LAST UPDATE: 10/29/2012
This document sets Terms of Service and Acceptable Usage Policy ("TSAUP") for the CiviSMTP service ("Service") provided by Target Node, LLC ("CiviSMTP", "Company", "we" or "us").
PLEASE READ THESE TERMS OF SERVICE AND ACCEPTABLE USAGE POLICY CAREFULLY. THESE TERMS OF SERVICE AND ACCEPTABLE USAGE POLICY MAY HAVE CHANGED SINCE YOUR LAST VISIT. BY USING THE CIVISMTP SERVICE AND ANY RELATED PRODUCTS OR SERVICES YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS OF SERVICE AND ACCEPTABLE USAGE POLICY. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE AND ACCEPTABLE USAGE POLICY, THEN DO NOT USE THIS SERVICE.
USING THE CIVISMTP SERVICE OR ANY RELATED PRODUCTS OR SERVICES FOR SENDING ANY NUMBER OF UNSOLICITED MAIL MESSAGES (SPAM) IS EXPLICITLY PROHIBITED.
The CiviSMTP Service and any related products and services will be referred to in these Terms of Service and Acceptable Usage Policy as the "Service" or the "CiviSMTP Service".
1. ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE
2. DESCRIPTION OF SERVICE
3. PRICING, BILLING AND PAYMENT
4. TERM OF CONTRACT, TERMINATION, CANCELLATION AND REFUND POLICIES
5. RESALE OF THE SERVICE
6. ACCEPTABLE USAGE POLICY
7. MODIFICATIONS TO SERVICE, TERMS OF SERVICE AND ACCEPTABLE USAGE POLICY
9. SEVERABILITY & CONFLICT OF TERMS
10. DISCLAIMER OF WARRANTIES
11. LIMITATION OF LIABILITY
12. RESTRICTED PERSONS; EXPORT OF PRODUCTS OR TECHNICAL DATA
14. FORCE MAJEURE
15. GOVERNING LAW
20. REPRESENTATIONS AND WARRANTIES
The Service is available only to persons and entities who can form legally binding contracts under applicable law. Without limiting the foregoing, the Service not available to individuals under the age of 18. If you do not qualify, you are not permitted to use the Service. If you registering for the Service on behalf of an entity, it has to be a company duly organized and validly existing in good standing under the laws of the state in which it was organized and have full power and authority to enter into this Agreement, which, upon its execution hereof, will constitute a legal, valid and binding obligation enforceable against it in accordance with the terms hereof. If you are using the Service in your capacity as an employee, contractor or representative of a third party, you must have the ability to bind your employer/client/3rd party you represent by your use of the Service.
BY COMPLETING THE REGISTRATION PROCESS AND CLICKING THE "Accept" BUTTON, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE TSAUP.
In the event you choose not to accept this Agreement or by technical means can bypass/disable the "Accept" and access and/or use the Service in any way, you shall be deemed to have agreed to be bound by the terms of this Agreement. Further, you hereby acknowledge that you choose to accept and be bound by the terms of this Agreement every time you access or use the Service. If you do not agree to the terms of this Agreement, do not use the Service.
If you are accessing or using the Service through a third party service or web site (a "Third Party Service"), you agree and acknowledge that we are not responsible or liable for any actions of such third party or for any aspect or result of such Third Party Service. You use such Third Party Service at your own risk. You further agree and acknowledge that we may terminate such Third Party Service's ability to interact with the Service at any time, with or without notice, and in CiviSMTP's sole discretion, with no liability to you or to the third party.
If you are accessing or using the Service through a Third Party Service, you will abide by this Agreement regardless of anything to the contrary in your agreement with such third party. You shall not use such Third Party Service to avoid the restrictions set forth in this Agreement.
CiviSMTP Service's purpose is to serve as an SMTP Relay for the CiviCRM software mailing component CiviMail.
The Service will be providing an SMTP back end for CiviCRM installations which will handle the email transactions between your CiviCRM installation and your constituents and users. We will also be handling mailings (newsletters, etc) to your groups. This includes the bounces, subscribes, un-subscribes, opt-outs, confirms, and replies.
