This Terms of Service Agreement ( this “Agreement”) sets forth the terms and conditions for use of the PoliteMail Software and applies to all PoliteMail online services and software, including beta and pre-release services, updates, upgrades, support and documentation made available to you in the course of your using the service (collectively the “Service”).
Please read this Terms of Service Agreement carefully. BY SUBSCRIBING TO AND/OR USING THIE SERVICE, YOU AGREE TO BE BOUND BY THIS AGREEMENT, including any modifications made from time to time. If you do not agree to the terms and conditions set forth herein, you may not subscribe to or use the Service.
The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein. By using the Service offered by PoliteMail, You make the following representations and warranties. PoliteMail shall have the right to terminate Your Account, without notice at any time, if any representation warranty made by You proves to be untrue in any respect.
You represent and warrant that:
1. DEFINITIONS “Account” refers to the billing account for the Service. All named Users linked to a single Account will be aggregated prior to determining the charge for the Services.
“Beta” is pre-release or other non-publicly available Software or Services. “Contact” is a name, email and other information (such as address and phone number) stored by the User within the Service. “Customer Data” means the data concerning the characteristics and activities of visitors to your website that is collected through use of the Service and then forwarded to the Servers. “Documentation” means any accompanying proprietary documentation made available to You by PoliteMail for use with the Service, including any documentation available online or otherwise. “Email” is one or more authentic business (not free services such as Yahoo or Hotmail) email addresses that you own. "Local Send" is the transmission of an email message through your own email server. "Remote Send" is the transmission of an email message through a PoliteMail email server provided as a service. “Mailing List” is a group of contacts and their email addresses. “Mailing” is a Send to a Mailing List. “Reports” are collections of data in summary or detail output from or displayed by the Software or Service. “Send” and “Sent” are the transmission of an email message and may be used as a unit of measurement for utilization of the Service. “Servers” are the computer servers controlled by PoliteMail or its contractors upon which the services are provided and Customer Data are stored. “Software” means the proprietary PoliteMail Software and any all upgrades to such. This includes the software licensed under the EULA and installed on the User´s local system and all internet-based software provided as a service and licensed under Section 3 of this Agreement.
“Subscription Fee” means the monthly amount you are required to pay for your Subscription to the Service. “SPAM” is defined as Unsolicited Commercial Email (UCE) or Unsolicited Bulk Email (UBE), or as any email message the recipient considers unsolicited and of a commercial nature. “Tracked Message” is the transmission of an email message with corresponding tracking codes embedded using the Services, and may be used a unit of measurement for utilization of the Service.
"Trial" is a limited time or limited quantity offer to use and evaluate the Service and Software. This may include pre-release and or beta version Software and Services. “You,” “Your” and “User” means You, Your company, Your employees, any authorized Users and anyone who has access to use Your Account. You must be at least eighteen (18) years of age to register for and use the Software and Services. “Website” is one or more internet domains that you own and operate.
2. PROVISION OF SERVICES PoliteMail agrees to provide Services to You in accordance with this Agreement in return for your payment for PoliteMail´s Software and Services, or for your participation in trial period offers, and your compliance with this Agreement. Provision of services shall commence once PoliteMail has received your registration and payment, if required, for services and your consent to this Agreement. Service Subscriptions. You must select one of the Service offers and sign up for a service plan before you can use the Service. The Service to which you subscribe will begin after PoliteMail receives and processes all of the information requested in the sign up process. You represent and warrant to PoliteMail that the information you provide in the sign up process for the Service is true and accurate. Authorized Users. Only You or those individuals that You or Your Administrator designates as an authorized Users are licensed to access or use the Service. Only Users who have administrator privileges may add additional authorized Users to the Service up to and including the total number of user licenses purchased during the Service offer for which You subscribed. User licenses cannot be shared or used by more than one individual authorized User and cannot be reassigned to a new User to replace a current authorized User who has terminated employment or otherwise changed job status or function and no longer uses the Service. However, administrator User who has administrator privileges may delete an authorized User from the Service and add a new authorized User to the Service to replace the former authorized User.
