Active Trail LTD. (“ActiveTrail”) provides business and organizations with a variety of tools and resources to create, launch, and manage online email campaigns or other services, including surveys, short message services (SMS) and landing pages (the “Email Marketing Product”). The Email Marketing Product and any related offerings are referred to in these Terms and Conditions of Use as the (“Product”). ActiveTrail’s Product 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 Product. By clicking the ‘I accept’ button on the sign-up page, by logging in to your ActiveTrail account or by accessing the ActiveTrail services via any API interface, you accept these terms and conditions of Use.
1. Copyright and Trademark Information
Copyright© 2004-2016 ActiveTrail, LTD. All Rights Reserved.
This web site, and the information which it contains, is the property of ActiveTrail and its affiliates and licensors, and is protected from unauthorized copying and dissemination by local state laws, copyright law, trademark law, international conventions and other local and international intellectual property laws. By way of example only, and not as a limitation, “ActiveTrail” and the ActiveTrail logo are registered trademarks of ActiveTrail, LTD. under the applicable laws of Israel and/or other countries. Other ActiveTrail products or services names or logos appearing in this site are either trademarks or registered trademarks of ActiveTrail, LTD. and/or its affiliates. The absence of a product or service name or logo from this list does not constitute a waiver of ActiveTrail’s trademark or other intellectual property rights concerning that name or logo.
2. Representations and Acknowledgements
Subject in each case to the terms listed in the remainder of this Agreement (as defined in Section 3 below), you hereby represent, acknowledge and agree that:
- The Product may not be used for the sending of unsolicited email (sometimes called “spam”).
- The Product may only be used for lawful purposes and according to international and local state laws and regulations.
- The Email Marketing Product will be subject to monthly subscription fees once you have completed your free trial period or have exceeded the free subscriber limit. The Email Marketing Product may also be subject to per message and overage charges. For more information on fees, see Section 4 below and the Fee Schedule.
- 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.
- Every email message sent by you in connection with the Product must and will contain the ActiveTrail “unsubscribe” link that allows the recipient to remove themselves from your mailing list.
- You will comply with the restrictions on content of email messages and activities using the Product as set forth or referenced in this Agreement.
- You acknowledge and agree that you are the sole or designated “sender” and “advertiser” (as such term is defined in the CAN-SPAM Act of 2003 and any rules adopted under such act or any international and local state laws) of any email message sent by you using the Product. You shall clearly mention that you are the “sender” and “advertiser” in every email message sent by you.
- You agree that the “from” line of any email message sent by you using the Product will accurately and in a non-deceptive manner identify your organization, your product or your service.
- You agree that the “subject” line of any email message sent by you using the Product will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
- You agree that any email message sent by you using the Product will include your valid physical address.
- If you are accessing or using the Product through a third party service or web site (“Third Party Service”), you will abide by these Terms and Conditions of Use regardless of anything to the contrary in your agreement with such third party. You shall not use such Third Party Service to avoid the restrictions set forth in these Terms and Conditions of Use.
3. Product and Support
- (1) Not use such images separate and apart from the Product;
- (2) Not use an Image in a way that places any person depicted in the Image in a bad light or in a way that they may find offensive – this includes, but is not limited to the use of Images: a) in pornography, “adult videos” or the like; b) in ads for tobacco products or other addictive substances; c) in ads or promotional materials for adult entertainment clubs or similar venues, or for escort, dating or similar services; d) in connection with political endorsements; e) in advertisements and/or promotional materials for pharmaceutical, healthcare, herbal or medical products (including, but not limited to dietary supplements, digestive aids, herbal supplements, personal hygiene or birth control products), if the use implies that the depicted person suffers from a physical or mental infirmity, ailment or condition or engages in any immoral or illegal activity; and f) in any manner that is defamatory, or contains unlawful or offensive content;
- (3) Not use an Image (in whole or in part) as a trademark, service mark, logo, or other indication of origin, or as part thereof, or to otherwise endorse or imply the endorsement of any goods and/or services;
- (4) Not use an Image in a manner that infringes upon any third party’s trademark or other intellectual property;
- (5) Not share Images by providing access to such Image on shared disk drives, computer networks, servers, cloud network or other intranets of any nature or otherwise.