The Service may also include related products and services such as consulting services, custom SMTP relay setup and etc. You may from time to time provide our service personnel with access to your computers, CiviCRM installation and other systems for the purpose of troubleshooting issues that arise in your use of the Service. You hereby waive any claim for damages from any problems that may arise from such access, including without limitation any disruption or damage caused by CiviSMTP or its personnel.
The Client must have and maintain their own installation of CiviCRM software and is responsible for Client's hardware and software to be correctly configured and capable of using our Service.
The Client is responsible for correctly configuring their CiviSMTP Account Settings, DNS records or any other system settings necessary for using the Service.
The Client is responsible for maintaining a working SOAP Proxy URL that is part of their CiviCRM installation and for making sure it is correctly configured within their CiviSMTP Settings.
If at any point during processing of the responses from the Client's constituents the SOAP Proxy URL is not reachable or doesn't work as it is supposed to (i.e. returns an error) all responses will be deferred, the Client will be notified of the problem and further mailings from the client will be blocked until the Client fixes the problems with the SOAP Proxy. Once the Client notifies the Service staff that the problem has been resolved and it is verified that it has indeed been resolved all deferred responses from constituents will be reprocessed and the Client can continue sending more mailings using the Service.
Upon Client's completion of the Application Form for the Service order and agreement to the TSAUP, the Client's Application will be reviewed by CiviSMTP and if accepted, the Client will be billed the initial charge as stated in the "PRICING" section of this Agreement, an Account will be set up for the Client and upon payment clearance the Service will be activated.
We reserve the right to accept, refuse, or limit your order for any reason, including but not limited to credit card / payment clearance.
The Client agrees to provide and maintain certain current, complete, true and accurate information about the Client as prompted to do so by the Service ("Client Account Information"). The Client agrees to inform us of any changes in Client Account Information including but not limited to contact details, address, telephone number or email address by updating them using the online Account Settings (if applicable) or by contacting us at email@example.com .
The Client agrees that we may use the contact information provided by the Client on the Application Form including the physical address, email address and telephone number to contact the Client about the account and/or the Service.
If any information provided by the Client is inaccurate, we reserve the right to terminate the Service and the Service Agreement with or without notification to the Client.
Furthermore, the Client grants CiviSMTP the right to disclose certain Client Account Information about the Client and Service information where required to do so by any applicable law or legal process.
We may use Client Account and Service Information and any technical information about the Client's use of the Service to tailor its offerings to the Client, facilitate use of the Service by the Client, or communicate separately with the Client. If you are using the Service with the help of a third party, we may share your information with that third party and that third party may share related information with us.
We will make best efforts to make sure that the Service:
- is provided using reasonable skill and care.
- is fit for normal use and stated purpose (but not fit for any use which CiviSMTP states on its websites (http://www.civismtp.com) and/or in TSAUP may be inappropriate).
- complies with the written description given on CiviSMTP website, which we strive to keep complete and accurate.
It is not technically possible to provide the Service free from errors and/or faults and we do not undertake to do so. All errors and/or faults related to the Service should be reported to firstname.lastname@example.org but we cannot warrant that all such errors and/or faults will be corrected.
We also offer forum support at:
All services are supplied subject to availability.
$50 one time setup fee for new accounts
$15.00 / month - This includes 3000 emails sent.
All emails sent over the initial allotment will be billed at the following rates:
- @3,000+ : $0.03 / 10 emails sent (3.00 / 1000)
- @10,000+ : $0.01 / 10 emails sent (1.00 / 1000)
- @100,000+ : $0.01 / 15 emails sent (1.00 / 1500)
- @250,000+ : $0.01 / 20 emails sent (1.00 / 2000)
Any portion of a ten email block that is sent is considered as a 10 emails sent. Same schema is applied to blocks of 15 and 20 emails. This means that if you sent 3654 emails you will be billed for 3660.