3. ACCEPTABLE USE POLICY This Acceptable Use Policy shall apply to Your use of the Software and Services. PoliteMail does not monitor or censor the information you make available, send, collect or store using the Service, with the exception of systems and network resources monitoring. However, PoliteMail will act upon policy violations when such are discovered during regular monitoring processes or reported to PoliteMail.
PoliteMail reserves the right in its sole discretion to: Revise this Acceptable Use Policy, which shall be posted at www.politemail.com/tos (or such other URL PoliteMail may provide from time to time); and Remove any content for any reason, including but not limited to, your violation of any conditions of this Acceptable Use Policy. PoliteMail´s right to remove inappropriate content under this Acceptable Use Policy shall not place an obligation on PoliteMail to monitor or exert editorial control over the content of your Account.
As consideration for PoliteMail´s provision of Services, You agree to abide by the following provisions relating to the acceptable use of your Account.
How You May Use the Service You may use the Service only for your internal business purposes. All rights not expressly granted to You under this Agreement are reserved by PoliteMail and its licensors. Unless applicable law gives You more rights despite this limitation, You may use the Service only as expressly permitted in this Agreement. In using the Service, You will:
How You May Not Use the ServiceYou agree NOT to use or allow access Services to:
4. SOFTWARE AND LICENSING
Use. If You receive software from PoliteMail as part of the Service, your use of that software is under the terms of the license presented to You for acceptance upon installation of the software. If there is no license presented to You, then PoliteMail grants You the right to use the software only for the use of the Service authorized under this Agreement and only on that number of users stated in your Service offer. PoliteMail reserves all other rights to the software. Your right to use the software ends when your right to use the Service terminates or expires or when PoliteMail updates the Service and it no longer supports the software. You must promptly uninstall the software when your right to use it ends. We may disable the software after the date the Service ends. Update. We may automatically check your version of the software. We may automatically download upgrades to the software to your computer to update, enhance and further develop the Service. Scope of License. Copyright and other intellectual property laws and treaties protect the software. The software is licensed, not sold. This Agreement only gives you some rights to use the software. PoliteMail reserves all other rights. You will not disassemble, decompile, or reverse engineer any software included in the Service, except and only to the extent that the law expressly permits this activity. Export Laws. The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use.
This license will terminate immediately if You fail to comply with the terms of this Agreement. Upon such PoliteMail reserves the right to deny in its sole discretion any User access to the Service or any portion thereof without notice.
5. TERM, TERMS AND FEES
Monthly and Annual Subscriptions. For monthly and annual subscription plans, the acceptance and term of this Agreement shall begin on the date of your initial payment (or date of initial use, for trial or beta services) and continue until the end of the subscription term.
Pay-As-You-Go Plans. Pay-as-you-go service plans operate on a per Send basis with the pre-paid purchase of a packaged quantity of Send Credits. Send Credits are consumed on a per message, per recipient basis. The acceptance and term of this Agreement shall begin on the date of your initial payment (or date of initial use for trial or beta services). The term of this Agreement may be extended by the purchase of additional Send Credits at then applicable rates.
Annual Term Licensing. Annual term licenses provide you with a license to use the software for the term. License includes any updates or upgrades made publically operate on a per Send basis with the pre-paid purchase of a packaged quantity of Send Credits. Send Credits are consumed on a per message, per recipient basis. The acceptance and term of this Agreement shall begin on the date of your initial payment (or date of initial use for trial or beta services). The term of this Agreement may be extended by the purchase of additional Send Credits at then applicable rates.
Trial Offers. You may receive a limited time or limited quantity of free Service for a trial period. Unless otherwise explained in the trial offer, You must cancel the Service by the end of the trial period to avoid incurring charges. If You do not cancel your Service by the end of the trial period, and we have informed You that the Service will automatically be converted into a paid subscription at the end of the trial period, then You authorize us to charge your payment method for the Service.
Payment. When You sign up for the Service and Software, You may provide a payment method. You confirm that You are authorized to use the payment method. You authorize us to charge You for the Service using your payment method and for any paid feature of the Service for which You choose to sign up or use while this Agreement is in force. If the amount to be charged to your payment method is greater than the amount You pre-authorized, we will inform You of the amount before we apply charges to your payment method.
