TERMS AND CONDITIONS
Version 1.2 - Effective April 1, 2007
All Services provided by ServPure Incorporated, the corporate divisions of MailPure and NamePure; and/or any other of ServPure's divisions, are expressly subject to the terms and conditions set forth within this document and within the Acceptable Use Policy, and the use of such Services constitutes acceptance of those terms and conditions and agreement that same are legally binding upon and enforceable against any and all persons receiving and using the Services.
Section 1 - DEFINITIONS
(a) "Provider" means ServPure Incorporated; MailPure (a division of ServPure), NamePure (a division of ServPure); and/or any other of divisions of ServPure.
(b) "Customer" means the person or entity contracting for the Services of Provider under this Agreement.
(c) "Agreement" means this Service Agreement between Provider and Customer, and includes: the Invoice; these Terms and Conditions; and the Acceptable Use Policy; and, where such has been provided, the Declarations.
(d) "Invoice" means the Invoice from Provider to Customer for the Services provided pursuant to this Agreement.
(e) "Terms and Conditions" means the terms and provisions of the Agreement stated in this document.
(f) "Acceptable Use Policy" ("AUP") means and refers to the terms and conditions applicable to, and the limitations upon, the use of the Services by Customer stated in the Acceptable Use Policy document attached to this Agreement and as stated in the Acceptable Use Policy posted on Provider's website at the Legal Archive website address defined and described herein. The terms of the Acceptable Use Policy as and in the form and content posted on that website are controlling and binding upon Customer.
(g) "Services" means the particular services specified in the Invoice as being those provided to Customer by Provider.
(h) "Legal Archive" means http://www.servpure.com/legal.
Section 2 - GUARANTEED SERVICE LEVELS
Provider shall provide to Customer the guaranteed level of service as to the particular service or services contracted for by Customer under this Agreement as follows:
(a) Web Hosting Services: Provider guarantees a 99.9% up-time service level, which shall mean that Provider's server responds appropriately to HTTP requests for non-dynamic content, including error response when an error condition is present, and that such services are available for access over the Internet Excluded from this guarantee are customized configurations, due to the inherent complexity of such services, including, including scripting environments, database access, helper applications and other non-basic server functions. Provider shall not, however, be responsible for limitations of commercial software in use by Provider, and the functionality of such commercial software is provided on an "as-is" basis.
(b) E-mail hosting services: Provider guarantees a 99.9% up-time service level, which shall mean that Provider's server is processing E-mail, including operational SMTP, POP3 and IMAP services, and that such services are available for access over the Internet. Provider shall not, however, be responsible for limitations of commercial software in use by Provider, and the functionality of such commercial software is provided on an "as-is" basis.
(c) E-mail filtering services: Provider guarantees the following service levels: 99.9% System availability; 99.9% processing of E-mail within one (1) minute; and 99% processing of E-mail in 15 seconds or less. As to these service levels, system availability means that Provider's system is accepting E-mail and that such service is available for access over the Internet, and processing time means that period of time between the full arrival of E-mail on Provider's system and either the time when such E-mail is queued for delivery to Customer, or the time when such E-mail has been processed by Provider's system in a manner consistent with the filtering functions of that system. Provider shall not, however, be responsible for limitations of commercial software in use by Provider, and the functionality of such commercial software is provided on an "as-is" basis.
(d) Exclusions: Periods of unavailability of services which are excluded from the guaranteed service levels are the following:
(1) Scheduled Maintenance of Provider: Periods of unavailability of services due to scheduled maintenance of Provider's network and/or systems do not constitute interruptions of the service levels guaranteed in this Section. Scheduled maintenance includes, but is not limited to, the following: all ordinary and customary scheduled maintenance, which is performed on weekdays and non-holidays between 12:00 a.m. and 6:00 a.m. GMT-5:00 and on weekends and holidays between 10:00 p.m. and 6:00 a.m. GMT-5:00, and includes upgrading and patching of Provider's software and/or firmware, maintenance of hardware, and migration of service. Migration of service includes moving Customer's account and files among servers, moving Provider's facilities from one location to another, and other like activities. Customer is advised and is aware: that due to Web and DNS caching and other such mechanisms which can cause delay in propagation of changes which are beyond the control of Provider, Customer may experience limitation or absence of access for some or all service during such propagation, even though Provider's systems are fully functional; that spam and virus filtering and blocking services require frequent updating, both in real time and as maintenance, in order to properly manage existing threats; and that such changes are considered normal operations and delays or interruptions resulting therefrom and/or errors or inaccuracies in filtering are not deemed to constitute failure or interruption of service level to Customer under this Agreement.
