Email Archive Terms
36 Email Archive Agreement
This entire clause 36 relates to the Email Archive Product.
36.1 Representations by us
36.1.1 Application of these Terms in respect of representations
You acknowledge and irrevocably agree that
- Any reliance you place on any representation(s) on other pages of the Site are subject to the terms and clarification specified in this Agreement, especially clause 36.1.2;
- You can only expect Services in accordance with the terms of this Agreement, and
- In the event of any inconsistency between the representation(s) on other pages of the Site, and this Agreement, especially clause 36.1.2, the terms of this Agreement shall prevail over the representations - and your expectations of the Service shall be limited to the representations in this Agreement.
- For the purposes of this clause 36.1, references to "data" shall include all emails and email attachments, but shall not include calendar data, contact information, tasks, and notes.
- Email Archive is an online backup service which automatically copies data from your Email Hosting service in real-time and stores that data in a Cloud-based server.
- This service will only backup data which is transmitted or received up to twenty-four (24) hours after the Email Archive service is successfully activated for your Email Hosting service.
- Any data which exists in your Email Hosting service prior to the Email Archive being successfully activated will not be transferred to this service.
- You can restore data from the Email Archive in several ways, including by restoring individual items.
- Data stored in the Email Archive is automatically deleted from the Email Archive after one (1) calendar year of such data being stored. You must purchase an available upgrade or change to another available Email Archive plan if you are seeking a longer period of time to retain data in the Email Archive.
- Any data stored as part of the Email Archive service will be deleted within ninety (90) days of the expiration of the Email Archive licence.
- Any upgrade you purchase for your Email Hosting service will require an appropriate upgrade to be purchased for your Email Archive service. Failure to purchase an appropriate upgrade may result in your Email Archive service being terminated or suspended. In the event of termination under this clause, please note that clause 36.2 continues to apply.
- We may provide the Email Archive service directly or via a third party. Third party services may be subject to specific agreements as supplied by them. By applying or using any service offered by us you must agree to this Agreement and any agreement or terms and conditions of our third party suppliers.
36.1.3 Further terms and conditions
- For the purposes of this clause 36.1.3, references to Email Archive service includes any related Data Import or Export service which we may supply from time to time.
- License. Subject to the terms of this Agreement, to the extent any APIs (including any data collection agent) or other software and services are provided to you in connection with the Email Archive service, and subject to the payment of all fees and charges applicable to the Email Archive service, any third party service supplier and we grant to you a revocable, non-exclusive, non-assignable, non-transferable, and non-sub-licensable limited right during the term of this Agreement to allow access to, download, install and use of, the Email Archive service, including any updates and/or modifications thereto ("Updates"), as applicable, solely for your internal use. If applicable, you shall be solely responsible for the installation and use of the Email Archive service, and any third party service provider shall have no obligation or responsibility with respect thereto. Any third party service provider and us reserve the right to modify or discontinue any feature or functionality of the Email Archive service, in whole or in part, at any time, provided that you are provided notice within a reasonable time prior to any modification or discontinuance that will affect your use of the Email Archive Service. You understand that the Email Archive service may be unavailable at times due to regularly scheduled maintenance.
We or any third party service provider may (but are not obligated to) periodically provide Updates, which must be installed by you for your continued use of the applicable Email Archive service. For clarity, any and all Updates shall be included in the definition of Email Archive service.
- Acceptable Use Policy. Your use of the Email Archive service is subject to your compliance with any third party service provider's acceptable use policy then in effect. As of November 2016, the third party service provider's acceptable use policy is as follows:
We or our third party service provider may suspend your Services without notice if it determines that you are in violation of this Policy.