4. Refer a Friend
4.1 The Refer A Friend Program is a program which enables Active Trail users to receive consideration for the referral of third parties, when they become paying users of the Active Trail system, as detailed below.
4.2 Active Trail will be entitled to terminate\modify the terms of the Refer a Friend Program at any stage, at its sole discretion and without prior notice.
4.3 Any active user of the Active Trail System, who will refer a third party to Active Trail (Hereinafter: the “Referrer”), where such third party is not a current or past user of the Active Trail system, and such referred third party shall become an active user of the Active Trail system, in a monthly subscription program (Hereinafter: the “Referred Party”), will be entitled to receive from Active Trail credit in the sum of US$25 (Hereinafter: the “Credit”). The Referrer will be entitled to use the Credit solely as credit against payments of monthly subscription fees (it will not be possible to receive money in consideration of the Credit).
4.4 The Referred Party shall also be entitled to credit in the sum of US$25 which the Referred Party may solely as credit against payments of monthly subscription fees (it will not be possible to receive money in consideration of the Credit).
4.5 For the avoidance of doubt it is clarified that neither the Referrer or the Referred Party will be entitled to any consideration where the Referred Party became a user in a program other than a monthly subscription program (eg. a pay as you go program). It is also clarified that neither the Referrer nor the Referred Party will be entitled to use the Credit in any way (such as against payments in a pay as you go program) other than as credit against monthly subscription fees in a monthly subscription fee program.
4.6 The Referrer will receive the Credit automatically and it will be deducted from the next monthly fee of the Referrer in the Active Trail System. The Referred Party will receive the Credit automatically and it will be deducted from the first payment charged to the Referred Party.
4.7 The Credit will be valid only in the event the Referred Party remains an active user of the Active Trail system for a period of three months. In the event the Referred Party reneges from the transaction or cancels it prior to such time, for any reason whatsoever, the Credit will be immediately revoked, cancelled and forfeited and both Referrer and Referred Party will be charged a fee in the sum previously credited.
4.8 The Credit is personal, may not be transferred to any third party and may only be used by the Referrer and the Referred Party.
5. Affiliate Program
5.1 The Affiliate Program is a program which enables Active Trail users to advertise and offer the Active Trail System services to third parties (Hereinafter: the “Partner”) and to receive consideration from Active Trail for every third party referred to Active Trail by such Partner, when such third party becomes a paying user of the Active Trail Mailing system, and where such third party is not a current or past user of the Active Trail system (Hereinafter: the “Referred Party”), all as detailed below.
For the avoidance of doubt it is clarified that a client who will purchase another program, other than the Mailing System – such as the SMS program for example, will not entitle the Partner to any consideration and will not be considered a Referred Party under the Partner Program.
5.2 Active Trail will be entitled to terminate\modify the terms of the Partner Program at any stage, at its sole discretion and without prior notice.
5.3 A user of the Active Trail System wishing to join the Partner Program will apply (Hereinafter an: “Applicant”) and will become a Partner only after Active Trail has approved his application. Active Trail will be entitled to approve and/or reject any application to become a Partner, for any reason whatsoever and shall not be required to justify its decision. Active Trail will also be entitled, at any stage, to notify of the cancellation of an approval granted by it to a Partner, for any reason whatsoever and without justification, and such Partner’s participation in the Partner Program shall be terminated as of the sending of such notification.
5.4 Every Applicant will fill a form including his full and accurate details as required by the system. In the case that it will become apparent that an Applicant neglected to include material details and/or included incorrect details, Active Trail may cancel his Partnership and the Applicant will not be entitled to any consideration, including any fees accrued in his favor.
5.5 The Partner declares and undertakes as follows:
5.5.1 He shall perform any instruction provided from time to time by Active Trail in respect of the Partner Program and in respect of the ways and means allowed by Active Trail to perform advertising.
5.5.2 He will accurately follow instructions, directives and requests of Active Trail in respect of advertising and will immediately act to perform and instruction received from Active Trail in respect of an advertisement.
5.5.3 All information, content, products and services appearing in the Partner site belong to the Partner and he either owns the copyrights thereto or has received a lawful license to use them. The Partner possesses the legal right to distribute the information and services in his site.