Updates to your Billing Account. You must keep all information in your billing account accurate and current, including your billing address and any expiration date for your payment method. You can access and make changes to your billing information within the Account Administration section of the Service. If You tell us to stop using your current payment method but You do not provide an alternative payment method, we will cancel your Service. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request.
Service Changes, Adding/Removing Users. You may be able to switch your current Service to a different Service offering, and increase or decrease the number of users of the Service within the Account Administration section of the Service. If You do, You authorize us to charge your payment method for any new Service charges. We are not required to refund any unused portion of any service fees you previously paid for. You may switch from a subscription service to a pay-as-you-go service plan, or vice-versa, only once during a twelve (12) month period.
Refunds. All Services charges are non-refundable unless expressly stated otherwise, or otherwise provided by law. The costs of any returns will be at your expense, unless otherwise provided by law.
Payments to You. To receive a payment, such as a refund, You must promptly provide us with all information we need to make the payment (for example, bank account information for receiving the payment). You must provide us with the information we request before your right to receive payment accrues. You are responsible for the accuracy of the information You provide and any taxes you may incur as a result of receiving a payment. If You receive a payment that was not due to You, we may reverse or seek return of the payment, and You agree to cooperate with us.
Online Statement; Errors. We will provide You only an electronic, online billing statement. Receipts and statements shall be delivered via email, and may be available online. If You ask us to mail a copy to You, we may charge You a retrieval fee. We can only provide a paper copy that covers the 90 days prior to your request. If we make an error on your bill, we will correct it promptly after You tell us and we investigate the charge. You must tell us within 90 days after an error first appears on your bill. If You do not tell us within this time, we will not be required to correct the error. Unless otherwise prohibited by law, You release us from all liability and claims of loss resulting from any error that You do not report to us within 90 days after the error first appears on your online statement. If You do not tell us within this time, we will not be required to correct the error.
Late Payments. Except to the extent prohibited by law, we may assess a late charge if You do not pay on time regardless of any disputes You may have raised about your bill. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1% of the unpaid amount each month or the maximum rate that is permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts. These costs may include reasonable attorneys’ fees and other legal fees and costs. We may suspend or cancel your Service if You do not pay in full and on time.
6. CANCELLATION AND TERMINATION
By PoliteMail. PoliteMail may terminate your Service at any time by providing written or electronic notice of termination to You no less than thirty (30) days prior to service termination We may change the Service at any time and for any reason without notice. We may cancel or suspend a component or portion of your Service at any time and for any reason without notice. If You violate the terms of this Agreement, We may cancel your Service without notice. If We do, your right to use the Service stops immediately. Cancellation of the Service will not change your obligation to pay any charges due on your billing Account for your current subscription period. If We cancel the Service without cause, We will refund the unused portion of your Service charge for that period on a pro rata basis.
If PoliteMail does not receive payment for any charge to your Account, You will be in default and PoliteMail may immediately suspend or terminate your Account for cause and/or prevent your access to any or all PoliteMail Services. If your payment provider seeks return of payments previously made to PoliteMail, but PoliteMail in good faith believes that You are liable for the charge and applicable law allows the payment provider to seek payment from You, You also will be in default and PoliteMail may terminate your Account for cause and/or prevent your access to any or all Services. SUSPENSION OR TERMINATION FOR DEFAULT MAY BE MADE WITHOUT PRIOR NOTICE TO YOU AND UPON SUCH SUSPENSION OR TERMINATION PoliteMail MAY STOP DELIVERY OF ANY SERVICES TO YOU AND PREVENT ACCESS TO ANY CUSTOMER DATA STORED BY THE SERVICE.
By You. You may cancel your Service at any time for any reason by using the cancellation procedure available within the Account Administration section of the Service. Please review the PoliteMail cancellation policy at http://www.politemail.com/guarantee, for specific details. Certain terms of which are incorporated herein by reference. Certain Service offers may require cancellation charges, and You will pay all cancellation charges as specified in the materials describing the offer. Cancellation of the Service by You will not change your obligation to pay any charges to your billing account for your current subscription period.