You are independently responsible for complying with all applicable laws related to your use of the Email Archive services, regardless of the purpose of the use. We and our third party service provider encourage you to report violations to [email protected] You may be in violation of this Policy if we or any third party service provider of ours determines that you are intentionally using the Email Archive services to engage in unlawful or abusive behaviour, or encouraging others to engage in or foster such behaviour, including but not limited to:
- Breaching any applicable local, national or international law or regulation;
- generating or facilitating unsolicited bulk or commercial email in violation of the CAN- SPAM Act or any other laws and regulations applicable to bulk or commercial email, including but not limited to sending any communications to persons who indicate that they do not wish to receive them;
- violating or misappropriating the legal rights of others, including but not limited to privacy rights and intellectual property rights, or exposing trade secrets or other confidential information of others;
- intentionally distributing viruses, worms, Trojan horses, corrupted files, hoaxes, or other malicious software code;
- interfering with the use of the Services, or the equipment used to provide the Services, including but not limited to exceeding allowed bandwidth by transferring excess data, using any Email Archive services or system in a way that consumes a disproportionate share of the resources or otherwise interferes with the normal operation of the shared Email Archive services or system, or materially exceeding the average amount of data per mailbox or seat or the user storage amount;
- altering, disabling, interfering with, or circumventing any aspect of the Email Archive services, including but not limited to permitting or facilitating unauthorised access to the Email Archive services (whether through distribution of malicious software code or by any other means);
- probing, scanning, penetrating, reverse engineering any Email Archive service system, software or network (unless authorised in writing by us) or breaching security measures of our third party service providers or us;
- using the Email Archive services or equipment to publish, transmit (live or otherwise) or store any content or links to any content that is illegal; fraudulent or promoting or soliciting an illegal activity;
- using the Email Archive services, or a component of the Email Archive services, for any unlawful or fraudulent purpose; and
- using the Email Archive services in any manner not authorised by us, or in any manner that we or our third party service provider reasonably believes to be damaging to its reputation, business, system, network, or Services.
You shall not:
- reproduce, duplicate, copy or re-sell any part of our or our third party service provider's website in contravention of the provisions of our terms of website use; or access without our authority, interfere with, damage or disrupt:
Ownership of Email Archive service; Restrictions. We shall own all right, title and interest in the Email Archive service and any intellectual property rights incorporated therein.
- any part of our or our third party service provider's website;
- any equipment or network on which our or our third party service provider's website is stored;
- any software used in the provision of our or our third party service provider's website; or
- any equipment or network or software owned or used by any third party.
Except as expressly permitted, you agree that you shall not, and shall not permit any third party, to (i) modify, adapt, alter, translate, or create derivative works from the Email Archive service; (ii) merge the Email Archive service with other software; (iii) resell, or export except as provided herein, sell, provide for service bureau use, lease, rent, loan, or otherwise transfer the Email Archive service to any third party; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for Email Archive service; (v) remove or alter any copyright notices or other notices included in the Email Archive service; or (vi) otherwise use or copy the Email Archive service except as expressly permitted. Without limiting the foregoing, the restrictions on use of the Email Archive service set forth in this Section shall apply to any Email Archive service supplied to Provider and its licensors by its suppliers.
Indemnity. You shall defend, indemnify and hold Provider and its licensors and service providers harmless from any claim, suit, damages and expenses (including, but not limited to, attorneys' fees) arising out of (i) Your use of the Email Archive service; (ii) your failure to comply with all applicable laws, rules, and/or regulations regarding the Email Archive service; (iii) your failure to comply with the terms and conditions of this Agreement; or (iv) any negligent act or omission by you. Our third party service providers are an intended beneficiary of the foregoing indemnity provision.
Limitation of Liability. IN NO EVENT SHALL WE NOR ANY OF OUR SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF DATA, LOSS OF USE, OR LOSS OF ANTICIPATED PROFITS) RESULTING FROM EITHER THE EMAIL ARCHIVE SERVICE OR ANY SOFTWARE OR DOCUMENTATION RELATED THERETO, EVEN IF WE OR OUR SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY OR RESULTING FROM A PARTY'S GROSS NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. THE LIABILITY OF US AND OUR SERVICE PROVIDERS TO YOU OR ANY RELATED THIRD PARTY SHALL BE LIMITED TO THE LESSER OF ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER, OR THE AMOUNT YOU HAVE PAID US FOR THE EMAIL ARCHIVE SERVICE, OR ONE THOUSAND DOLLARS ($1,000).