5.5.4 The content of the Partner site and media will not link to and/or refer to and/or contain any of the following content and/or information:
18.104.22.168 Adult only content, such as, but not limited to, pornographic content etc.
22.214.171.124 Content including profane language and/or racist content and/or abusive content and/or hatred content and/or defamatory content and/or threatening content and/or content calling for harm to any third party and/or any content of an abusive, offensive, hostile, profane or damaging to the public sentiment nature, or which may serve as a basis for a civil claim or otherwise breaches Israeli Law;
126.96.36.199 Content which interferes with or breaches the property rights of any third party, including, but not limited to, intellectual property rights.
188.8.131.52 Computer violations of any type whatsoever, including but not limited to computer software, computer code or application including computer viruses, Trojan horses, worms, vandals, malicious application hacking etc.
184.108.40.206 Any illegal content and/or content assisting and/or encouraging and/or supporting and/or providing instruction for the performance of an act which is a crime under Israeli Law.
220.127.116.11 Content calling for the purchase and/or consumption of drugs and/or alcohol and/or medicine and/or the use of gambling or lottery sites.
18.104.22.168 Any other content which Active Trail may from time to time demand a Partner site to not contain.
5.6 The Partner may not sell and/or assign and/or transfer and/or endorse or make any commercial use of the rights granted to it under the Partner Program.
5.7 The Partner hereby declares and undertakes that he is fully aware of and knows the laws, rules, regulations and decrees in relation to advertising and distribution of information, on the internet and otherwise. The Partner will not send emails and will not approach third parties in contradiction to the law. The Partner undertakes to indemnify and compensate Active Trail against any claim and/or demand and/or suit brought by a third party against Active Trail as a result of the Partners action, immediately upon Active Trail’s first demand. It is clarified that the Partner will be solely responsible for the legality of his actions and Active Trail shall bear no responsibility as a result of the actions or advertising of the Partner.
5.8.1 The Partner will be entitled to a commission in accordance with the program joined by him, on the condition that Active Trail had approved for the Partner the program chosen by the Partner. Inasmuch as the program chosen by the Partner was not approved, the Partner will receive the commission in accordance with the approved program. 5.8.2 There are three commission programs available:
22.214.171.124 Rev-Share – according to this program, the Partner will be entitled to payment of a commission according to a percentage set by Active Trail of all income to Active Trail from the Referred Party during the three year period commencing with the referral date.
126.96.36.199 Cost per Lead – according to this program, the Partner will be entitled to payment of a fixed commission, determined by Active Trail, for each Referred Party subscribing to Active Trail services.
188.8.131.52 Cost per Acquisition – according to this program, the Partner will be entitled to payment of a fixed commission, determined by Active Trail, for each Referred Party subscribing to Active Trail services and commencing payment to Active Trail for services provided.
5.8.3 Each Partner may join one program or more, all subject to the consent and approval of Active Trail. Active Trial may, at any time, for any reason and without prior notice, move a Partner from one program to another, change the terms of the programs or the commissions set, and may terminate the engagement with the Partner.
5.8.4 Payment of commissions to a Partner in respect of each month will be on the later of the last day of the month following or current +30 days from receipt of a valid Partner tax invoice. If the Partner is a individual, payment will be performed after deduction at source as required by law.
5.8.5 The Partner will not be entitled to the commission where the Referred Party cancelled the transaction. In the event a transaction with a Referred Party was cancelled after payment of the commission in respect of such transaction, the sum paid to the Partner will be set off against future payments due to the Partner. In the event no such future payments are due, Active Trail may demand from the Partner the return of the excess paid.
5.8.6 Active Trail will transfer the commission to the Partner only when the accrued sum in favor of the Partner exceeds US$50.
5.8.7 The Commissions to which a Partner is entitled are the commissions determined by the Active Trail system, in accordance with the technological means available in the system, through which Active Trail may track Partner activity and ensure the a certain Referred Party was indeed referred by the Partner. If the Active Trail system does not show record of a specific party being referred by the Partner, the Partner will not be entitled to any commission in respect of such party.
5.8.8 In the event of any disagreement between the Partner and Active Trail as to the Commissions due to the Partner, the data and information appearing in the Active Trail system shall be determining and binding upon the parties.
5.9 Your joining as a Partner to the system shall not serve to create any partnership between you and Active Trail and/or any employee/employer, representation or emissary relationship. You hereby declare and undertake that you will not present yourself as a partner, emissary, or representative acting on behalf of Active Trail.