(2) Limitations of Commercial Software: Provider makes reasonable efforts to ensure that non-proprietary commercial software in use in Provider's system and network is appropriate and suitable for such use, but cannot, as a practical matter, be aware in advance of all possible limitations or bugs in the functionality of such commercial software. Periods of unavailability of service due to limitations of commercial software in use in Provider's system and network do not constitute interruptions of service levels guaranteed in this Section.
(3) Causes External to Provider: Provider is only able to guarantee service levels free from interruptions occurring within Provider's own system and network and which are within the control of Provider. Periods of unavailability of services due to any and all interruptions and/or other events which are external to Provider's own system and network do not constitute interruptions of the service levels guaranteed in this Section.
(e) Customer Remedies: The remedies available to Customer in the event that Customer does not receive the service level guaranteed as stated above, are the following:
(1) Notice to Provider Required: For purposes of this guarantee, any period of interruption of service level shall be deemed to commence when Customer notifies Provider by reporting interruption of service to Provider by telephone at the number stated in the Invoice. Giving of this notice by Customer is a pre-condition upon Customer's right to the remedies provided below.
(2) Credit Allowance: For an interruption in service level exceeding that guaranteed to Customer as stated above, Customer, if the required notice of interruption has been given, may request and receive a credit allowance from Provider. For service interruptions of one (1) hour or more, credit will be allowed equal to one-sixth (1/6) day for each three hour period or interruption or fraction thereof; Provided that credit allowance shall not exceed one full day credit for any twenty-four (24) hour period. No refund will be given for interruption in service level, except in case of cancellation as provided below.
(3) Cancellation & Refund: If Provider does not provide to Customer the guaranteed service levels during two of any three consecutive calendar months during the term of this Agreement, then Customer may, at Customer's option, cancel this Agreement and the service(s) provided hereunder, and may then receive a pro-rated refund of the amount which has been paid by Customer to Provider for and on account of such services. Customer shall, as a required condition of Customer's right to this remedy, give written notice to Provider of Customer's exercise of this remedy not later than thirty (30) days from the last day of event giving rise to the right to exercise this remedy.
The remedies stated above are the sole and exclusive remedies available to Customer under this Section 2.
Section 3 - WARRANTIES
(a) Provider warrants that the Services specified in this Agreement will be provided to Customer at the Service Level stated in Section 2 hereof, subject to the limitations stated in that Section. The remedies provided in Section 2 for any inability or failure of Provider to provide the Services at said Service Level are exclusive of any and all other remedies, and are accepted by Customer as the sole and exclusive remedies of Customer.
(b) Provider warrants that its virus and spam filtering and blocking services will filter Customer's E-mail to eliminate spam and computer viruses; Provided, however, that Customer understands and acknowledges that Provider can not guarantee that all spam and all viruses will be eliminated, that some legitimate E-mail may be occasionally misdirected as spam, that some software errors, software "bugs" and/or human error may occasionally affect the performance of the Services, that not every Provider filtering practice can be the most effective in the industry at any given time and that the above warranty does not include any such promises.
Section 4 - DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATIONS
(a) Provider shall not be liable for any delay, failure in performance, loss or damage due to: fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism, acts of God, acts or omissions of Internet traffic carriers, acts or omissions of regulatory or governmental agencies, or other such causes beyond either party's reasonable control.
