailer”, "we" and "us", as the case may be), a company organized under the laws of the State of Israel, company number:046112819 with offices at Shalom Aleichem 13, Netanya, Israel, provides businesses and organizations with a variety of tools and resources to create, launch, and manage online email campaigns or other services, including short message services (SMS) and landing pages (the "Services"). Dr.Mailer’s Services may not be used for the sending of unsolicited email (sometimes called "spam"). See our Anti-Spam Policy, which is incorporated into these Terms and Conditions of Use by reference. The following are the terms and conditions of Use for access to this web site and use of the Services. By clicking the ‘I accept’ button on the sign-up page, by logging in to your Dr.Mailer account or by accessing the Dr.Mailer services via any API interface, you ("you", “Company”, as the case may be) accept these terms and conditions of Use.
Dr.Mailer provides users with access to Internet based services, such as security & quality for email campaigns by providing a collection of resources now known or hereafter developed , including but not limited to the World Wide Web, and/or other Internet or telecommunications services or protocols. You also understand and agree that the Service may include certain communications from Dr.Mailer, such as service announcements, administrative messages, and that these communications are considered part of Dr.Mailer membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new Dr.Mailer properties, shall be subject to the TOS. You understand and agree that the Service is provided "AS-IS" and that Dr.Mailer assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Service, and that access may involve third-party fees (such as Internet service provider or airtime charges). In addition, you must provide and are responsible for all equipment necessary to access the Service.
Unless expressly stated otherwise, no information presented in the Service or in connection with any products and services forming part of the Service shall be deemed as a binding offer by us or the relevant third party, but may constitute an invitation for you to place an order.
Please be aware that Dr.Mailer has created certain areas on the Service that are restricted from general viewing and you must fulfill the specified conditions to access and view such areas.
The Services are provided on a non-exclusive basis, solely for the commercial purposes of the Company
In consideration of your use of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of any applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Dr.Mailer has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Dr.Mailer has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). Dr.Mailer is concerned about the safety and privacy of all its users, particularly children. Accordingly, if you are a parent or legal guardian, it is your responsibility to determine whether any of the Services and/or Content are appropriate for your child. Similarly, if you are a child, please consult with your parent or legal guardian as to whether any of the Services and/or Content is appropriate for you.
In the course of the Services, you may provide Dr.Mailer with certain materials. If you receive verification services from Dr.Mailer, you shall provide Dr.Mailer with applicable email-lists and email creatives. You represent that you are permitted to provide Dr.Mailer with such materials in order for Dr.Mailer to provide the Services, and that the provision of such materials to Dr.Mailer or the receipt of the Services shall not breach any agreement between you and a third party. Dr.Mailer shall have no responsibility or liability in the event you provide Dr.Mailer with incorrect creative or email-list. Dr.Mailer may provide functionality that allows you to make information (or Internet sites providing information) from the Services available to third parties. You shall not distribute such information in breach of applicable law or in violation of its agreements with third parties.
You shall make payment in respect of the Services according to the applicable pricing plan selected by you (“Fees”). Fees are exclusive of applicable VAT, applicable taxes and other government charges. You shall make payment to Dr.Mailer without deduction for and free and clear of any such amounts, except as required by law. If you are required by law to withhold or deduct any amounts, you shall make payment of any withheld or deducted amounts to the applicable government authority, and make payment to Dr.Mailer of such additional amounts as are necessary to provide Dr.Mailer with all amounts due hereunder as if no deduction or withholding was made. Late payments shall bear interest at the rate of 18% per annum. Pricing information to you is the confidential information of Dr.Mailer.
You will receive a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Dr.Mailer of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Dr.Mailer cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 5.
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not Dr.Mailer, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via the Service. Dr.Mailer does not control the Content posted via the Service and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Service, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will Dr.Mailer or our licensors, suppliers, vendors, parent, holding, subsidiary or related companies, affiliates, officers, agents or employees, as the case may be, be liable in any way for any Content, including, but not limited to, any exposure to offensive, indecent or objectionable Content, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
You agree to not use the Service to:
(a) upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, subversive, hateful, or racially, ethnically or otherwise objectionable or contrary to public interest, public order or national harmony in all relevant jurisdictions;
(b) harm minors in any way;
(c) impersonate any person or entity, including, but not limited to, a Dr.Mailer official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(e) upload, post, email, transmit or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
(f) upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(g) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas (such as shopping) that are designated for such purpose;
(h) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(i) disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
(j) interfere with or disrupt the Service or another person's use of the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(k) intentionally or unintentionally violate any applicable law, statute, ordinance, regulation, rule or code, including, but not limited to, any regulations, rules, notices, instructions or directives of any regulatory body or authority, governmental agency or national or other securities exchange;
(l) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
(m) "stalk" or otherwise harass another;
(n) commit any fraudulent or unlawful act, whether in relation to any third party provider of products and services on the Service or otherwise and/or
(o) collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs a through n above.