Data. Upon termination or cancellation of the Service by You or us for any reason, PoliteMail may delete your data permanently from our servers after a period of 30 days. You are responsible for taking the necessary steps to back up and/or export your data prior to cancellation and ensuring that You maintain your primary means of business.
Waiver of rights and obligations. To the extent necessary to implement the termination of this Agreement, each party waives any right and obligation under any applicable law or regulation to request or obtain intervention of the courts to terminate this Agreement.
Customers who purchase pay-as-you-go or per Send service plans are not entitled to any refund upon cancellation or termination of this Agreement, with or without cause. If PoliteMail terminates this agreement without cause, the following refund policy shall apply: Terminations within 90 days of the invoice date will be refunded 100% of the total fee paid for the Service, minus a pro rata fee for Sends used during the period. Terminations over 90 days after the invoice date will not receive any refund. IF PoliteMail TERMINATES YOUR ACCOUNT FOR A VIOLATION OF THIS AGREEMENT, PoliteMail´S ACCEPTABLE USE POLICY, OR PoliteMail´s NO SPAM POLICY, PoliteMail SHALL NOT BE REQUIRED TO REFUND TO YOU ANY AMOUNTS BILLED OR PAID BY YOU.
Upon any cancellation, termination or expiration of this Agreement, PoliteMail will cease providing the Service, and You will uninstall and delete all copies of the Software thereto within three (3) business days of such termination. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees except as provided in this Agreement and (b) any (i) outstanding balance for Service rendered through the date of termination and (ii) other unpaid payment obligations during the remainder of the term will be immediately due and payable in full and (c) all of your Customer Data and any historical report data will no longer be available to You unless, prior to termination, You enter into and purchase a professional services agreement for the exchange and transfer of such data. ALL CUSTOMER DATA AND ACCOUNT SETTINGS WILL BE IRREVOCABLY DELETED WITHIN SIXTY (60) DAYS UPON ACCOUNT TERMINATION.
Your non-termination or continued use of the Services on your Account reaffirms that PoliteMail is authorized to charge your Account. PoliteMail may submit those charges for payment and you will be responsible for such charges. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially ordered the applicable products or services.
7. SERVICE LEVELS AND SUPPORT Your Service may include a separate performance related Service Level Agreement ("SLA"), and if so, those terms related to uptime and system performance shall apply.
PoliteMail does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of your equipment, systems or local internet access services, (3) for previously scheduled maintenance or (4) relating to events beyond PoliteMail´s (or its contractors´) control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where PoliteMail or your servers are located or co-located. PoliteMail does not guarantee the performance of the service will be adequate at all times, or that all features and functions of the service will be available at all times. Data accuracy in all aspects, including but not limited to completeness or real-time accuracy of your Reports, at all times is not guaranteed.
Support for the Services and Software is available via online at http://www.politemail.com/support or via email at support@politemail.com 24/7, excluding PoliteMail holidays. Telephone support may be provided, but PoliteMail is under no obligation to provide telephone support for the Software, unless the User has purchased an additional Technical Support Services Agreement. Additional service contracts may be purchased from PoliteMail for telephone support, guaranteed SLAs or other service plans. If You need to contact PoliteMail regarding additional services, please send a message to service@PoliteMail.com.
8. PRIVACY Use of the Software and Services requires that You will have and abide by an appropriate privacy policy of your own and will comply with all applicable laws relating to the collection of information from visitors to your email pages and websites. You must post a privacy policy and that policy must provide notices of your use of cookies to collect online interaction data and web beacons which identify email and/or web page use. The privacy statement for your use of the PoliteMail services is available at www.politemail.com/privacy.