(b) EXCEPT AS OTHERWISE PROVIDED HEREUNDER, THE SERVICES PROVIDED BY PROVIDER HEREUNDER ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND TO CUSTOMER OR ANY THIRD PARTY INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, EFFORT TO ACHIEVE PURPOSE, QUALITY, ACCURACY; NON-INFRINGEMENT, AND QUIET ENJOYMENT. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY EFFORT BY PROVIDER TO MODIFY ITS SERVICES SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS, AND THAT ANY PROVIDER WARRANTIES AND REMEDIES PROVIDED HEREIN ARE EXCLUSIVE, SATISFACTORY AND SUFFICIENT, AND ARE ACCEPTED BY CUSTOMER AS THE SOLE REMEDIES AVAILABLE TO CUSTOMER UNDER THIS AGREEMENT.
(c) IN NO EVENT SHALL PROVIDER OR ITS SUPPLIERS AND/OR LICENSORS BE LIABLE TO CUSTOMER, WHETHER IN CONTRACT OR IN TORT, FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL LOSSES RESULTING, OR CLAIMED TO HAVE RESULTED FROM, ANY SERVICES PROVIDED BY PROVIDER UNDER THIS AGREEMENT, OR FROM INTERRUPTION OF SUCH SERVICES, INCLUDING, WITHOUT LIMITATION, LOSSES OR EXPENSES RELATING TO INTERRUPTION OF BUSINESS ACTIVITIES, OR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF PROVIDER WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PROVIDER'S TOTAL LIABILITY TO CUSTOMER FOR ANY CAUSE EXCEED THE SERVICE CHARGES ACTUALLY PAID BY CUSTOMER OVER THE 12 MONTH PERIOD PRECEDING ANY SUCH LOSS, DAMAGE OR EXPENSE; SUBJECT, HOWEVER, TO THE LIMITATIONS STATED IN SECTION 2(e) HEREOF.
(d) CUSTOMER UNDERSTANDS AND AGREES THAT PROVIDER IS ONLY ABLE TO PROVIDE AND TO GUARANTEE AND WARRANT SERVICES AND FUNCTIONS WHICH OCCUR WITHIN THE SYSTEM AND NETWORK OF PROVIDER AND ARE OTHERWISE WITHIN THE CONTROL OF PROVIDER. PROVIDER SHALL HAVE NO RESPONSIBILITY FOR, NOR ANY LIABILITY WHATSOEVER TO CUSTOMER ON ACCOUNT OF, ANY FAILURE, UNAVAILABILITY, OR INTERRUPTION OF SERVICES PROVIDED HEREUNDER WHICH ARE THE RESULT OF ANY CAUSE OR CONDITION WHATSOEVER WHICH IS EXTERNAL TO PROVIDER'S OWN SYSTEM AND NETWORK.
(e) THE TERMS AND PROVISIONS OF THIS AGREEMENT ARE THE COMPLETE EXPRESSION OF THE RESPONSIBILITIES AND OBLIGATIONS OF PROVIDER TO CUSTOMER. NO RESELLER OR OTHER THIRD PARTY HAS ANY RIGHT OR AUTHORITY TO EXTEND OR OTHERWISE ALTER SUCH RESPONSIBILITIES AND OBLIGATIONS, AND NO TERMS OR PROVISIONS OF ANY AGREEMENT BETWEEN CUSTOMER AND ANY SUCH RESELLER OR OTHER THIRD PARTY SHALL BE BINDING UPON OR ENFORCEABLE AGAINST PROVIDER, UNLESS EXPRESSLY PROVIDED OTHERWISE HEREIN.
(f) Customer agrees to indemnify and hold Provider harmless from any liability, cost, damage or expense attributable to the negligence of Customer, or to any misuse of the Services by Customer, or to the failure of Customer to fulfill its responsibilities under this Agreement. In event of any such claim or demand Provider agrees to promptly notify Customer of the claim or demand and allow Customer to control the defense or reasonably settle such claim or demand provided that Provider or its Services are not adversely affected by such control or settlement.