(p) post or upload content to third party websites or servers. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, You shall inform Dr.Mailer in writing in each instance prior to engaging in the activities set forth above. You shall use the Services only in compliance with applicable law (including any laws concerning the export of data, software or information).
You acknowledge that Dr.Mailer shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Services; (b) modify any implementing code provided by Dr.Mailer, (c) provide, transfer or make available the Services (or any application interface made available by Dr.Mailer) to any third party or make the Services available to any third party, (d) bypass any security measure or access control mechanism of the Services, (e) resell or otherwise distribute for financial consideration any information provided by Dr.Mailer (f) engage in any activity that disrupts the Services (g) scrape any information or content made available by Dr.Mailer for use in another product or service.
You acknowledge that Dr.Mailer may or may not pre-screen Content, but that Dr.Mailer and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, move or remove any Content that is available via the Service, without being liable to you in any way for any loss or damage arising from such removal. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
You acknowledge, consent and agree that Dr.Mailer may in its sole discretion access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce the TOS; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Dr.Mailer, its users and the public.
You understand that the technical processing and transmission of the Service, including your Content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or
You understand that the Service and software embodied within the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Dr.Mailer and/or content providers who provide content to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
You agree you will not access or otherwise use third party mailing lists or otherwise prepare or distribute unsolicited email, in connection with the Product.
You agree to import, access or otherwise use only lists for which all listed parties have specifically consented in advance to receive correspondence from you ("Permission Based Lists") in connection with your use of the Product.
You acknowledge and agree that not all email messages sent through use of the Product will be received by their intended recipients.
When you register with Dr.Mailer, you acknowledge that in using the Services to send electronic communications (including but not limited to email and other Internet activities), you will be causing communications to be sent through Dr.Mailer's computer networks, portions of which are located in one jurisdiction, and other locations in other jurisdictions and portions of which are located in other jurisdictions. As a result, and also as a result of Dr.Mailer's network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate communications regardless of where you are physically located at the time of transmission. Accordingly, by agreeing to this Terms of Service, you acknowledge that use of the service results in interstate data transmissions.
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
You agree to indemnify and hold Dr.Mailer and its parent, holding, subsidiary, affiliated and related companies, officers, agents, employees, partners, suppliers, vendors, co-branders, licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Content you submit, post, transmit or otherwise make available through the Service, your use of the Service, your connection to the Service, your violation of the TOS, or your violation of any rights of another or your breach of any applicable law.
You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service.
Dr.Mailer reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Dr.Mailer shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
Dr.Mailer will use commercially reasonable efforts to make services available with minimal interruption.
On the conclusion of twelve (12) months period after the Effective Date (“Initial Term”), the Company shall have the right to terminate this agreement, without cause, by giving at least 30 days (the “Termination Notice Period”) written notice of termination to DrMailer. If the Company didn't send any written termination notice to DrMailer, it will be considered as if the Company approved to continue the agreement in another twelve (12) months period.
THERE ARE NO REFUNDS FOR ANY FEES PAID. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT AND DR.MAILER IS NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT AND ANY CREDIT CARD CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.
The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Dr.Mailer has no control over such sites and resources, you acknowledge and agree that Dr.Mailer is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Dr.Mailer shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
As between the parties, Dr.Mailer shall have all right, title and interest in the Services, and all software that provides the Services, including any implementing code or interfaces provided by Dr.Mailer. If Company provides Dr.Mailer with any feedback regarding the Services (or any implementing code or interface), Dr.Mailer may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
Dr.Mailer does not warrant that the Services shall be accurate in all instances. Use of the verification Services to identify certain content, reputation or other qualities of email advertisements could result in either “false positives” or “false negatives”. THE SERVICES ARE PROVIDED “AS-IS”, AND DR.MAILER EXPRESSLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES IN RESPECT OF THE SERVICES, INCLUDING WITHOUT LIMITATION ANY IMPLIED OR STATUTORY WARRANTIES IN RESPECT OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Dr.Mailer is not responsible for any actions that Company may take based on the Services..