$15.00 / month is the base cost. That includes 3000 emails sent. As soon as you hit 3001 emails sent we start billing at $0.03 / 10 emails sent or any portion of a ten email block that is sent. For example, if you send 3001 - 3010 emails, you will be charged $15.03.
The billing period is a calendar month. For example, if you sign up September 1, we charge $50 for the account setup and $15.00 for the monthly service fee which includes 3000 emails sent. On October 1st we will bill for any usage above the 3000 emails for September. We will also at that time charge the $15.00 monthly fee for the next month's access (October) unless you have canceled your Service at least 2 days prior to the beginning of the October monthly term, which is October 1.
All accounts will be billed once a month on the first day of the month.
If you are an existing customer and setting up a new account for the same organization then the setup fee is waived. If you are an existing customer and you are applying for a new account for another organization than the one(s) you've already registered with us then the setup fee is same as for new accounts - $50 per account.
For existing customers the new base fee of $15/month goes into effect May 1st, 2009.
ACCOUNTS THAT ARE CREATED DURING A MONTH PERIOD WILL STILL BE CHARGED $15.00 AND GIVEN THE 3000 EMAILS, EVEN IF IT IS THE LAST DAY OF THE MONTH.
The Client is obligated to pay the fees and other charges arising from the Service even if the Client is not actively using the Service. Initial payment of $65.00 ($50 + $15) is obligatory for Service Activation. Subsequent payments have to be made within 10 days of the receipt of the bill/invoice from us unless otherwise indicated on the bill/invoice.
The Client shall pay a late payment charge of 10% per month (with any portion of the month rounded up to one month) on the outstanding balance of any invoice remaining unpaid after the date upon which payment is due ("Due Date"). Accounts unpaid after the Due Date may have the Service restricted, suspended or terminated. Such restriction, suspension or termination shall not relieve you of your obligation to pay the fee due.
We reserve the right to charge you and you agree to pay us for our time and any associated costs including but not limited to attorney's fees and collection agency fees incurred in enforcing its rights under this agreement, incurred in dealing with IP Black Listing, SPAM Trap hits or listings or any complaints received due to emails you send through the Service or any other violations of Service Terms and Acceptable Usage Policies. A fee of $25.00 per incident may be assessed by us for dealing with a complaint received from emails you send through our Service. A cleanup fee of $100.00/hour (minimum 4 hours) may be assessed by us for dealing with IP Black Listing, SPAM Trap hits, more severe incidents of complaints or for any violation of the terms of the Agreement.
If you have selected additional related products or services, we will bill you for those as well.
Payments shall be made using the CiviSMTP Payment Page unless otherwise indicated on the bill/invoice:
using either a credit card or a PayPal account or by any other method permitted on the page.
Fees are payable in U.S. dollars.
We have the right to change the prices for the Service at any time without advance notice to the Client.
The Term of this Agreement is month to month.
Either the Client or the Company may cancel/terminate the Service with or without cause at any time and may do so immediately.
We shall not be liable to the Client or any third party for termination of the Service.
YOU ARE RESPONSIBLE FOR TERMINATING YOUR ACCOUNT AND THIS AGREEMENT AND WE ARE NOT RESPONSIBLE FOR YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT AND ANY CHARGES AND FEES YOU INCUR AS A RESULT OF YOUR FAILURE TO PROPERLY TERMINATE YOUR ACCOUNT AND THIS AGREEMENT.
Should the Client object to any terms or conditions of the the Agreement or any subsequent modifications thereto or become dissatisfied with the Service in any way, the Client's only recourse is to immediately discontinue use of the Service and notify us of the Client's termination of Service. Upon termination of the Service, the Client's right to use the Service immediately ceases and CiviSMTP will have no obligation thereafter to provide the Service to the Client.
If you cancel this Agreement or if your account is terminated prior to the end of a current monthly term, you are still obligated to pay the fees accrued prior to such cancellation including the monthly service fee for the current monthly term. The Company shall not refund to you any fees paid in advance of such cancellation for that monthly term. You must submit a cancellation request at least two (2) days prior to the beginning of the new monthly term to avoid being billed for that new monthly term.
