MessageWire LLC - Terms of Service ("TOS")
This agreement encompasses all products and services provided by MessageWire LLC ("MessageWire"), it's affiliates, partners, employees and successors to its customer who sign an Order for MessageWire services ("you" or "Customer"). By subscribing to MessageWire's services, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
1. General
MessageWire agrees to provide services as found on its web site at http://www.messagewire.com or in this agreement to the best of its abilities. Customer will complete a subscription for service ("Service Order") either via the MessageWire online store found at https://store.messagewire.com or a written Service Order submitted to MessageWire via email to Orders@MessageWire.com
2. Term
The initial service term of the Agreement shall begin on the date that MessageWire generates an email message to Customer announcing the activation of the Customer's Service Order (the "Service Commencement Date") and shall continue for the number of months stated in the order ("Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew the same length as the Initial Term ("Renewal Term") and will renew upon expiration of the Renewal Term until Customer requests cancellation. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the ("Term").
3. Refund and Cancellation Policy
If Customer purchases a service that includes a 30-day trial, Customer is allowed to make full use of the service for 30 consecutive calendar days ("Trial Period") after signup. If Customer decides to cancel the service for any reason, Customer must complete in its entirety, the MessageWire online cancellation form found at https://www.messagewire.com/cancellation ("Cancellation Form") to submit a cancellation of services ("Service Cancellation"). Once MessageWire receives the completed form, MessageWire will cancel the service within two business days. If Customer has purchased a service that includes a Trial Period, Customer may request a refund provided that request is made within the Trial Period. MessageWire does NOT refund fees collected for setup costs, licensing costs or hardware costs. If Customer has purchased a service that DOES NOT include a Trial Period, refund requests will NOT be honored.
Unless otherwise specified for the subscribed service, Customer is allowed to cancel subscribed service at any time. Cancellation requests must be made using the Cancellation Form a minimum of 30 days in advance of the renewal date for the subscribed service. Cancellation requests made less than 30 days in advanced of the renewal date for the subscribed will incur a charge to the Customer account for the following Term.
4. Mail Services
Subject to the terms of this Agreement, and contingent on Customer's satisfaction of MessageWire's credit approval requirements, MessageWire agrees to provide the services described in the Service Order for the fees stated in the Service Order.
4.1 Administration - MessageWire will provision the Customer's initial email environment and the Customer will otherwise be responsible for administration of the Service, including adding, editing and deleting mailboxes, adding and managing wireless or other service related addons, adding storage capacity, managing settings, and configuring antispam filters.
4.2 Support - MessageWire will provide support to the designated contacts on the Customer account. MessageWire will not provide support to any Customer end users.
4.3 Security - MessageWire agrees that during the Term, MessageWire will make all commercially acceptable efforts to secure the MessageWire network and server infrastructure. The MessageWire security practices include:
4.3-A Access to Physical Location - The MessageWire local network and server infrastructure are located in a controlled access data facility ("Facility") operated by MessageWire employees and/or MessageWire affiliates. Access to the Facility is limited to MessageWire employees and its affiliate agents for the purpose of maintenance and providing service to the Customer. MessageWire may provide access to a third party for the purpose of auditing or general Facility maintenance, provided that third parties are escorted at all times by a MessageWire or MessageWire affiliate employee. The Facility will remain staffed 24 hours a day, 7 days a week, 365 days a year and entrance to the Facility is authorized by proximity-based access cards.
4.3-B Access to Local Network and Server Infrastructure - The MessageWire local network and server infrastructure is protected by hardware firewalls.
4.3-C Access to Customer Information - MessageWire restricts access to customer accounts to MessageWire employees and other agents who require access in order to provide service to the Customer. MessageWire employees and agents are required to login to MessageWire customer management systems through secure a interface with a username and password.
4.4 Uptime Service Level Agreement - MessageWire provides a 99.9% power and network uptime service level agreement ("SLA") per month ("Monthly Uptime"), excluding downtime due to scheduled maintenance. MessageWire considers downtime to exist when Customer is unable to send and receive mail as a result of a failure of the MessageWire network. MessageWire DOES NOT consider downtime to exist if Customer is unable to use mail service as a result of a failure outside of the MessageWire network, such as Customer connection to the Internet or other internet connectivity beyond the control of MessageWire. Maintenance is scheduled regularly every Saturday and Sunday morning from 12:00AM - 4:00AM Eastern time. While MessageWire does not intend to make use of every scheduled maintenance window, MessageWire will announce any scheduled maintenance that is expected to result in downtime at least 48 hours prior to the scheduled maintenance window. In the event of an unscheduled downtime where power and/or network uptime drops below the Monthly Uptime, Customer may request a 10% credit for each 0.1% period below the Monthly Uptime, in the amount equal to or equivalent to the current calendar month fees for the current Term. Credits are calculated by dividing fees for the current Term by the number of months in the current term and multiplying by the percentage down in 0.1% increments below 99.9% up to a maximum credit of 50%. Credits are issued on the following Renewal Term.
