Terms of Service: General

TERMS OF SERVICE

Addendum 2: General

This Addendum is incorporated into the Terms of Service with its other Addenda, hyper-linked here for your convenience:

General sections (23)

  1. Customer Information. You agree you have completed all forms, documents and information, and the information provided is to the best of your knowledge correct, and that we may rely on your supplied information in performing Service, term and conditions of this Agreement.  Any materially incorrect data provided to us may cause a delay in Service and Supplemental Services, resulting in additional charges and fees.
  2. Satisfaction Guarantee. The first 30 days of service is free-of-charge (“Free Trial Period”).  You may cancel your services during these first 30 days without further obligation; after 30 days, the entirety of service fees once collected are non-refundable.  The Service Level Agreement (SLA) sets forth your sole remedies for any claim relating to Service, including any failure to meet any guarantee set forth in the SLA.
  3. Cancellation. This Agreement may be canceled at any time with thirty five (35) days notice by either of us in writing, using the Customer Center resources.  Also see Billing Addendum: Cancellation.
  4. Service Change.  All products, services and Pricing provided by us are subject to our business policies, practices, and procedures, which we may change at any time and from time to time in our sole discretion without notice to you.  We retain the right to change Pricing hereunder if required to by regulation, statute or rule of any governmental entity or applicable rule of law.  We will make commercially reasonable efforts to provide thirty (30) days written notice in the event of a material change.  If any changes materially, adversely affect your Pricing or Service, your right to terminate this Agreement is your only remedy.
  5. Service Value. You understand and agree by signing up for Service, you receive material value, equating to no less than the full Service’s entire purchase price, from setup of, access to, licensing, availability of and reservation of our Service, regardless of your actual use (“Usage”) of any Service.
  6. Not for Resale.  Our Service may only be resold with our written approval under the terms of our Reseller Agreement.  Contact us with interest in our Reseller Program.
  7. Non-hire: during the term of this agreement and for a period of 24 months following any of our Service to you, We agree that neither party shall directly or indirectly hire, solicit, or encourage to leave the other party’s employment, any employee, consultant or contractor of the other party, or hire any such employee, consultant or contractor who has left the other party’s employment or contractual engagement. The parties acknowledge that either party’s breach of this provision cannot be reasonably or adequately compensated by damages in any action at law, and said breach of this provision of this Agreement will cause the damaged party irreparable injury and damage. The parties expressly agree that the damaged party shall be entitled to injunctive and other equitable relief in the event of, or to prevent, the other party’s breach of this provision of this Agreement. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that the damaged party may have for damages or otherwise.  The various rights and remedies of the damaged party under this Agreement or otherwise shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law.
  8. Privacy: We will treat any and all information we acquire in order to access your computer systems and network, including but not limited to passwords, IP addresses, and access codes, as Confidential Information.  We shall not disclose any such Confidential Information to any third parties, except as may be necessary or potentially necessary to assist us in providing Service to you, in anti-fraud detection and payment processing, in response to a subpoena, in response to suspected Abuse or other unlawful use, or for the purpose of backups.  Prior to giving third parties access to Confidential Information, we will have executed agreements with the Third Parties substantially mirroring this Privacy section.  Within 30 days of your written request, any Confidential Information shall be returned to you or destroyed.  We will not access your Accounts except to provide Service, for trouble-shooting purposes, in response to a request from law enforcement, in response to suspected Abuse or other unlawful use, or for purposes of backups. The obligations to maintain the confidentiality of the Confidential Information shall continue for one (1) year after the end of the Agreement. The terms of our online privacy policy also apply: http://zmailcloud.com/privacy-policy
  9. Confidential Information:
    1. Use. Each party agrees to use Confidential Information solely for the purpose of evaluating the commercial potential of and pursuing a business relationship with the other party and to use reasonable care to disclose Confidential Information only to employees, partners or consultants of the receiving party who need access to the Confidential Information in the ordinary course of their employment.  “Confidential Information” means all technical and non-technical information concerning the disclosing party’s business not generally known to the public, which is disclosed to the receiving party either in written or oral form, including but not limited to the following information:  patents, copyrights, trademarks, brand name, experimental work, purchasing, manufacturing, future and proposed products and services, procurement requirements, business forecasts, trade secrets, know-how, inventions, techniques, processes, algorithms, software, schematics, software source documents, contracts, customer lists, financial information, and sales and marketing plans.