Any cancellation by the Client or the Company shall not relieve the Client of any obligations to pay fees accrued prior to such cancellation.
If we make a mistake in any bill, we will correct it as soon as the mistake comes to our attention, and we will, if appropriate, refund any money to you promptly.
No other refunds are allowed but we reserve the right to make exclusions.
We reserve the right to reverse any transaction in the case of an error caused by us.
CiviSMTP, at its own discretion, may immediately disable your access to the Service, without refund, if CiviSMTP believes in its sole discretion that you have violated any of the policies listed in this Agreement.
We may terminate this Agreement or the Service, disable your account, in each case at any time with or without cause, and with or without notice. The Company shall have no liability to you or any third party because of such termination or action.
The Client agrees not to resell the Service without the express consent of the Company.
CiviSMTP Service's only purpose is to serve as an SMTP Relay for the CiviCRM software mailing component CiviMail.
The Service, our servers, networks and systems may only be used for lawful purposes.
The Client is solely responsible for the contents of his/her usage of the Service.
The limit on the size of an individual email sent through CiviSMTP Service is 1MegaByte (this includes but limited to the email text + html + attachment size).
The Client's use of the Service is subject to all applicable local, state, federal, and international laws and regulations, including Internet regulations, policies, and procedures.
The Client agrees to:
1. comply with all local, state, federal and international laws regarding the usage of the Service including but not limited to transmission of technical data and export of data from the United States through the service;
2. not to use the Service for illegal purposes;
3. not to interfere with or disrupt servers, networks, websites or systems connected to the Service;
4. to comply with all regulations, policies, and procedures of networks connected to the Service.
Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat or violates export control laws.
Evidence of illegal or prohibited activities may be disclosed to law enforcement authorities.
CiviSMTP prohibits the use of the Service by any person or entity that:
* Provides, sells or offers to sell any of the following products or content (or services related to the same): pornography or illicitly pornographic sexual products, including but not limited to magazines, video and software; escort services; dating services; adult "swinger" promotions; illegal goods; illegal drugs; illegal drug contraband; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons.
* Displays or markets material that exploits children, or otherwise exploits children under 18 years of age.
* Provides, sells or offers products, services or content frequently associated with unsolicited commercial email, a.k.a. spam, such as online and direct pharmaceutical sales, including but not limited to health and sexual well-being products, work at home businesses, credit or finance management, including but not limited to credit repair and debt relief offerings and stock and trading tips, and mortgage finance offers, DJ/nightclub, event/club promotions/party lists, and odds making and betting/gambling services, including but not limited to poker, casino games, horse and dog racing and college and pro sporting events.
* Provides material that is grossly offensive, including blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content.
* Posts or discloses any personally identifying information or private information about children without their consent (or their parents' consent in the case of a minor).
* Sells or promotes any products or services that are unlawful in the location at which the content is posted or received.
* Introduces viruses, worms, harmful code and/or Trojan horses on the Internet.
* Promotes, solicits or participates in pyramid schemes or multi-level channel and/or network marketing (MLM) businesses, including but not limited to personal work-at-home offers promoting "get rich quick", "build your wealth" and "financial independence" offerings.
* Engages in any libelous, defamatory, scandalous, threatening, or harassing activity.
* Posts any content that advocates, promotes or otherwise encourages violence against any governments, organizations, groups or individuals or which provides instruction, information or assistance in causing or carrying out such violence.
* Markets to third party voter registration lists.
* Provides content, including images, of authors, artists, photographers or others without the express written consent of the content owner.
USING THE SERVICE FOR SENDING ANY NUMBER OF UNSOLICITED MAIL MESSAGES (SPAM) IS EXPLICITLY PROHIBITED.
We reserve the right of judgment whether email messages sent by the Client constitute spam or any other inappropriate form of mailing.
The following are rules/guidelines (without limitation) that apply to email messages sent through the Service:
- You must ensure that all people you send to are fully 'opt-in', have consented to receive emails from you and are therefore specifically 'expecting' to receive emails from you.
