Terms of Service
Effective: 1st August 2022
These Terms of Service apply as between you, the User of Services provided therein and Mailosaur Ltd, registered in England & Wales (#07999725) whose registered office is at The Square, Basing View, Basingstoke, Hampshire RG21 4EB, United Kingdom, the owner(s) of the Services and this Website. Your agreement to comply with and be bound by these Terms of Service and to grant any and all licences required under these Terms of Service is deemed to occur upon your acceptance of these Terms of Service prior to your first use of the Services.
1. Definitions and interpretation
- In these Terms of Service, unless the context otherwise requires, the following expressions have the following meanings:
- “Account” means collectively the personal information, payment information and credentials used by Users to access the Services through the Website;
- “Agreement” means this binding agreement that shall come into effect between the User and Mailosaur following the User’s acceptance of these Terms of Service and which shall incorporate these Terms of Service;
- “Content” means any text, graphics, images, audio, video, software, data compilations and any other form of information capable of being stored in a computer that appears on or forms part of the Website. For avoidance of doubt Content shall mean such content on the Website that belongs to Mailosaur as well as content that is submitted by Users in accordance with Clause 8 and Content shall refer to either as the context so admits;
- “Services” means collectively the online facilities, tools, services or information, all of Mailosaur’s online software, testing tools and platform, and all associated Mailosaur mobile and desktop applications that Mailosaur makes available through the Website either now or in the future;
- “Fees” means the sum of money paid by Users at regular intervals to keep their Account active and to enable them to access the Services;
- “Subscription Period” means the period for which a subscription has been purchased by way of payment of Fees;
- “User / Users” means any third party that accesses the Website and the Services whether or not a customer of Mailosaur and a party to the Agreement; and
- “Website” means the website on which these Terms of Service appear (mailosaur.com), any other Mailosaur websites and any sub-domains of such websites (as the case may be) accessed over any protocol, unless expressly excluded by these Terms of Service.
- Unless the context otherwise requires, each reference in these Terms of Service to:
- “writing”, and any cognate expression, includes a reference to any communication affected by electronic or facsimile transmission or similar means;
- a statute or a provisions of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
- a Clause or paragraph is a reference to a Clause of these Terms of Service.
- The headings and numbering used in these Terms of Service are for convenience only and shall have no effect upon the interpretation of these Terms of Service.
- Words imparting the singular number shall include the plural and vice versa.
- References to any gender shall include the other gender.
2. Provision of services
- Mailosaur shall use its commercially reasonable endeavours to provide the Services on an error-free basis and without interruption and with reasonable skill and care.
- Notwithstanding, Mailosaur does not provide any guarantee that provision of the Services shall be error-free or without interruption and reserves the right to alter or suspend provision of the Services without prior notice to Users. By accepting these Terms of Service the User acknowledges that the Services may change in form or nature at any time.
- Mailosaur shall have the right, exercisable at its sole discretion, to terminate provision of the Services without prior notice to Users.
- Notwithstanding Mailosaur’s right to perform any of the actions detailed in this Clause without prior notice, Mailosaur shall use its commercially reasonable endeavours to provide such notice whenever possible.
3. Access to services
- Mailosaur’s customer as the primary intended User shall wherever appropriate use all reasonable efforts to procure that all other Users who may be employees, agents or sub-contractors of such customer shall adhere to and not commit any act or default that would constitute a breach of any of these Terms of Service.
- The User represents and warrants that they are over the age of 16 years old as the Services provided by Mailosaur are not available to individuals under the age of 16 years old.
- The User represents and warrants that they have the authority to enter into the Agreement, to use the Services, and to perform any and all acts as may be necessary under these Terms of Service.
- If the User is unable to comply with the requirements of Clauses 3.1 or 3.2 they shall be prohibited from using the Services and must not accept these Terms of Service.
- In order to use the Services and to submit or create Content, Users are required to create an Account and to submit certain personal details. By accepting these Terms of Service the User represents and warrants that:
- any information that is submitted is accurate and truthful;
- all such information will be kept accurate and up-to-date; and
- the means by which they identify themselves does not violate any part of these Terms of Service or any applicable laws.
- If the User has reason to believe that their Account details have been obtained by another without consent, the User should contact Mailosaur immediately to suspend their Account and cancel any unauthorised orders or payments that may be pending. In the event that unauthorised use is made, prior to the User notifying Mailosaur of the unauthorised nature of the order or payment, Mailosaur will suspend access to the Services and the withdrawal of any scheduled payments pending investigation. Following investigation, Mailosaur will determine whether or not to cancel the User’s access to the Services and make a full or partial refund of the payment to the User.