IN NO EVENT SHALL DR.MAILER (OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR CONSULTANTS) HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE SERVICES OR THE ARRANGEMENTS CONTEMPLATED HEREIN. THE AGGREGATE LIABILITY OF DR.MAILER FOR THE PROVISION OF THE SERVICES OR FOR THE ARRANGEMENT CONTEMPLATED HEREIN SHALL NOT EXCEED PAYMENTS ACTUALLY RECEIVED BY DR.MAILER FROM COMPANY HEREUNDER. ALL CLAIMS SHALL BE MADE AGAINST DR.MAILER DIRECTLY, AND THE DIRECTORS, OFFICERS, EMPLOYEES AND CONSULTANTS OF DR.MAILER SHALL HAVE NO LIABILITY FOR ANY CLAIMS UNDER THIS AGREEMENT OR IN RESPECT OF ANY SERVICES. DR.MAILER HAS NO RESPONSIBILITY FOR ANY INFORMATION OR CONTENT YOU MAY ACCESS THROUGH USE OF THE SERVICES, AND HAS NO RESPONSIBILITY FOR THE AVAILABILITY OR ACCESSIBILITY OF THIRD PARTY SITES AND SERVICES.
YOU ACKNOWLEDGE THAT THE DISCLAIMERS AND EXCLUSIONS OF LIABILITY SET FORTH IN SECTIONS 16 AND 17 REPRESENT A FAIR AND REASONABLE ALLOCATION OF THE RISKS AND BENEFITS OF THE AGREEMENT BETWEEN YOU AND US, TAKING ALL RELEVANT FACTORS INTO CONSIDERATION, INCLUDING WITHOUT LIMITATION THE VALUE OF THE CONSIDERATION PROVIDED BY YOU TO US AND THE AVAILABILITY AND COSTS OF INSURANCE WITH RESPECT TO THE SAID RISKS. YOU FURTHER AGREE THAT THESE DISCLAIMERS AND LIMITATIONS SHALL BE ENFORCEABLE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
The term of this Agreement shall commence on the Effective Date and shall continue for a period of one year (the “Initial Term”). As of the conclusion of the Initial Term, this Agreement shall automatically renew for successive subsequent periods of one year each (each, a “Renewal Term” and, together with the Initial Term, the “Term”). Company and Dr.Mailer may terminate this Agreement as set forth on Exhibit A. Dr.Mailer may terminate this Agreement with written notice if it has reason to believe that Company is in material breach of this Agreement, and such breach is not cured by Company within 30 days of its receipt of written notice thereof from Dr.Mailer. Upon any termination or expiration of this Agreement, (a) Dr.Mailer will cease providing the Services, (b) Company should cease all use of the Dr.Mailer API and (c) any outstanding balance for Services rendered through the date of termination will be immediately due and payable in full. Sections 3 – 13 of this Agreement shall survive any termination or expiration hereof.
Dr.Mailer may display Company’s name and logo in Dr.Mailer’s website and other marketing materials solely for the purpose of indicating that Company is a customer of Dr.Mailer.
This Agreement represents the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties, whether written or oral, regarding the subject matter hereof. This Agreement may not be modified or amended except in a writing executed by both parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party, provided that such consent shall not be required for the assignment by a Party of all of its rights and obligations hereunder to a purchaser of all or substantially all of such Party’s assets or share capital. The assignor shall provide prompt notice of such assignment to the non-assigning Party. Dr.Mailer may terminate this Agreement if Company or Company’s assets are purchased by a direct competitor of Dr.Mailer or this Agreement is assigned to a direct competitor of Dr.Mailer. Assignments not made in compliance with this Agreement shall be void. Dr.Mailer may provide the Services through affiliated companies, so long as the terms of this Agreement are respected. If any provision of this Agreement shall be invalid or unenforceable, such provision shall be interpreted as necessary to give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement which shall remain in full force and effect. The Parties are independent contractors, and nothing herein should be interpreted as providing for any partnership, agency or representative relationship. This Agreement will be governed by the laws of the State of Israel, without giving effect to its conflict of laws principles. The parties agree that the competent courts in the District of Tel Aviv will have exclusive jurisdiction over all matters or disputes between the Parties arising out of or in connection with this Agreement or the Undertaking.