6.1 Fees for Email Marketing Product. For the Email Marketing Product, once you have completed your free trial period or you have exceeded the free subscriber limit, you will be subject to monthly subscription fees which ActiveTrail will determine. In case of denied or missing payment, access to the Email Marketing Product will be disabled until payment is received. Fees will be billed monthly according to ActiveTrail’s price list and the services which have been used.
6.2 Fee Schedule; Discounts. The Fee is subject to change at any time in ActiveTrail’s sole discretion. ActiveTrail will use good faith efforts to notify you via email prior to the effectiveness of any change to the Fee.
6.3 Payment. You hereby authorize ActiveTrail to charge your credit card or send you an invoice or charge you in any other manner chosen by you upon your registration, on a regular monthly basis beginning at the end of your free trial period and continuing until such time as your account is terminated. If ActiveTrail is for any reason unable to effect automatic payment via your credit card, ActiveTrail will attempt to notify you via email and your ActiveTrail account will be disabled until payment is received. Amounts paid for the setup of the Product are not refundable.
6.4 ActiveTrail, at its own discretion, reserves the right to cancel the “free forever”, the trial period or any other plan including the cancellation of any plan for already existing users by issuing a 30 day email notice.
7.1 Subscriber Opt Out. Every email message sent in connection with the Product will contain an “unsubscribe” link that allows subscribers to remove themselves from your mailing list. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link.
7.2 Permission Practices. You agree to import, access or otherwise use only Permission Based Lists in connection with your use of the Product in compliance with any international and local state laws. You hereby covenant that you shall not use any other lists in connection with your use of the Product. If you have used the ActiveTrail feature that allows you to request a recipient to confirm that you have his or her permission to send emails to him or her, and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send emails to that recipient. 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 ActiveTrail template or any other features or functionality from the Product and use them for any purpose other than sending email messages from the Product. Emails that you send through the Product may generate spam complaints from recipients. You are responsible for ensuring that your email campaigns do not generate a number of spam complaints in excess of industry norms. ActiveTrail, 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. ActiveTrail will terminate your use of its Product if ActiveTrail determines that your level of spam complaints is higher than industry norms.
7.3 Footers. For every email message sent in connection with the Product, you acknowledge and agree that ActiveTrail may add an identifying footer stating “Email Marketing by ActiveTrail,” “Powered by ActiveTrail” or a similar message.
7.4 Prohibited Content. ActiveTrail prohibits the use of the Product or web site by any person or entity that:
- Provides, sells or offers to sell any of the following Product or content (or services related to the same): pornography or illicitly pornographic sexual Product, 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 Product, 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 Product, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
- 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 Product 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.
7.5 Right to Disable Access. ActiveTrail, at its own discretion, may immediately disable your access to the Product without refund if ActiveTrail believes in its sole discretion that you have violated any of the policies listed above or elsewhere in this Agreement.
8.1 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 Product or any software, documentation, or data related to the Product (“Software”); remove any proprietary notices or labels from the Product or any Software, modify, translate, or create derivative works based on the Product or any Software; or copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Product or any Software.
Unless you are an authorized reseller or franchisee of the Product, you may not display, copy, reproduce, or distribute the Software, any component thereof, any documentation provided in connection with the Product or the Software, or any content, including but not limited to newsletters, distributed to you by ActiveTrail in connection with the Product. Violation of these restrictions may result in the termination of this Agreement.