- You should not use anything (software or other services/companies) that automatically generate email lists by 'harvesting' email addresses from the Internet / web sites.
- You must ensure your email 'from' / 'return to' / 'reply to' (sender) address(es) are valid and you must be able to receive email at that address.
- You must ensure that the "subject" line of any email message sent by you using the Service will not contain any deceptive or misleading content regarding the overall subject matter of the email message.
- You must ensure your email 'to' (recipient) addresses are valid - accounts that send a large number of emails to invalid email addresses waste excessive resources and increase the risk of our servers being blocked / blacklisted.
- Email message headers / envelopes must not be missing, malformed or forged and message subject lines must not contain false or misleading information.
- If sending to a mailing / distribution list (or the same message to a large number of recipients) you must include a working visible 'unsubscribe' link or Internet based method to process any unsubscribe requests (a telephone / postal based method is not sufficient). Each such link must remain operational for a period of thirty (30) days after the date on which you send the message. You acknowledge and agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within ten (10) days of submission. Under the CAN-SPAM Act, you acknowledge that you are responsible for maintaining and honoring the unsubscribe requests following termination of your account and this Agreement.
- If you do receive any spam complaints the recipient should be removed from your mailing list. After doing so, if you believe the complaint was an 'error' you may wish to contact them one further time or by another method (telephone, post etc.) to confirm if it was a mistake and if they wish to be re-subscribed to your list.
- Make sure your emails are compliant with the CAN-SPAM Act. One of the specific provisions is that you should include your valid physical address in commercial / advertising / mailing list emails you send.
- You agree that you will not send any commercial / advertising / mailing list emails to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting.
Violations of system or network security are prohibited and may result in criminal and civil liability.
The Client shall not interfere with another Client's or entity's use of the Service.
The Client shall at all times comply with the Agreement of the Service.
Although CiviSMTP has no obligation to monitor and analyze the content provided by you or your use of the Service, CiviSMTP may do so and may block any email messages, block any such content from being sent through the Service, restrict or prohibit any use of the Service that CiviSMTP believes may be (or is alleged to be) in violation of the Agreement.
Indirect or attempted violations of the Agreement, and actual and or attempted violations by a 3rd party on behalf of one of our customers or a customers' end user, shall be considered violations of the Agreement by such customer or end user.
CiviSMTP may, at its sole discretion, immediately restrict, suspend and/or terminate the Service and cancel this contract or take any appropriate action described in the the Agreement without notice, and without any liability to CiviSMTP should the Client's conduct fail to conform to the terms and conditions of the Agreement or should CiviSMTP receive any complaints about your use of Service.
CiviSMTP may, at its sole discretion and without any liability to CiviSMTP use unsubscribe or opt out link or email address or any other Internet based method you provided in your mailing to unsubscribe or opt out users who have complained about Your mailing to us. This includes but not limited to complaints received via the Feedback Loop (FBL) with ISPs. This is a standard industry practice and it helps us keep our deliverability rates high. In cases of such actions we'll make our best effort to report such unsubscribes/"opt outs" to You but we do not guarantee to do so nor do we guarantee that you will get full information about the complaint.
You are responsible for ensuring that your emails do not generate a number of SPAM complaints in excess of industry norms. CiviSMTP, in its sole discretion, shall determine whether your level of spam complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. CiviSMTP has the right to terminate your use of the Service if CiviSMTP determines that your level of spam complaints is higher than industry norms (as determined by CiviSMTP).
CiviSMTP reserves the right to charge for our time and any associated costs dealing with complaints received from emails you send through the Service or any other violations of Service Terms and Acceptable Usage Policies. A fee of $25.00 per incident may be assessed by CiviSMTP for dealing with complaints received from emails you send through the Service. A cleanup fee of $100.00/hour (minimum 4 hours) may be assessed by CiviSMTP for violation of the Agreement, for dealing with IP black listing and severe cases of complaints from the emails you sent through the Service.