    2. Ownership. All Confidential Information and any products of the Confidential Information, regardless of which party creates the such products, shall remain the property of the disclosing party, and no license or other rights to such disclosing party’s Confidential Information or products thereof is granted or implied hereby.  At the disclosing party’s request and no later than five (5) business days after such request, the receiving party shall promptly destroy or deliver to the disclosing party, at the disclosing party’s option: (a) all materials furnished to the receiving party by the disclosing party; (b)  all tangible media of expression in such receiving party’s possession or control that contains Confidential Information; and (c) written certification of such receiving party’s compliance with the obligations contained in this Agreement.
    3. Independent Development. Each party understands that the receiving party may currently or in the future be developing information internally, or receiving information from third parties that may be similar to the disclosing party’s Confidential Information.  Accordingly, nothing in this Agreement shall be construed as a representation or inference that such receiving party will not develop products or services, or have products or services developed that, without violation of this Agreement, compete with the products or services contemplated by the disclosing party’s Confidential Information.
    4. Injunctive Relief. The parties acknowledge that a breach by either party of any provision of this Agreement will result in irreparable and continuing damage to the other party for which there will be no adequate remedy at law, and such other party shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate).
  10. Intellectual Property.  Except as otherwise expressly provided herein, nothing contained in this Agreement shall be construed as conferring by implication or otherwise any license or right under any patent, trade name or copyright of zMailCloud, Third-Party Licensor, or Customer.
  11. Third-Party Services.  Provided subject to the following conditions:
    1. You agree to the Third-Party Service Providers’ current License Agreements as applicable to your jurisdiction. As we are regularly developing our solution, Third-Party Service Providers’ agreements may be changed from time-to-time by us at our sole discretion, without notification or remedy, which include without limitation:
      1. http://na.blackberry.com/eng/legal/bbsla.jsp
      2. http://files.zimbra.com/website/docs/zimbra_network_la.pdf
    2. Use of Third-Party-Services for any purpose other than internal business or personal purposes is prohibited.
    3. Our Third-Party Service Providers are not responsible to you for any warranty provided by us.  We provide no warranty.
    4. We do not represent or act as an agent of Third-Party Service Providers.
    5. Your rights to Third-Party Services under this section will automatically terminate upon the termination of all or any portion of our licensing agreement with Third-Party Service Providers and/or the termination of this Agreement.
    6. You consent to providing Third-Party Service Providers with information that personally identifies (or can be used together with other information to personally identify) you for the sole purpose of providing Third-Party Services to you.
    7. In the event of a breach of any of these conditions, Third-Party Services Providers will be Third-Party beneficiaries to this agreement.
    8. The liability of Third-Party Services Providers, will be limited or excluded to the same extent as is provided in the agreements of Third-Party Service Providers.
    9. We are permitted to immediately terminate your rights and access to Services dependent on Third-Party Services upon a breach of any terms of this Agreement.
    10. You may not, or permit any third party to: (i) sublicense, rent, lease, sell, offer to sell, distribute, or otherwise transfer rights to the Third-Party Services; (ii) distribute the Third-Party Services or derivative works thereof; (iii) copy the Third-Party Services (other than as expressly provided herein); (iv) remove any proprietary markings, copyright, notices, logos, trademarks, trade names or labels on the Third-Party Services; provided, however, that You may replace Third-Party Services Provider’s company’s logo in the Third-Party Services with your logo; (v) use the embedded database software, if any, as a general SQL server, as a standalone database or with applications other than the Third-Party Services; (vi) use the Third-Party Services on any computer not controlled by the Us; or (vii) allow any third party, other than your End Users to use the Third-Party Services;
    11. This Agreement only provides a personal, non-transferable, terminable and non-exclusive license to access the Third-Party Software for your internal business. You may not use Third-Party Software on more Mailboxes than the number for which you pay us.