- The terms of Clause 3.4 shall apply notwithstanding any related provisions in Clause 15.
- Fees commence on the date that the User exceeds their limit of free usage and makes their first payment (for example, by inputting their credit or debit card details.) The Subscription Period will commence on the date shown on the invoice (the User interface on the Website shall stipulate the term of the Subscription Period or it may be confirmed directly by Mailosaur on request). The User’s chosen payment method will be billed on activation and on the date of each subsequent renewal thereafter.
- The first payment will be at the price displayed by, or otherwise agreed with, Mailosaur.
- Increases in price will be reflected in the User’s subscription on the date of every subsequent renewal of the Subscription Period.
- Decreases in price will be reflected in the User’s subscription on the date of every subsequent renewal of the Subscription Period.
- Any User may upgrade their Account and level of Services at any time during any Subscription Period and revised Fees for such upgrade will be payable and shown in an invoice visible on the relevant User interface or made available on request to Mailosaur.
- If a User terminates their Account, access to the service will terminate immediately. No refunds will be available.
- If a User’s payment fails to clear or is declined for whatever reason then access to the service may be immediately suspended. The service will re-commence once a payment is successfully completed.
5. Use of Services
- Users are permitted to use the Services only in accordance with:
- these Terms of Service; and
- any relevant law, regulation or other applicable instrument in their particular jurisdiction.
- Subject to any express agreement to the contrary, Users may only access the Services through the normal means provided by Mailosaur. Users shall not attempt to download, convert, crawl or otherwise reverse-engineer any part of the Services.
- The restrictions set out in Clause 5.2 shall not apply to Content submitted or created by a particular User where that User is downloading their Content, using the service as intended.
- Users may not engage in any conduct that may disrupt provision of the Services by Mailosaur.
- Subject to any express agreement to the contrary, Users may not reproduce, copy, duplicate, trade or resell the Services.
- Users’ rights to use the Services are non-exclusive, non-transferable and fully revocable at Mailosaur’s discretion.
6. Intellectual property
- Subject to the exceptions in Clause 7 of these Terms of Service, all Content included on the Website, unless submitted or created by Users, including, but not limited to, text, graphics, logos, icons, images, sound clips, video clips, data compilations, page layout, underlying code and software is the property of Mailosaur, our affiliates or other relevant third parties. By accepting these Terms of Service the User acknowledges that such material is protected by applicable United Kingdom and International intellectual property and other laws.
- Subject to Clause 8 Users may not reproduce, copy, distribute, store or in any other fashion re-use material from the Website unless otherwise indicated on the Website or unless given express written permission to do so by Mailosaur.
7. Third-party intellectual property
Where expressly indicated, certain Content, such as advertising material, and the Intellectual Property Rights subsisting therein belongs to other parties. This Content, unless expressly stated to be so, is not covered by any permission granted by Clause 6 of these Terms of Service to use Content from the Web Site. The exceptions in Clause 8 continue to apply. Any such Content will be accompanied by a notice providing the contact details of the owner and any separate use policy that may be relevant.
8. User content & intellectual property
- When using the Services to create Content, Users should do so in accordance with the following rules:
- Users must not submit Content that is unlawful or objectionable. This includes, but is not limited to, Content that is abusive, threatening, harassing, discriminatory, defamatory or fraudulent or infringes or is likely to infringe the intellectual property rights of any third parties;
- Users must not submit Content that is intended to promote or incite violence;
- Users must not submit Content that may contain viruses or any other software or instructions that may damage or disrupt other software, computer hardware or communications networks;
- Users must not impersonate other people, particularly employees and representatives of Mailosaur or our affiliates;
- Users must not use the Services for unauthorised mass-communication such as “spam” or “junk mail”.
- Mailosaur has the right, but not the obligation to pre or post-screen Content submitted or created by Users and may flag or filter any Content that it deems appropriate.
- If any Content is found to be in breach of these Terms of Service, Mailosaur reserves the right to remove it without notice and may, at its sole discretion, terminate the responsible User’s access to the Services.
- Users are solely responsible for any and all Content that they submit or create. Mailosaur does not endorse, support, represent or otherwise guarantee the accuracy or reliability of such Content. Subject to this sub-Clause 8.4, Users use the Services at their own risk.