If your service is suspended or terminated for violation of the Agreement then you forfeit all fees paid, including pre-paid fees and unused time. All fees paid become non-refundable. Further, account termination does not absolve or nullify Penalty payments you may owe to CiviSMTP. Further, you may accumulate additional Penalties based on complaints received after your termination. This section of the Agreement will survive for a period of one year after this agreement is terminated.
The Primary email addresses set in your Account Settings and/or "My Account" is the primary means we will contact you about your account (error reports, spam complaints, renewal notices and etc). These email addresses must be kept up-to-date and can be viewed / changed by logging into your Account Settings and/or "My Account".
The Client is responsible for maintaining a working SOAP Proxy URL that is part of their CiviCRM installation and for making sure it is correctly configured within their CiviSMTP Settings. If at any point during processing of the responses from the Client's constituents the SOAP Proxy URL is not reachable or doesn't work as it is supposed to (i.e. returns an error) all responses will be deferred, the Client will be notified of the problem and further mailings from the client will be blocked until the Client fixes the problems with the SOAP Proxy URL. Once the Client notifies the Service staff that the problem has been resolved and it is verified that it has indeed been resolved all deferred responses from constituents will be reprocessed and the Client can continue sending more mailings using the Service.
CiviSMTP reserves the right to change the terms and conditions of this Agreement as necessary at any time, and the Client agrees to be bound by such modifications or revisions. CiviSMTP expects the Client to actively ensure that it agrees to the current Agreement.
The current version of TSAUP will be posted at:
Please note that the Client's use of the Service constitutes an acknowledgement by the Client to follow and be bound by the Agreement and any modifications.
CiviSMTP reserves the right to modify or discontinue the Agreement and/or the Service with or without notice to the Client. CiviSMTP shall not be liable to the Client or any third party should CiviSMTP exercise this right.
Your privacy and security of your information is important to us. This notice applies to information we collect and maintain when you visit our website http://www.civismtp.com and when you use our services.
Target Node, LLC ("CiviSMTP", "Company", "we" or "us") will use the information
you ("Client") provide to us and information arising from our operations
with you to enable us to perform our obligations to you.
We will not modify, monitor, analyze or share data with third parties
without your prior consent or unless it's necessary to do so in order
for the CiviSMTP Service to function properly, to fullfill our
obligations to you or unless it is required to do so by law.
We will try to do its best to protect your data against loss, misuse, alteration, unauthorized use and
disclosure. However any data transmission over the Internet is not guaranteed to be fully secure. While we strive to protect your data from unauthorized use and
disclosure, CiviSMTP does not warrant or guarantee the security of the
data that you provide to us, therefore you do so at your own risk.
You may request a copy of personally identifiable information
we collect about you and you may request corrections to that
information. For any of these requests or for more information about our
privacy policies and practices, please contact us at email@example.com .
If any provision of this Contract shall be held by a court of competent jurisdiction to be invalid, unenforceable, or void, the remainder of this contract shall remain in full force and effect. If possible, such provision and/or the offending term(s) shall be modified to the minimum extent necessary to make it valid.
If you are a business, our standard terms and conditions are to prevail over any you seek to impose.