    12. The Third-Party Service Providers, as our licensors, retains all right, title and interest, including any Intellectual Property Rights, in and to the Third-Party Services and all portions thereof, and no title to the Third-Party Services, or any Intellectual Property Rights in the Third-Party Services, is transferred to you.
    13. Additionally, you will bind your end users, if any, that are third party consultants, contractors, service providers, agents or representatives to the terms of this Terms of Service: General, Section 11, and perform any act or execute any document that may be required to bind such end users in the jurisdiction in which such end users will be using the Third-Party Services and you will indemnify and hold us harmless from any losses or expenses arising out of or related to a breach of the foregoing requirement.
  12. Section Headings:  Title and headings of sections of this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement.
  13. Transfer and Assignment: Neither party, other than for collateral purposes, may sell, assign or transfer this Agreement without the prior written consent of the other party, except that either party may assign this Agreement to any of its affiliates or any person or entity who acquires substantially all of its assets.
  14. LIMITATIONS TO SERVICE: We do not promise that the Service will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information and property.  ZMAILCLOUD AND/OR ITS THIRD PARTY SERVICE PROVIDER RESERVES THE RIGHT TO REFRAIN FROM PROVIDING ANY OR ALL SERVICES ORDERED AND INSTEAD REFUND THE CUSTOMER’S PAYMENT, WHOLLY OR IN PART, ON THE BASIS THAT THE MINIMUM SYSTEM REQUIREMENTS ARE NOT MET OR THE TECHNICAL NEEDS (INCLUDING WIRING OR OVERCOMING PHYSICAL OR TECHNICAL BARRIERS) OR OTHER REQUIREMENTS OF THE CUSTOMER ARE UNUSUAL OR EXTENSIVE AND BEYOND THE SCOPE OF THIS SERVICE AGREEMENT AS REASONABLY DETERMINED BY ZMAILCLOUD AND/OR ITS THIRD PARTY SERVICE PROVIDER AND/OR LICENSOR.  ZMAILCLOUD MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY SERVICES AND RELATED SUPPORT SERVICES AND AS BETWEEN YOU AND ZMAILCLOUD, SUCH SERVICES ARE PROVIDED “AS IS.”  Our Service is subject to availability of our qualified team members and our communications services.
  15. Compliance with Laws:  You will strictly comply with all applicable laws and regulations relating in any manner to the distribution of the Service and software including, but not limited to, (i) complying with all applicable United States export laws, rules, and regulations, and (ii) obtaining all necessary export and import licenses or permits and any other government approval necessary for the importation of the software or Service into any country other than the United States.  You confirm it will not export or re-export software or Service, directly or indirectly either to (a) any countries that are the subject to United States export restrictions; any End User who you know or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons; or any End User who you know has been prohibited from participating in the United States export transactions by any federal agency of the United States Government.  You acknowledge that software and Service may include technical data subject to export and re-export restrictions imposed by United States law.
  16. You represent and warrant: (a) You have received all necessary permits, licenses, approvals, grants and charters of whatsoever kind necessary to carry out the business in which you are engaged; and (b) you have complied and does comply with all laws, regulations, orders and statutes which may be applicable to you whether local, state, federal or foreign.   From the date of this Agreement until the termination hereof, you agree to operate in accordance with and to maintain current all such certifications, permits, licenses, approvals, grants and charters, and to comply with all applicable laws, regulations, orders and statutes, whether local, state, federal or foreign.  You agree to indemnify, defend and hold harmless us from all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses, arising out of your failure to comply with this provision.
  17. We represent and warrant: (a) We have received all necessary permits, licenses, approvals, grants and charters of whatsoever kind necessary to carry out the business in which we are engaged; and (b) We have complied and do comply with all laws, regulations, orders and statutes which may be applicable to us whether local, state, federal or foreign.   From the date of this Agreement until the termination hereof, we agree to operate in accordance with and to maintain current all such certifications, permits, licenses, approvals, grants and charters, and to comply with all applicable laws, regulations, orders and statutes, whether local, state, federal or foreign.  We agree to indemnify, defend and hold harmless you from all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses, arising out of our failure to comply with this provision.