- Users shall defend, indemnify and hold harmless Mailosaur against all claims, actions, proceedings, losses damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the User’s use of the Services or its provision of Content or otherwise in the event that any Content is in breach of this Clause 8, provided that (a) the User is given prompt notice of any such claim; (b) Mailosaur provided reasonable cooperation to the User in the defence and settlement of such a claim, at the User’s expense; and (c) the User is given the sole authority to defend or settle the claim.
- By submitting or creating Content Users warrant and represent that they are the author of such Content and / or that they have acquired all of the appropriate rights and / or permissions to use the Content in this fashion. Mailosaur accepts no responsibility or liability for any infringement of third-party rights by such Content. Further, Users waive all moral rights in any and all Content that they submit or create to be named as its author. Mailosaur accepts no responsibility or liability for any infringement of third-party rights by such Content.
- By accepting these Terms of Service, the User grants a non-exclusive, worldwide, royalty-free, perpetual licence under the User’s intellectual property rights to Mailosaur to copy, distribute, transmit, publicly display, publicly perform, transmit and reformat all Content for the purpose of providing the Services.
- The User represents and warrants that they have all necessary rights, power and authority to grant the licence described in Clause 8.7.
9. Links to other websites
This Website may provide links to other websites as part of the Services. Unless expressly stated, such websites are not under the control of Mailosaur or that of our affiliates. Mailosaur assumes no responsibility for the content of the websites and disclaims liability for any and all forms of loss or damage arising out of the use of them. The inclusion of a link to another website on this Website does not imply any endorsement of that website or of those in control of it.
10. Privacy and Confidentiality
Each party shall treat as confidential any information it obtains in the course of the provision of the Services if such information would be regarded as confidential by a reasonable business person if it relates to the business, affairs, assets, technology, know-how, software, operations and customers of the disclosing party.
11. Disclaimer of warranties
- Mailosaur makes no warranty or representation that the Website or the Services will meet Users’ requirements, that they will be of satisfactory quality, that they will be fit for a particular purpose, that they will not infringe the rights of third parties, that they will be compatible with all systems, or that they will be secure.
- Mailosaur shall use its commercially reasonable endeavours to ensure that all information provided on the Website and the Services is accurate and up to date, however Mailosaur makes no warranty or representation that this will always be the case. Mailosaur makes no guarantee of any specific results from the use of the Website or the Services.
- No part of the Website or the Services is intended to constitute advice and the Content of the Website and the Services should not be relied upon when making any decisions or taking any action of any kind and the User assumes sole responsibility for the outcomes it obtains from its use of the Services.
- Whilst every effort has been made to ensure that all descriptions of Services available from Mailosaur correspond to the actual services available, Mailosaur is not responsible and shall not be liable with respect to any minor or non-material divergencies from these descriptions or for any misunderstandings or incorrect assumptions concerning the Services that may have been made by the User (save unless the same have been notified to Mailosaur and resolved).
12. Availability of the Website and the Services
- The Website and the Services are provided “as is” and on an “as available” basis. Mailosaur gives no warranty that the Website or the Services will be uninterrupted and free of defects and / or faults inclusive of viruses and other disruptive software. To the maximum extent permitted by law Mailosaur provides no warranties (express or implied) of fitness for a particular purpose, accuracy of information, compatibility and satisfactory quality.
- Mailosaur accepts no liability for any disruption or non-availability of the Website or the Services resulting from external causes including, but not limited to, ISP equipment failure, host equipment failure, communications network failure, power failure, natural events, acts of war, acts of God or legal restrictions and censorship.
13. Limitation of liability
- Mailosaur’s liability for any direct or indirect loss or damage, foreseeable or otherwise, including any indirect, consequential, special or exemplary damages arising out of our breach of these Terms of Service shall be limited to the value of the applicable Fees for such Subscription Period in which the breach arises. For all other direct or indirect loss or damage, foreseeable or otherwise, including any indirect, consequential, special or exemplary damages arising from the use of the Website, the Services or any information contained therein, to the maximum extent permitted by law, Mailosaur accepts no liability. Users should be aware that they use the Website, the Services and all relevant Content at their own risk.
- Nothing in these Terms of Service excludes or restricts Mailosaur’s liability for death or personal injury resulting from any negligence or fraud on the part of Mailosaur.
14. Term and termination
- The term of the Agreement shall commence upon the User’s acceptance of these Terms of Service and shall continue until terminated either by the User or by Mailosaur in accordance with this Clause 14.