5. Service Limitations
5.1 Email Filtering - MessageWire provides certain services designed to filter unwanted email. Customer acknowledges that use of MessageWire email filtering services will likely result in the capture of some legitimate email and the failure to capture some unwanted email that may contain spam, phishing scams and email infected with viruses. MessageWire recommends that the Customer implement additional levels of protection in the form of desktop virus scanning and desktop and/or network firewalls. Email that is captured by any MessageWire filtering system is not subject to the MessageWire SLA.
5.2 Email Size Limitations - Email messages that exceed the storage and/or transfer size limits may be permanently lost. The Customer is responsible for monitoring and managing the size of individual mailboxes within the Customer's account from the Customer control panel. MessageWire has a per message size restriction of 50MB.
5.3 Delivery Failure - MessageWire employs commercially reasonable efforts to provide successful delivery of email messages. MessageWire cannot guarantee delivery of messages and Customer agrees that MessageWire email filtering devices and/or circumstances outside of the control of MessageWire may prevent successful delivery of messages.
5.4 Backups - MessageWire performs snapshot backups of its server infrastructure. Backups may not contain every item that is sent, received or stored within the MessageWire server infrastructure. Backups will only capture data that is available during the time of the backup. Data on the backups may only be available for a limited period of time.
6. Add-on Services
The following conditions apply if the Customer chooses to purchase any of the add-on services described below.
6.1 Migration - At the request of the Customer, MessageWire shall provide reasonable estimate of fees for migration of message data based on information provided to MessageWire by the Customer. Customer acknowledges that the fees for migration will be estimated by the number of mailboxes to migrate as well as the amount of the data to be migrated. Customer agrees that during the course of the migration services, MessageWire may discover technical limitations which prevent successfully completing the migration of the Customer data. Customer acknowledges that there is inherent risk involved in migration that could result in the loss of data. Customer agrees to create a full backup of all data to be migrated before MessageWire begins migration. Customer agrees that MessageWire is not liable for damages resulting from the loss or corruption of data as part of migration.
6.2 Domain Names - If Customer registers, transfers and/or renews any domain through MessageWire, MessageWire will submit the request to Enom, Inc. ("Registrar") on behalf of the customer. MessageWire only accepts responsibility to submit the request to the Registrar and is not responsible for any errors, omissions or failures by the Registrar. Customer agrees to be responsible for cancellation of account with any prior registrar and any future inquiries with the Registrar including domain name renewals, transfers, updates or any other domain related activity pertaining to the maintenance and/or ownership of the customer domain. Customer's use of the domain name service is bound by the legal terms of the Registrar found at http://www.enom.com/terms
6.3 Email Archiving/Archiving Services - MessageWire provides long-term email archiving services as an add-on service for an additional fee. MessageWire makes all commercially reasonable efforts to maintain the integrity and protection of the email archive. Customer agrees that while the nature of the MessageWire email archiving software is to archive all messages that are received and sent to and from an email archiving subscribed mailbox, MessageWire is not liable for damages resulting from the non-existence and/or inability of the Customer to locate email in the archive.
7. Fees
Fees are payable in advance on the first day of each Term. Customer's Term shall either be one (1) month, six (6) months, twelve (12) months or twenty-four (24) months as indicated on the Service Order, beginning on the Service Commencement Date. MessageWire may require payment for the Initial Term prior to the Service Commencement Date. If the Service Order provides for credit/debit card billing, Customer authorizes MessageWire to charge subsequent fees to the credit/debit card on or after the first day of each Term during the Term of this Agreement; otherwise MessageWire will invoice Customer via electronic mail to the primary customer email contact listed on the Service Order. Invoiced fees may be issued on or before the 1st day of each Term, and the fees shall be due on the 10th day following invoice date ("Invoice Due Date"), but in no event earlier than the first day of each Term.