9. NO SPAM POLICY You are responsible for any email You Send using the Service or Software, and any Mailing Lists You create, import or maintain using the Service and Software. You are responsible for any SPAM or abuse complaints and consequences arising from use of the Services and Software. Upon discovery or notification of any service abuses, PoliteMail will investigate and, without prior notice to You, may disable any Account in order to protect the security, integrity and usability of the PoliteMail servers and shared network hosting the Services. PoliteMail expressly prohibits the sending of SPAM through its Software or Service. If You believe that You have received SPAM from PoliteMail´s network, please send a complaint signed with Your name and contact information, and attach the message You received (which, unlike forwarding, includes the complete email headers) to abuse@politemail.com. PoliteMail does not investigate or take action based on anonymous SPAM complaints. Mailing lists may not be used for purposes or in manners that are harassing, abusive, illegal, and/or will create liability for You, PoliteMail or third parties. Other prohibited email activities include: Mail bombing (sending an unreasonably large number of email messages to a single system, person or email address); Mail harassment (sending email in a manner or with content that is perceived as threatening or harassing by the intended or actual recipient); or Letter bombing (sending email with content that will or could potentially harm the recipient´s computer). The following is a list of minimum requirements for the permitted use of the Services and Software for commercial email and mailing lists. These are guidelines to minimize the probability of complaints. However, You will still be responsible for any complaints received in relation to Your Account despite having implemented all these requirements.
10. CONFIDENTIALITY AND NON-DISCLOSURE "Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential." Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party´s possession prior to disclosure by a party, or which is independently developed by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party´s Confidential Information without the other´s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. You are responsible for safeguarding the confidentiality of Your password(s) and User name(s) issued to You by PoliteMail, and for any use or misuse of Your Account resulting from any third party using a password or User name issued to You. You agree to immediately notify PoliteMail of any unauthorized use of Your Account or any other breach of security known to You.
11. DATA AND INFORMATION RIGHTS Data. All data collected from You, including data You import, as well as the data collected by the Software as a result of Your utilization of the Service (“Customer Data”), is Your property and remains Your property upon termination of this Agreement. You may export Your Customer Data at any time using the tools provided by the service. PoliteMail will not access or use Your Customer Data except as required by law and for providing You with features, services and support related to Your use of the Service. As features of the Service may enable collection of both personal and non-personally identifying information about Your customers, providing notice of the collection and use of data, including personally identifying information, is an important privacy disclosure. We recommend You incorporate the terms of PoliteMail’s privacy policy into Your own Privacy Policy. Please refer to the PoliteMail privacy policy at www.politemail.com/privacy for information regarding how PoliteMail uses and collects information. Information Rights and Consent to Use Data. You agree that PoliteMail and its affiliates may collect, retain and use technical information gathered through Your use of the Service and any support services provided to You in relation to the Software. Some statistical data regarding the use of the Service may be compiled in aggregate and utilized by PoliteMail for support, sales, and service or maintenance purposes. PoliteMail may use this data to improve our products or to provide services or technologies to You and will not disclose this information in a form that personally identifies You. PoliteMail may retain and use, subject to the terms of its Privacy Policy (located at www.politemail.com/privacy, or such other URL as PoliteMail may provide from time to time), information collected in connection with Your use of the Service. PoliteMail will not share information associated with You, Your Website, or Your Account with any third parties unless PoliteMail (i) has Your consent; (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of PoliteMail, its Users or the public; or (iii) provides such information in certain limited circumstances to third parties to carry out tasks on PoliteMail´s behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by PoliteMail. In the event of such disclosure, PoliteMail will use reasonable measures to enter into agreements that oblige those parties receiving information to process such information only on PoliteMail´s instructions and in compliance with this Agreement and appropriate confidentiality and security measures.
12. INDEMNIFICATION You agree to indemnify, hold harmless and defend PoliteMail at Your expense, from and against any and all third-party claims, actions, proceedings, and suits brought against PoliteMail or any of its officers, directors, employees, agents, contractors or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys´ fees and other litigation expenses) incurred by PoliteMail or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service and related Software, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, or (iv) Your Branding. In such a case, PoliteMail will provide You with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. PoliteMail reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You. These obligations will survive any termination of Your relationship with PoliteMail or Your use the Services and Software.
13. THIRD PARTIES If You provide access to Your Account or any portion thereof to any third party or use the Service to collect information on behalf of any third party (“Third Party”), whether or not You are authorized to do so by PoliteMail, the terms of this Section 13 shall apply to You. If You use the Service on behalf of any Third Party, You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, that Third Party, (b) as between the Third Party and You, the Third Party owns any rights to Customer Data in the applicable Account, and (c) You shall not disclose Third Party´s Customer Data to any other party without the Third Party´s consent. You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. PoliteMail makes no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to PoliteMail, the Service, the Software or the Reports, or use thereof. You agree to indemnify, hold harmless and defend PoliteMail, at Your expense, against any and all third-party claims, actions, proceedings, and suits brought against PoliteMail or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys´ fees and other litigation expenses) incurred by PoliteMail, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by You concerning any aspect of the Service, the Software or Reports to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service, the Software or Reports; (c) violations of Your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Services, the Software or Reports.