- If a User wishes to terminate the Agreement they may do so by closing their Account which shall then terminate at the end of the current Subscription Period.
- Mailosaur reserves the right to terminate the Agreement, a User’s Account and a User’s access to the Services at any time for the following reasons:
- The User has committed a material breach of these Terms of Service;
- The User has indicated, expressly or impliedly or by its conduct, that it does not intend to or is unable to comply with these Terms of Service;
- Mailosaur is required to do so by law;
- The User has become, in the opinion of Mailosaur, its affiliates or advisers, no longer commercially viable to continue providing the Services;
- The User becomes, or is in the opinion of Mailosaur, its affiliates or advisers, likely to become insolvent;
- Mailosaur is no longer providing the Services in the User’s country of residence;
- If Mailosaur terminates a User’s Account as a result of the User’s breach of these Terms of Service the User will not be entitled to any refund.
- If Mailosaur terminates a User’s Account or subscription for any other reason, the User will not be refunded any remaining balance of their Fees.
- In the event that Mailosaur terminates a User’s Account or subscription, the User will cease to have access to the Services from the date of termination.
- If the User terminates their Account or subscription, they will continue to have access to the Services for the remainder of the prevailing Subscription Period, termination becoming effective at the end of that Subscription Period.
- In the event that the Agreement is terminated, the User’s Account will be closed and their access to the Services suspended in accordance with Clauses 14.6 and 14.7. Any Content that the User has submitted or created will become inaccessible to all Users from the date on which the Services become inaccessible, however copies may be retained by Mailosaur as part of standard backup procedures.
- Upon termination of the Agreement, the User shall cease to be bound by all obligations set out in these Terms of Service with the exception of those expressly stated to survive the termination of the Agreement.
15. No waiver
In the event that either the User or Mailosaur fails to exercise any right or remedy contained in these Terms of Service, this shall not be construed as a waiver of that right or remedy.
Users may not assign, transfer, novate, charge, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of Mailosaur, such consent not to be unreasonably withheld.
Whilst every effort has been made to ensure that these Terms of Service adhere strictly with the relevant provisions of the Unfair Contract Terms Act 1977, in the event that any of these terms are found to be unlawful, invalid or otherwise unenforceable, that term is to be deemed severed from these Terms of Service and shall not affect the validity and enforceability of the remaining Terms of Service. This term shall apply only within jurisdictions where a particular term is illegal.
18. Entire agreement
These Terms of Service embody and set forth the entire Agreement and understanding between the Parties and supersede all prior oral or written agreements, understandings or arrangements relating to the subject matter of the Agreement. Neither the User nor Mailosaur shall be entitled to rely on any agreement, understanding or arrangement not expressly set forth in these Terms of Service (save for any representation made fraudulently) and each party agrees that it will have no claim for innocent or negligent misrepresentation based on anything contained within these Terms of Service.
No variation of these Terms of Service shall be effective unless it is set out in a contractually binding document signed by the authorised representatives of the parties.
20. No partnership or agency
Nothing in these Terms of Service or in the Agreement is intended to or shall operate to create a partnership or joint venture between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name of, or on behalf of, or otherwise to bind the other in any way.
21. Third party rights
These Terms of Service and the Agreement does not confer any rights on any person or party other than Mailosaur or the User pursuant to the Contracts (Rights of Third Parties) Act 1999.
Without prejudice to Clause 10.2, Mailosaur may publicise its connection with any customer User in any reasonable way including but not limited to the publication of such User’s name and logo which Mailosaur may show on the Website or in other digital or print media. For this purpose, User hereby gives to Mailosaur a non-exclusive, perpetual, worldwide, royalty-free, but freely revocable licence under the User’s intellectual property rights. On request by Mailosaur, the User will take all reasonable steps and execute all reasonable instruments to confirm such licence. In the event that the User intends to revoke such licence, it shall confirm such revocation to Mailosaur in writing.
All notices / communications shall be sent to and by Mailosaur by email to firstname.lastname@example.org such notice will be deemed received on the day of sending if the email is received in full on a business day and on the next business day if the email is sent on a weekend or public holiday.
24. Law and jurisdiction
- These Terms of Service, the Agreement and all other aspects of the relationship between the User and Mailosaur shall be governed by and construed in accordance with the Laws of England and Wales.
- Any dispute between the User and Mailosaur relating to these Terms of Service, the Agreement and all other aspects of the relationship shall fall within the exclusive jurisdiction of the courts of England and Wales.