Assignment. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. You shall not have the right to assign or otherwise transfer its rights or delegate its duties under this Agreement without the express written consent of us.
Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement. The prohibition on or unenforceability of any provision in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.
Force majeure. Neither us nor our service suppliers shall be liable to you for any loss, injury, delay, expenses or damages arising out of any cause or event not within its reasonable control including, but not limited to: riots, wars or hostilities between any nations; Acts of terrorism; Acts of God, fires, storms, floods or earthquakes; strikes, labour disputes, vendor delays, or shortages or curtailments of raw materials; labour, power or other utility services; governmental restrictions or trade disputes; manufacturing delays; or other contingencies.
Export control. You acknowledge that our third party's export of the Services is subject to regulation by the United States which prohibits export or diversion of the Services to certain countries. You shall not export, re-export, use or divert any of the Services, directly or indirectly, to or on behalf of (a) any country that is subject to U.S. economic sanctions administered by the US Department of the Treasury's Office of Foreign Assets Control ("OFAC"), including but not limited to Cuba, Iran, Sudan, Syria and North Korea; (b) the government of an OFAC-sanctioned country, wherever located; or (c) persons or entities identified as "Specially Designated Nationals" by OFAC, or entities that are owned or controlled by a Specially Designated National. You shall not distribute or supply the Services to, any person if you have reason to believe that such person intends to export, re-export or otherwise transfer the Services to, or use the Services in or for the benefit of, any of such OFAC-sanctioned countries, governments, persons, or entities. You shall not use, or supply the Services in connection with the commission of terrorist acts or the design, development, production, or use of nuclear, biological, or chemical weapons; missiles; or unmanned aerial vehicles. You shall not supply Services to any person or entity with knowledge or reason to know that any of the prohibited activities identified in this section are intended by such person or entity. You agree to seek written assurances of compliance with this Section as may from time to time be requested by our third party service provider. Without limiting the foregoing, you shall not commit any act which would, directly or indirectly, violate, or which may cause us or our third party service provider to violate, any United States or local law, regulation, treaty or agreement relating to the export or re-export of the Services. At its expense, you shall obtain any government consents, authorisations, or licenses required for you to exercise your rights and to discharge your obligations under this Agreement. Acknowledging that any data you may place on the Email Archive service may constitute an export of such data by you to one or more foreign jurisdictions, you shall not cause any such export of data in violation of the laws of the United States and/or such other foreign jurisdictions.
US Government Restricted Rights. Any software and documentation related the Email Archive Service are "commercial items" as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Absent a written agreement to the contrary, the U.S. Government's rights with respect to such software and documentation are limited by the terms of this Agreement, pursuant to U.S. Federal Acquisition Regulations §12.212(a) and/or Defense Federal Acquisition Regulations Supplement § 227.7202-1 through 227.7202-4, as applicable.
Termination for convenience. The Email Archive Service may be terminated by us, with or without cause, upon thirty (30) days' prior written notice to you pursuant to our agreement with any third party service provider.
Termination for cause. We may immediately suspend or terminate the Email Archive service, in whole or part, if we or our third party service provider become aware of or suspect any unlawful, improper, or unauthorised use of the Email Archive service, or any use of the Email Archive Service that we or our third party service provider reasonably determines in our/their discretion may be harmful to us, our service provider(s), other customers, or the Email Archive Service generally. Neither we nor our service providers shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other because of the act of termination or the expiration of the Email Archive service, in either case in a manner which complies with these terms. Upon any termination or expiration of the Email Archive service, you are required to contact us to discuss available data export options should you continue to require such data from the Email Archive service.
