MSGTAG End User License Agreement and Terms of Service

END USER LICENSE AGREEMENT

IMPORTANT - READ CAREFULLY
This license statement and limited warranty constitutes a legal agreement ("License Agreement") between you (either as an individual or a single entity) and Fisher Young Group Limited t/a MSGTAG ("MSGTAG") for MSGTAG ("the Software"), including any software, media, and accompanying on-line or printed documentation.

BY INSTALLING, COPYING, OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT.

Upon your acceptance of the terms and conditions of the License Agreement, MSGTAG grants you the right to use the Software in the manner provided below.

This Software is owned by MSGTAG or its suppliers and is protected by copyright law and international copyright treaty.  Therefore, you must treat this Software like any other copyrighted material (e.g., a book), except that you may either make one copy of the Software solely for backup or archival purposes or transfer the Software to a single hard disk provided you keep the original solely for backup or archival purposes. Notwithstanding the above, you are provided the right to copy and distribute the free version of the Software (specifically ‘MSGTAG Free’), on the basis that it is distributed in the exact same format as is provided on the official MSGTAG web site (www.msgtag.com) and without any modifications or additions.

You acknowledge that the Software in source code form remains a confidential trade secret of MSGTAG and/or its suppliers and therefore you agree not to modify the Software or attempt to reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

The Software relies on an Internet-based tagging service which resides on MSGTAG servers.  MSGTAG makes no warranty that the tagging service will be available.  MSGTAG may at any time change the protocol used to communicate between the Software and the tagging service which will render old versions of the Software obsolete. Additionally, MSGTAG may change any aspect of the MSGTAG servers including, but not limited to, price, volume and availability.

You agree that you will not use the Software to engage in the dissemination of bulk unsolicited e-mail. Should you wish to engage in such practices you must first delete from your system all MSGTAG software including executables, archives and configuration information.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MSGTAG AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.

LIMITATION OF LIABILITY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MSGTAG OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF MSGTAG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, MSGTAG'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS LICENSE AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE PRODUCT.

GENERAL PROVISIONS
This statement may only be modified in writing and signed by you and an authorised officer of MSGTAG.  If any provision of this statement is found void or unenforceable, the remainder will remain valid and enforceable according to its terms.  If any remedy provided is determined to have failed for its essential purpose, all limitations of liability and exclusions of damages set forth in this statement shall remain in effect.

This statement shall be construed, interpreted and governed by the laws of New Zealand.  This statement gives you specific legal rights; you may have others which vary from country to country.  MSGTAG reserves all rights not specifically granted in this statement.

TERMS OF SERVICE

Fisher Young Group Limited t/a MSGTAG™ ("MSGTAG") is providing to the subscriber a service that facilitates the tagging of email ("the Service") in conjunction with the MSGTAG software ("the Software"). By using the Service you are agreeing to the following terms and conditions.

1. The Service provided by MSGTAG may be used for lawful purposes only. Transmission or storage of any information, data or material in violation of any New Zealand law is prohibited. This includes, but is not limited to, copyrighted material, material which is or may be objectionable under the Films, Videos and Publications Classification Act 1993, or material protected by trade secret or other statute. The subscriber agrees to indemnify and hold harmless MSGTAG from any claims resulting from the use of the service, which damages the subscriber or any other parties.

2. The Service cannot be transferred or used by anyone other than the subscriber. 

3. MSGTAG has the right to suspend or cancel service to a subscriber at any time, and for any reason, without notice.

4. The Service shall not be used in conjunction with the sending of bulk unsolicited email. Any subscriber using the Service in this manner will be disallowed access to the Service. MSGTAG may, at its discretion, disallow access to such subscribers on an indefinite basis.

5. The subscriber may unsubscribe from the Service at any time. Once unsubscribed, the subscriber may not use the Service until such time as they re-subscribe.

6. MSGTAG exercises no control whatsoever over the content of the information transferred by the Service.

7. MSGTAG makes no warranty that any given email tagged by MSGTAG will trigger a read receipt as some mail clients, firewall and mail configurations may be incompatible with the MSGTAG technology.