  18. FORCE MAJEURE: If we and/or our third party service provider’s ability to render services is impaired by you or circumstances beyond the control of us and/or our third party service provider, we and/or our third party service provider may choose not to provide Service, at our sole discretion, without remedy.
  19. LIMITATION OF REMEDY: NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT SHALL THE LIABILITY OF ZMAILCLOUD, ITS EMPLOYEES AND INDEPENDENT CONTRACTORS, AND/OR ITS THIRD-PARTY SERVICE PROVIDER(S) EXCEED THE AMOUNT YOU PAID FOR THE SERVICES, DURING THE PERIOD OF ANY FAILURE, DELAY, OR NON-PERFORMANCE OF SAID SERVICES, THAT GAVE RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT SHALL ZMAILCLOUD, ITS EMPLOYEES AND INDEPENDENT CONTRACTORS, AND/OR ITS THIRD-PARTY SERVICE PROVIDER(S) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXPENSES COSTS, PROFITS, LOST SAVINGS OR EARNINGS, LOST OR CORRUPTED DATA, OR OTHER LIABILITY ARISING OUT OF, OR RELATED TO, THE SERVICES PROVIDED BY ZMAILCLOUD AND/OR ITS THIRD PARTY SERVICE PROVIDER(S) OR OUT OF THE INSTALLATION, DE-INSTALLATION, USE OF, OR INABILITY TO USE YOUR COMPUTER SOFTWARE, HARDWARE, PERIPHERALS, OR THE NETWORK RESULTING FROM THE SERVICES PROVIDED HEREUNDER. OUR THIRD-PARTY SERVICES PROVIDERS SHALL BE THIRD-PARTY BENIFICIARIES TO THESE LIMITATIONS AND EXCLUSIONS OF LIABILITY.
  20. RELEASE OF LIABILITY: BY AGREEING TO THESE TERMS, NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT YOU AFFIRMATIVELY RELEASE AND HOLD HARMLESS ZMAILCLOUD, ITS EMPLOYEES AND INDEPENDENT CONTRACTORS, AND/OR ITS THIRD PARTY SERVICE PROVIDER(S) FROM AND AGAINST ANY LOSS, LIABILITY, OR DAMAGE THAT YOU, YOUR ORGANIZATION OR A THIRD PARTY MAY SUFFER, INCLUDING AND NOT LIMITED TO ANY LOSS OF ANY DATA AND THE NON-FUNCTIONING OF ANY COMPONENT OR ELEMENT OF YOUR COMPUTER SOFTWARE, HARDWARE OR NETWORK RESULTING FROM ZMAILCLOUD, ITS EMPLOYEES , INDEPENDENT CONTRACTORS, THIRD PARTY SERVICE PROVIDERS, AGENTS, AND LICENSORS, REGARDLESS OF WARRANTIES, DISCLAIMERS AND WAIVERS.
  21. Notices:  Unless specifically noted otherwise, all notices required to be given to either party shall be sent to the names and e-mail address as presented by you to you, and to us at: legal (at) zmailcloud.com.
  22. Severability:  Each provision of this Agreement and any Amendment(s) must be interpreted in a way that is valid under applicable law.  If any provision is held invalid, the remaining provisions of the Agreement and any Amendment(s) will remain in full effect.
  23. Remedies Cumulative:  Any rights of termination, cancellation, liquidated damages or other remedies prescribed in this Agreement and Amendment(s) are cumulative and are not intended to be exclusive of other remedies to which the injured party may be entitled at law or equity in case of any breach or threatened breach by the other party of any provision of this Agreement.  Use of one or more remedies shall not bar use of any other remedy for the purpose of enforcing provisions of this Agreement; provided, however, that a party shall not be entitled to retaining the benefit of inconsistent remedies.   This Agreement is governed by the laws of the State of Illinois, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Cook County, Illinois. You and we waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
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