You expressly and irrevocably agree that:
- It is your responsibility to ensure that Services are utilised to their full potential;
- It is your responsibility to ensure the appropriateness and compatibility of Services that you are purchasing;
- You have ensured that Services that you are purchasing are appropriate and compatible to your needs prior to making the purchase;
- We are not obliged to provide refunds or account credit for any Service that is functional, as described, or of acceptable quality for the purpose which it is provided by us. We reserve the right, subject to these terms and our discretion, to offer you:
- An account credit; or
- A refund,
only in circumstances where a cancellation request has been filed within 72 hours, being the reasonable 'rejection period' of the purchase application being made.
- We may offer account credit to be applied to your account as a gesture of goodwill. Account credits can only be redeemed via purchase of any Service(s) available at our website.
- We may choose, on your request to downgrade an account however no refund or account credit will be applied if outside the 72 hour rejection period where we have determined that the Service provided is functional, as described, or of acceptable quality for the purpose for which it is provided;
- You are liable to pay any administrative costs incurred by us as a result of refunding any Service within the 72 hour rejection period;
- Deposit/Cheque order cancellations will result in a credit being applied to your account or result in a surcharge to be taken from the refunded amount offered;
- Direct Deposit overpayments will either be returned via full account credit or transaction reversal minus surcharge;
- Your request for refund will be denied where:
- Service on the claim has been used illegally or outside the terms of service;
- We believe you have breached your agreement with clause 36.1.1 in any way;
- We have sent communication to you, and we do not receive a response to our communication within 1 week of us sending such communication; or
- We believe the request is fraudulent.
- We take no responsibility for any mistakes in application either on the advice of our staff or your sole decision; and
- You are liable for the costs we incur (including legal costs on a full indemnity basis) if you make any claim in connection with or arising from Services, and you have breached your agreement with clause 36.2 of these terms in any way whatsoever at any time after indicating your agreement to these terms.
36.2.2 Process of claiming refund
In order to claim a refund or account credit, you undertake to clearly request a refund or account credit (and provide reasons for the request) via email to us within 72 hours from the date that the Service was provisioned as defined by the invoice creation date, or within 72 hours of the dispute occurring. You understand that it is your responsibility to ensure that we have received your email within this timeframe. Generally, a response will be sent to you within a fortnight of us receiving your request, but we may convey a response earlier. You also understand that your eligibility for refund or account credit is subject to clause 36.2.1 of this Agreement.
Account credits cannot be refunded or redeemed as cash credits under any circumstances. Account credits, whether purchased by you or provided to you as a gesture of goodwill, can only be redeemed via purchase of any Service(s) available at our website.
36.3 Suspension & cancellation
You expressly and irrevocably agree that we reserve the right to suspend/cancel any/all Service if:
- You have any outstanding invoice or account;
- Your account is in dispute or dispute resolutions procedure, court order, judgement, findings or determination;
- You fail to comply with any provision in this agreement or those referenced in this agreement;
- There is evidence of fraudulent, illegal, defamatory, offensive activities, or any activity in breach of a third party's rights;
- We deem your use of our services may jeopardise the operation of the service, us or our suppliers; or
- We deem any other reason as satisfactory to protect us, our staff and/or our suppliers.
Any suspension or cancellation is subject to clause 36.2.
If your account is cancelled under this agreement:
- You must pay all outstanding charges to us immediately;
- We may revoke/terminate any license issued to or by you in relations to the services as of the date of cancellation;
- We may immediately delete all data held prior to cancellation;
- We may perform any action without notice; and
- Any amounts paid by you in advance are forfeited upon the termination of your account.
We reserve the right to suspend or terminate your access to this Service, or take any further measures deemed necessary, at our sole discretion, at any time and without prior warning, as a means to ensure the integrity of the Service, us and the terms of this Agreement. Such suspension or termination or discretionary decision is done so without any liability to you given the following circumstances, including but not limited to;
- If you breach these terms;
- You or any person using your account, whether with consent or not, misuses the Service;
- Incorrect information given by you to us; or
- There are reasonable grounds for us to suspect any of the above.