8. MSGTAG makes no warranty that the tagging service will be available. MSGTAG may at any time change the protocol used to communicate between the Software and the tagging service which may render old versions of the Software obsolete. Additionally, MSGTAG may change any aspect of the MSGTAG servers.

9. MSGTAG makes no warranties of any kind, whether expressed or implied, for the service it is providing. MSGTAG also disclaims any warranty of merchantability or fitness for a particular purpose. MSGTAG will not be responsible for any damage suffered. This includes loss of data resulting from delays, non-deliveries, miss-deliveries, or service interruptions. Use of any information obtained via MSGTAG is at the subscriber's own risk. MSGTAG specifically denies any responsibility for the accuracy or quality of information obtained through the Service. 

10. Exclusion of Liability:

1. Any defect in the services or in its maintenance shall not entitle the Subscriber to immediate cancellation of this contract.

2. Without limiting the other terms of this contract, the Subscriber's sole remedy against MSGTAG shall be limited to breach of contract and MSGTAG's sole and total liability for any such claim shall be limited to, at the option of MSGTAG, either the re-supply of the services again or the amount of the any monthly levies for the month during which the breach allegedly occurred.

3. MSGTAG will not be liable to the Subscriber for any claim for breach of contract, breach of statute or breach of duty in tort (including negligence) or for any claim in equity or otherwise at law for any losses or damages whether general, exemplary, punitive, direct, indirect or consequential (including any claim for loss of profits) however caused which may be suffered or incurred by the Subscriber or any third person or which may arise directly or indirectly out of or in respect of this contract or the services (or its maintenance) or by reason of any act or omission on the part of MSGTAG to comply with its obligations under this contract.

4. Notwithstanding anything herein contained or implied no employee, agent or director of MSGTAG will be liable to the Subscriber for any breach of duty or care in contract, tort, equity or otherwise in relation to the performance of obligations under this contract or in relation to the subject matter of this contract.

5. To the maximum extent permitted by law all terms, warranties or representations, whether statutory or otherwise and whether express or implied, oral or written as to the state, merchantability, quality, fitness for purpose or fitness of the services and its maintenance are hereby excluded.

6. Notwithstanding anything else herein contained or implied MSGTAG is not attempting to exclude any of its legal liabilities under the Consumer Guarantees Act 1993.

7. This clause shall survive termination of this contract.

11. Relationship of the Parties: The Subscriber warrants it has not relied on: 

1. Any representation made by or on behalf of MSGTAG which has not been expressly stated in this contract; or upon any publicity material or brochures produced by or on behalf of MSGTAG.

2. This contract constitutes the complete and exclusive understanding between the parties in relation to the subject matter hereof and supersedes all prior contracts, proposals, communications and representations made by either party (whether oral or written) and this contract may only be modified if such modification is in writing and signed by a duly authorised representative of each party. This contract shall prevail over any inconsistent terms and conditions in any other contract between the parties whether in correspondence or otherwise and any conditions or stipulations to the contrary are hereby excluded and extinguished. Except as otherwise expressly stated in this contract, neither party has any other responsibility or obligation to the other.

3. Non Waiver: Failure by any party to enforce any right or obligation with respect to any matter arising in connection with this contract shall not constitute a waiver as to that matter or any other matter either then or in the future. Any waiver of any right or obligation under this contract shall only be of any force and effect if such waiver is in writing and is expressly stated to be a waiver of a specified right or obligation under this contract.

4. Should any provision of this contract be held to be illegal, invalid, or unenforceable by a court law, the legality, validity and enforceability of the remaining provisions of this contract shall remain unaffected thereby unless otherwise stated.

These Terms and Conditions supersede all previous representations, understandings or contracts and shall prevail notwithstanding any variance with terms and conditions of any order submitted. This document shall be construed, interpreted and governed by the laws of New Zealand. Use of the Service constitutes acceptance of these Terms and Conditions.