8.2 Compliance with Laws; Monitoring. You shall use the Product only in compliance with this Agreement and all other applicable Local state and international laws (including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation, copyright and trademark infringement and child protective email address registry laws). Although ActiveTrail has no obligation to monitor the content provided by you or your use of the Product, ActiveTrail may do so and may block any email messages, remove any such content or prohibit any use of the Product that ActiveTrail believes may be (or is alleged to be) in violation of the foregoing. 6.3 Indemnification. You hereby agree to defend, indemnify and hold harmless ActiveTrail 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 Product or (iii)otherwise arises from or relates to your use of the Product. In addition, you acknowledge and agree that ActiveTrail has the right to seek damages when you use the Product 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. 6.4 Your Information. In using the varied features of the Product, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to ActiveTrail. ActiveTrail may use this information and any technical information about your use of the Product to tailor its presentations to you, facilitate your movement through the Product, or communicate separately with you. If you accessed the Product as a result of solicitation by a marketing partner of ActiveTrail, ActiveTrail may share your information with the marketing partner and the marketing partner may share related information with ActiveTrail. Except as described above,ActiveTrail will not provide your information, including your contact and account information, to third parties who you have not authorized to receive such information, except(i) as required by law or court order, including without limitation judicial process and law enforcement, or in the good-faith belief that such action is necessary to comply with law or a court order or (ii) if your ActiveTrail account was terminated from due to unsolicited commercial email being sent from your ActiveTrail account. ActiveTrail will never sell or rent your contact lists to anyone without your permission and acknowledges your ownership right in your contact lists. In the event ActiveTrail amends or revises the policy described in the immediately preceding sentence, it will provide advance notice of such amendment or revision. 6.5 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 Product 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 Product, 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 ActiveTrail or to any third party using the Product, 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 ActiveTrail 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 ActiveTrail by email, you automatically grant—or warrant that the owner of such content or intellectual property has expressly granted—ActiveTrail 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.
You may terminate this Agreement at any time by calling ActiveTrail Customer Support or terminating your account on the Website. There are no refunds for any fees paid. YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT AND ACTIVETRAIL 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.
ActiveTrail may terminate this Agreement or the Product, 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. ActiveTrail shall have no liability to you or any third party because of such termination or action.
If your account is classified (at ActiveTrail’s sole discretion) as inactive for over 120 days or has a large amount of Spam Complaints or Unsubscribes, ActiveTrail has the right to permanently delete your subscriber data. ActiveTrail will use good faith efforts to contact you via email prior to taking any permanent removal actions.
10. Warranty Disclaimer; Remedies
USE OF THE PRODUCT AND ANY RELIANCE BY YOU UPON THE PRODUCT, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. ACTIVETRAIL DOES NOT WARRANT THAT THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCT. THE PRODUCT ARE PROVIDED “AS IS” AND ACTIVETRAIL 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 Product shall be for ActiveTrail to use commercially reasonable efforts to adjust or repair the Product.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL ACTIVETRAIL 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 “ACTIVETRAIL”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF ACTIVETRAIL SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. IN THE EVENT THAT, NOTWITHSTANDING THE FOREGOING, ACTIVETRAIL 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 ACTIVETRAIL TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE PRODUCT IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY ACTIVETRAIL TO YOU IN THAT TWELVE (12) MONTH PERIOD. THE LIABILITY OF ACTIVETRAIL TO YOU OR ANYONE ON YOUR BEHALF MAY ARISE ONLY IF NOTICE OF ANY SUCH CLAIM IS MADE PRIOR TO THE LAPSE OF 12 MONTHS SINCE THE CAUSE OF SUCH CLAIM HAS RISEN.
You are responsible for maintaining the security of your account, passwords, and files. ActiveTrail 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 email or by phone, or through a Third Party Service, if any, through which you access the Product. ActiveTrail has no knowledge of your organizational structure, if you are registering for the Product as an entity, or your personal relationships, if you are a person. ActiveTrail 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.
13.1. 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.
13.2 ActiveTrail 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. You acknowledge and agree that ActiveTrail may change this Agreement from time to time, as shall be published on the Website or Product. 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.
13.3. Assignment. This Agreement may be assigned by ActiveTrail to any entity which assumes its obligations and acquires ownership of or the right to use and license the Products.
13.4. Governing Law; Jurisdiction; Any dispute or legal proceeding regarding any matter connected with this Agreement or arising there from, shall be initiated only and exclusively by means of an application to the competent courts of Tel Aviv, Israel, and in such case, only the laws of the State of Israel shall apply. The provisions of this clause will survive the termination of this Agreement. If any legal action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney’s fees and costs in addition to any other relief to which that party may be entitled.
13.5. Force Majeure: Neither party to this Agreement shall be held responsible for the performance of any obligations under this Agreement provided such performance is hindered or prevented by any circumstances of Force Majeure which are deemed to include war, terror, sabotage, riot, strike, lock-out, flood, or other natural catastrophes or national or local government regulations. Upon the ending of such circumstance, the frustrated party shall without delay resume the fulfillment of its obligations including any obligations, the performance of which was interrupted thereby.
If you have any questions about the rights and restrictions above, please contact ActiveTrail by email at email@example.com.
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