14. DISCLAIMER OF WARRANTIES The information and services included in or available through the Software and Service, including the Reports, may include inaccuracies or typographical errors. Changes are periodically added to the Service. PoliteMail and/or its respective suppliers may make improvements and/or changes in the Service or Software at any time, with or without notice. PoliteMail does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Software or any other software on the Server are free of viruses or other harmful components. PoliteMail does not warrant or represent that the use of the Service or the Reports will be correct, accurate, timely or otherwise reliable. You specifically agree that PoliteMail shall not be responsible for unauthorized access to or alteration of the Customer Data or data collected as a result of Your use of the Service. YOU EXPRESSLY AGREE THAT USE OF POLITEMAIL´S SERVICES IS AT YOUR SOLE RISK. BETA SOFTWARE AND SERVICES, IF ANY, ARE PROVIDED ON AN AS-IS BASIS. EXCEPT FOR THE LIMITED WARRANTIES RESPECTING THE SOFTWARE SET FORTH IN THE SOFTWARE LICENSE AGREEMENT, THE SERVICE, THE SOFTWARE AND REPORTS ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY POLITEMAIL AND/OR ITS SUBSIDIARIES, CONTRACTORS AND AFFILIATES, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION AND REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. POLITEMAIL DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
15. LIMITATION OF LIABILITY TO THE FULLEST EXTENT PERMITTED BY LAW, POLITEMAIL, ITS OFFICERS, AGENTS, CONTRACTORS OR AFFILIATES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, OR CONTRIBUTION, OR OTHERWISE, EVEN IF POLITEMAIL AND/OR ITS SUBSIDIARIES AND AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU. Notwithstanding any special, indirect, incidental, punitive, or consequential losses or damages that You might incur for any reason whatsoever (including, without limitation, loss of revenue or profits or failure to realize savings or other benefits, and all direct or general damages in contract or anything else), the entire liability of PoliteMail and any of its suppliers under any provision of this Agreement, and Your exclusive remedy hereunder (except for any remedy of repair or replacement elected by PoliteMail with respect to any breach of the Limited Warranty), shall be limited to the amount actually paid by You for the Software and Services with a total cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement not to exceed US$500. The limitation of liability set forth in this section, shall not apply to either party’s obligation to indemnify the other as set forth in this Agreement.
16. PROPRIETARY RIGHTS NOTICE The Service, which includes but is not limited to the Software and all intellectual property rights in the Service are, and shall remain, the property of PoliteMail. All rights in and to the Software not expressly granted to You in this Agreement are hereby expressly reserved and retained by PoliteMail and its licensors without restriction, including, without limitation, PoliteMail´s right to sole ownership of the Software and Documentation. Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to): (a) sublicense, distribute, or use the Service outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of PoliteMail; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with PoliteMail other than in the name of PoliteMail; or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
17. HARDWARE, EQUIPMENT AND SOFTWARE You are responsible for and must provide all computers, software, hardware, internet service and other services necessary to access and utilize PoliteMail Software and Services. PoliteMail makes no representations, warranties, or assurances that Your equipment and software will be compatible with the Services.
18. U.S. GOVERNMENT RIGHTS If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government´s rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
19. MODIFICATIONS TO TERMS OF SERVICE AND OTHER POLICIES PoliteMail reserves the right to change or modify any of the terms and conditions contained in any policy governing or related to the Service, at any time, by posting the new policy to the site located at www.PoliteMail.com/tos (or such other URL PoliteMail may provide from time to time). You are responsible for regularly reviewing the policy. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of PoliteMail, (ii) You accept updated terms online, or (iii) You continue to use the Service after PoliteMail has posted updates to any policy governing the Service.