Section 5 - RESPONSIBILITIES OF CUSTOMER
(a) Customer is responsible for maintaining a copy of all data of Customer which may be processed through Provider's system at all times during the term of this Agreement, and it is Customer's sole responsibility to secure access such copy of data.
(b) Customer is responsible for monitoring the Services provided to Customer by Provider pursuant to this Agreement, and is further responsible for alerting and notifying Provider on any problems experienced by Customer with respect to the Services.
(c) Customer is responsible for maintaining all dependent services associated with services of Provider, including, without limitation of the generality of the foregoing, Customer's own DNS, domain name registration, mail server, and like dependent services.
(d) Customer acknowledges that Customer is aware of Provider's most current Acceptable Use Policy and that Customer shall comply with all provisions of the most current Acceptable Use Policy, posted as stated above.
(e) Customer understands and agrees that Customer is solely responsible for Customer's activities in using the Services, including the activities of Customer's employees, contractors and all Parties that Customer allows to have access to the Services provided by Provider.
(f) Customer acknowledges and agrees that Customer does not have, and shall not hold itself out as having, any right, power, or authority to create any contract or obligation, express or implied, or to make any warranties or representations, on behalf of Provider.
(g) Customer acknowledges and agrees that Customer shall not commit any act which will prejudice technology owned by Provider or under license to Provider, including, without limitation, all copyrights, know-how, trade secrets, patents, processes, software and other proprietary rights, and all proprietary, trademark or copyright markings thereon throughout the world.
(h) Customer acknowledges that Provider is a licensee of and/or is the sole owner of, its Services, including all copyrights, technology, documentation, know-how, trade secrets, patents, data logs, performance statistics and other proprietary rights, and all proprietary, trademark or copyright markings thereon throughout the world. Customer shall not do anything or commit any act which might prejudice or adversely affect the validity of such license or ownership of Provider.
(i) Customer is responsible for sending Provider a written request not to renew Services to Customer pursuant to this Agreement, if such Services automatically renew at the end of any Service period under this Agreement.
Section 6 - CHARGES AND BILLING
(a) Charges for Domain Name Registrations and SSL Certificates are due before the renewal date and according to the terms of the registrar involved. Non-payment will result in the expiration of a domain name registration or SSL certificate as of the renewal date, and expired domains may be registered by others when they expire and may not be retrievable. It is Customer's responsibility to contact Provider with any concerns, and ultimately it is Customer's responsibility to maintain Customer's registrations, whether resold through Provider or through a third-party. Provider only resells Domain Name Registrations and SSL Certificates, and these services have terms and conditions specified by the third-party service provider, are posted on the third-party service provider's website, and such terms and conditions are controlling and binding upon Customer.
(b) Customer will be charged for E-mail & Hosting services at the rates and for the terms specified for each such service in the Invoice of this Agreement. Customer agrees to be committed to the entire period of the term for each such service stated in the Invoice and is obligated to pay the rate charged for that entire period and for any renewal or extension thereof. If the Services commence during a month, the charges for that partial month will be pro-rated accordingly. Provider will invoice Customer for such Services not less than 15 calendar days before the charges for such Services become due. The charges stated in the invoice must be paid in full on or before the due date.
(c) Any balance remaining unpaid after the due date of same shall bear interest at the rate of 1.5% per month until paid in full. Provider shall be entitled to recover from Customer the costs and expenses of collection of amounts due to Provider hereunder.
(d) Customer is responsible for the payment of any and all sales, use, excise, property or other taxes, fees or assessment which may be applicable to the services.
(e) In the event that Customer is billed for any or all of Provider's services through an agreement with a reseller containing provisions as to charges and billing specific to such services, such provisions shall be controlling, except as to Provider's charge for the Services, as to which Provider's charges govern.