THE CLIENT EXPRESSLY AGREES THAT THE USE OF THE SERVICE IS AT THE CLIENT'S SOLE RISK. THE SERVICE AND ANY RELATED INFORMATION OR ADVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CIVISMTP EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CIVISMTP MAKES NO WARRANTY THAT THE SERVICE WILL MEET THE CLIENT'S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES CIVISMTP MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE HARDWARE/SOFTWARE WILL BE CORRECTED. THE CLIENT UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT THE CLIENT'S OWN DISCRETION AND RISK AND THAT THE CLIENT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO THE CLIENT'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. CIVISMTP MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR IN ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE CLIENT FROM CIVISMTP OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CIVISMTP OR ITS RESPECTIVE EMPLOYEES, REPRESENTATIVES, AFFILIATES, AGENTS, SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, LICENSORS OR THE LIKE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHICH ARISE OUT OF OR IN CONNECTION WITH THE SUPPLY OF THE SERVICE OR RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASE OR OBTAINED OR DOMAINS MOVED OR MODIFICATIONS TO DNS RECORDS OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF THE CLIENT'S TRANSMISSIONS OF DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLE, OR FOR ANY CLAIM BY ANY OTHER PARTY EVEN IF CIVISMTP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER, IN NO EVENT WILL CIVISMTP AND THE REPRESENTATIVES' TOTAL CUMULATIVE LIABILITY TO CLIENT OR ANY OTHER PARTY FOR CLAIMS, LOSSES, OR DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, INDEMNITY OR OTHERWISE, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE SERVICE, EXCEED THE AMOUNT YOU PAID FOR THE SERVICE IN THE THREE (3) MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY CIVISMTP TO YOU IN THAT THREE (3) MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
You hereby warrant that you are not a Restricted Person. For purposes of this Agreement, you are a Restricted Person if you or any officer, director, or controlling shareholder of the entity on behalf of which you are using the Service is (1) a national of or an entity existing under the laws of Cuba, Iran, Sudan, Syria, or any other country with which U.S. persons are prohibited from engaging in transactions, as may be determined from time to time by the U.S. Treasury Department; (2) designated as a Specially Designated National or institution of primary money laundering concern by the U.S. Treasury Department; (3) listed on the Denied Persons List or Entity List by the U.S. Commerce Department; (4) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license; or (5) owned, controlled, or acting on behalf of a Restricted Person. If you become a Restricted Person during the term of this Agreement, you shall notify us within twenty-four (24) hours, and we shall have the right to terminate any further obligations to you, effective immediately and with no further liability to you, but without prejudice to your outstanding obligations to us.
You agree that you shall not utilize the Service to conduct or facilitate any transaction with any Restricted Person, except as may be expressly authorized in advance in writing by the U.S. Government. You may not remove or export from the United States or allow the export or re-export of the Service, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
You will indemnify, save, hold harmless, and defend CiviSMTP and all employees, representatives, affiliates, officers, directors and agents of CiviSMTP (collectively "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative) and expenses (including but not limited to reasonable attorneys' fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to your use of the Service, including any violation of the Acceptable Usage Policy, and specifically including without limitation, spamming.
CiviSMTP shall not be liable for failure or delay in performing their obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Service or other occurrences which are beyond either party's reasonable control.
This contract, its interpretation, the breach, termination or validity thereof and any activities, relationships, dispute, claim or controversy between the Client and CiviSMTP arising from or relating to this contract shall be governed by all applicable laws of the State of California, without regard to conflicts of laws, principals.
Any dispute or controversy arising under, out of, or in connection with this Agreement shall be resolved by binding arbitration under the commercial rules of the American Arbitration Association before a single arbitrator. Any such arbitration shall be conducted in San Francisco, California, U.S.A. Judgment upon any award may be entered in any court of competent jurisdiction. The arbitrator shall be designated by mutual agreement of the parties or, if the parties cannot agree on an arbitrator within thirty (30) days after a request for arbitration hereunder, each party shall designate one (1) arbitrator and the arbitrators so designated shall designate a third arbitrator who shall conduct the arbitration. The decision of the arbitrator shall be binding and conclusive upon the parties. All papers, documents, or evidence, whether written or oral, filed with or presented in connection with the arbitration proceeding will be deemed by the parties and by the arbitrator to be confidential information of both parties. The arbitrator chosen in accordance with these provisions will not have the power to alter, amend or otherwise affect the terms of these arbitration provisions or the provisions of this Agreement. Notwithstanding the foregoing, CiviSMTP shall have the right to seek injunctive relief or other equitable or legal remedies in a court of competent jurisdiction in the State of California, to which jurisdiction, for such purpose, Client hereby irrevocably consents.
This Agreement does not create a partnership, joint venture or agency relationship between CiviSMTP and Client. Client does not have any right, power, or authority to act as a legal representative of CiviSMTP.
Client may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of CiviSMTP. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
CiviSMTP failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.