Payments must be made in United States dollars. Customer is responsible for providing MessageWire with changes to billing information (such as credit card expiration, change in billing address). At its option, MessageWire may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law. MessageWire may suspend all Customer services without notice if payment for the service is overdue. Service interrupted for nonpayment is subject to a $35.00 reconnection fee. Fees not disputed within sixty (60) days of due date are conclusively deemed accurate. Customer agrees to pay MessageWire's reasonable reinstatement fee following a suspension of service for nonpayment, and to pay MessageWire's reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs. If Customer account is submitted to a collection agency for collection of an overdue service, Customer agrees to pay a $100.00 "Processing and Collection" Fee.
8. Taxes
At MessageWire's request, Customer shall remit to MessageWire all sales, VAT or similar tax imposed on the provision of the services (but not in the nature of an income tax on MessageWire), regardless of whether MessageWire fails to collect the tax at the time the related services are provided.
9. Changes
Upon ninety (90) days or greater written notice prior to the end of the Term, MessageWire may change fees payable under this agreement and if Customer does not submit a Cancellation of Service, the Customer shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms (unless the fees are increased in the same manner for a subsequent Renewal Term).
10. Obligation to Pay
On or after the Service Commencement Date, MessageWire allocates resources for the Customer and during the Term, Customer must pay all associated fees for the service, even if the Customer is not making use of the service.
11. Requests for Customer Information
Customer agrees that MessageWire may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer's customers or end users that MessageWire believes violates applicable law, and (ii) provide any information that it has about Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency or in response to a formal request in a civil action that on its face meets the requirements for such a request.
12. Notices
Notices to MessageWire under the Agreement shall be given via electronic mail to the email address posted for customer notices at http://www.messagewire.com/contact. Notices to Customer shall be given via electronic mail to the individual listed as the Primary Customer Contact on the Service Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address via electronic mail to Billing@MessageWire.com in accordance with this Section.
13. Force Majeure
MessageWire shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond MessageWire's control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
14. Law/Acceptable Use Policy
Customer agrees to use the service in compliance with applicable law and MessageWire's Acceptable Use Policy posted at https://www.messagewire.com/aup (the "AUP"), which is hereby incorporated by reference in this Agreement. Customer agrees that MessageWire may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on Customer's use of the Services without notice to the Customer. Customer agrees to cooperate with MessageWire's reasonable investigation of any suspected violation of the AUP. In the event of a dispute between MessageWire and Customer regarding the interpretation of the AUP, MessageWire's commercially reasonable interpretation of the AUP shall govern.
15. Indemnification
Customer agrees to indemnify and hold harmless MessageWire, it's affiliates, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorneys fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of Customer's services in violation of applicable law or the AUP by Customer or any person using Customer's log on information, regardless of whether such person has been authorized to use the services by Customer.
16. Disclaimer of Warranties
MessageWire DOES NOT WARRANT OR REPRESENT THAT THE SERVICES WILL BE UNINTERRUPTED, ERRORFREE, OR COMPLETELY SECURE. TO THE EXTENT PERMITTED BY APPLICABLE LAW MessageWire DISCLAIMS ANY AND ALL WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL SERVICES ARE PROVIDED ON AN "AS IS" BASIS.
17. Limitation of Damages
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF MessageWire AND ANY OF ITS EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAYABLE BY CUSTOMER FOR THREE MONTHS OF SERVICE.
18. Governing Law/Disputes
The Agreement shall be governed by the laws of the State of New Jersey, 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.
19. Intellectual Property
The Agreement shall be governed by the laws of the State of New Jersey, 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.
Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its name, trademarks, service marks, trade secrets, inventions, copyrights, materials, data and other intellectual property. Neither party may use or allow access to any unauthorized personnel, the other party's name, trade mark, service marks, trade secrets, inventions, copyrights, materials, data or other intellectual property without the other party's prior written consent. MessageWire shall make no claim of ownership of data transferred to Customer's server space as provided by MessageWire unless the data is believed to be the owned by MessageWire, its affiliates, vendors, employees, other customers or agents.
20. Miscellaneous
The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority. This Agreement may be amended only by a formal written agreement signed by both parties. The terms on Customer's purchase order or other business forms are not binding on MessageWire unless they are expressly incorporated into a formal written agreement signed by both parties. A party's failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party's rights with respect to that provision or any other provision of the Agreement. A party's waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement. Customer may not transfer the Agreement without MessageWire's prior written consent. MessageWire's approval for assignment is contingent on the assignee meeting MessageWire's credit approval criteria. MessageWire may assign the Agreement in whole or in part.
This Agreement together with the Service Order, AUP and SLA constitute the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior understanding or communication, written or oral.