Section 7 - SUSPENSION, TERMINATION, CANCELLATION
(a) Provider reserves the right to suspend or terminate performance under this Agreement and discontinue providing Services to Customer in the event of the occurrence of any one or more of the following:
(1) Payment in full of any invoice is more than 30 days past due. Provider will notify Customer, by E-mail to the Administrative Contact of Customer on record with Provider and/or by postal mail to Customer's billing address stated in the Invoice, 7 days prior to such a suspension or termination;
(2) Customer engages in any conduct, act or omission which threatens the ability of Provider to perform it's services, or circumstances arise with respect to Customer, whether or not be under direct control of Customer, which threaten ability of Provider to perform it's services;
(3) Customer materially breaches one or more of the other terms of this Agreement;
(4) Customer materially fails to comply with Provider's Acceptable Use Policy.
(b) Customer reserves the right to cancel this Agreement in the event that bankruptcy, insolvency, liquidation or other similar proceedings are commenced by or against Provider and is not discharged or dismissed within sixty (60) days after commencement.
(c) Following termination of this Agreement for any reason, Provider shall have the right to be immediately paid for all accrued charges due and owing by Customer to Provider. In the case of termination by Provider, Provider may, at Provider's sole option and election, provide a refund of all or part of any amount paid to Provider by Customer; otherwise, no right to refund is provided. Following termination of this Agreement, Customer shall remain obligated to Provider and shall pay any and all fees, charges, expenses or damages provided elsewhere in this Agreement.
(d) In the event that Customer cancels, or attempts to cancel, Provider's services prior to the end of the period of the term specified for such services, Provider shall have no obligation to refund all, or any portion of, the charges paid by Customer for such services. In the event that any service to Customer is suspended or terminated by Provider for a material breach of this Agreement or of the Acceptable Use Policy, Customer shall not be entitled to any refund of charges paid for such service.
(e) Provider will grant a refund to Customer in the event that Provider is compelled to suspend Customer's service for a period greater than 7 continuous days which is not caused by the conduct, acts or omission of Customer, in which event, the amount of refund will be equivalent to that pro-rated amount of the total charge which the period of such suspension bears to the total period of term of that service.
Section 8 - BINDING EFFECT
All Parties receiving and using the Services of Provider, by accepting such Services, agree to be bound by all of the terms and conditions of the Terms and Conditions and of the Acceptable Use Policy, excepting, as to the customers of a reseller of the Services, those terms appearing specifically to the Invoice, and all such parties understand and agree that said terms and conditions are enforceable by Provider with respect to them, and each of them, whether or not such parties are specifically named in the Invoice.
Section 9 - GENERAL PROVISIONS
(a) Customer understands and agrees that Provider reserves the right to amend the Terms and Conditions of this Agreement from time to time, and that the Terms and Conditions, as same are published by Provider in the Legal Archives at the website address stated in Section 1(h) hereof, shall be in force and effect and shall be controlling and binding upon Customer.
(b) Provider reserves the right to modify the features and functionality of the Services, at no additional cost to Customer, with the objective of providing Customer with equivalent or enhanced services.
(c) This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to its conflict of law rules. Customer understands and agrees that the courts of the State of New York, County of Albany, shall have exclusive jurisdiction over any and all court proceedings arising out of this Agreement, and that Provider shall have the right to bring suit against Customer for any amounts due Provider from Customer in any such courts.
(d) In the event of litigation arising under this Agreement, each party shall bear such party's own costs and attorney's fees.
(e) The failure of either party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision or any related right or provision, unless such a waiver is acknowledged and agreed to by such party in writing.
(f) Notices to Provider shall be sent to: Manager of Operations, ServPure Incorporated, P.O Box 9336, Niskayuna, NY 12309. Notices to Customer shall be sent to the address of Customer stated on in the Invoice of this Agreement unless Customer has notified Provider in writing of a change in Customer's address.
(g) If any of the provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the Parties so far as they can be consistent with law and remain commercially practical with the other provisions remaining in full force and effect.
(h) This Agreement, as same is defined above, constitutes the entire Agreement between the Parties with respect to the subject matter hereof, and may only be changed, modified or amended by a written document signed by both Parties.