20. GENERAL PROVISIONS Force Majeure. PoliteMail shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. Publicity. PoliteMail may make public statements that You are a User of the Software, and publish comments You make or report about Your use and evaluation of the Software. You grant to PoliteMail a non-exclusive, worldwide, royalty-free license to use, reproduce, distribute, publicly display, and digitally perform Your trade names, trademarks, and service marks on the PoliteMail’s Web Sites and/or promotional literature in digital or paper formats stating that You are a User of the Software. Use of free or trial services. PoliteMail may add identifying marks, logos, trademarks or messages in the footer of Your email messages sent using the Service. You agree not to remove or alter this message. PoliteMail’s logos, trademarks and product and service names are proprietary trademarks, and You may not display or use such proprietary marks in any manner without PoliteMail’s express authorization. Legal Effect. This Agreement describes certain legal rights. You may have other rights under the laws of Your state or country. You may also have rights with respect to the party from whom You acquired the software. This Agreement does not change Your rights under the laws of Your state or country if the laws of Your state or country do not permit it to do so. Applicable Law and Venue. This Agreement will be interpreted, construed and enforced in all respects in accordance with the laws of the United States of America, State of New Hampshire, without reference to its choice of law principles to the contrary. The United Nations Convention on Contracts for the International Sale of Goods (or its successor) applies to this Agreement. You hereby consent to the jurisdiction and venue of the state courts located in Rockingham County, New Hampshire State of New Hampshire, with respect to any claim arising under or by reason of this Agreement. You will not prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement except in such courts. The Software is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. Severability. This Agreement will be enforced to the fullest extent permitted by applicable law. If any provision of this Agreement is held to be invalid or unenforceable to any extent, then (a) such provision will be interpreted, construed and reformed to the extent reasonably required to render the same valid, enforceable, and consistent with the original intent underlying such provision, and (b) such invalidity or unenforceability will not affect any other provision of this Agreement. Non-waiver. A waiver of any default is not a waiver of any subsequent default. Notices. Any notices to PoliteMail must be sent to: PoliteMail Software, 655 Portsmouth Ave., Suite 11, Greenland NH 03840, USA, via first class or air mail, and are deemed given upon receipt. Assignment. You may not assign or otherwise transfer any of Your rights hereunder without PoliteMail´s prior written consent, and any such attempt is void. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. Relationship of Parties. Nothing in this Agreement shall be construed by implication, estoppel, or otherwise as establishing any type of commitment or partnership between the Parties, and each of the parties will be operating as an independent contractors. Service Interruptions. Because access to certain features of the Service is provided over the public Internet, temporary disruptions of network connectivity may occur from time to time. Service may also be temporarily interrupted or curtailed due to equipment modifications, software upgrades, relocations, repairs, and other similar activities necessary during the operation and maintenance of the Software. PoliteMail will not be liable for interruption or delays in transmission or errors or defects in transmission or failure to transmit. In no event will PoliteMail be liable for any damages due to interruption of the Service. POLITEMAIL DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SOFTWARE AND SERVICE WILL BE UNINTERRUPTED. Claims must be filed within one year. Except for claims related to any Service Level Agreement(s) for this Software, to the extent permitted by law, any claim related to this Agreement must be brought within one year of the date when the claim first could be filed. If it is not filed within that period, then that claim is permanently barred. This section applies to You and Your successors. It also applies to PoliteMail and its successors and assigns. Termination. PoliteMail may terminate this Agreement if Licensee fails to cure any material breach of this Agreement within thirty (30) days of receiving notice of such breach from PoliteMail. Upon any such termination, all of Licensee’s right to use the Software shall immediately cease and Licensee shall promptly uninstall, remove and destroy all copies of the Software. Any obligation of pay fees incurred under Section 2 of this Agreement shall survive termination of this Agreement for any reason. Termination is not an exclusive remedy and all other remedies will be available whether or not the Agreement is terminated. Entire Agreement. This Agreement, and any related Software License Agreement for locally installed Software used in conjunction with the Service, constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior understandings, representations, warranties, Agreements, covenants, and undertakings, whether written or oral, between the parties regarding such matters. The following sections of this Agreement will survive any termination thereof: 10, 12, 13, 14, 15, 16, and 20.