Terms and Conditions for Hosted Services
These terms and conditions apply to the Hosted SecurityGateway services ("Service(s)") offered by MDaemon Technologies, Ltd. ("MDaemon Technologies"):
USE OF SERVICES
By using any Service(s), you agree on your own behalf and on behalf of any entity on whose behalf you may act to these terms. Please read them carefully. MDaemon Technologies has the right, in its sole discretion to add to, remove, modify or otherwise change any part of this agreement, in whole or in part, at any time. If you do not agree to the modified terms, you should discontinue your use of the Service(s). Your continued use of the Service(s) constitutes your agreement to and acceptance of the terms and conditions.
MDaemon Technologies reserves the right to suspend or terminate your account if it determines, in its sole discretion, that you are violating any of these terms and conditions. MDaemon Technologies reserves the right to refuse service to anyone at any time.
MDaemon Technologies does not monitor, censor or edit the contents of individual email messages and attachments. You alone are responsible for the contents of your messages and attachments, and the consequences of any such messages and attachments. You agree that you will not use this Service(s) for chain letters, junk mail, "spamming", solicitations (commercial or non-commercial) or any use of distribution lists to any person who has not given specific permission to be included in such a process. Sending an email message, especially an advertisement, to more than 25 recipients, is considered spamming unless the individuals have specifically requested to be added to a mailing list on that topic. If you wish to send out mass emails to large numbers of recipients, please use a service built to do so.
You may not use the Service(s) to send any messages or material that are unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind or nature or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation, or contain viruses, trojan horses, worms, time bombs, cancelbots, or any harmful or deleterious programming routine. The designation of any materials as such described above is left entirely to the discretion of MDaemon Technologies.
MDaemon Technologies does not promise that the Service(s) will be 100% uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in internet connectivity that could result in the loss of your privacy, customer data, and confidential information. MDaemon Technologies is not responsible for interruption of Service(s) as a result of failures outside of MDaemon Technologies' reasonable control, your connection to the Internet, your computer, your mobile device or your systems. MDaemon Technologies will make reasonable efforts to provide seven (7) days advance notice of interruptions of Service(s) for maintenance by email and on the product web page for the Service(s). MDaemon Technologies may also perform unscheduled emergency maintenance if needed to address new security threats or other non-routine events.
OWNERSHIP AND SERVICES PURCHASED
The individual or entity set out in our records as the administrator(s) shall be the Owner of the account. Owners are responsible for all content stored or transmitted under their account and the actions of the other users of their account. The Owner shall be responsible for administering the Service(s), including adding mailboxes, adding wireless or other service components, adding storage capacity, managing settings, and configuring spam filters.
The features and details of the Service(s) governed by this Agreement are described on the product web pages setting out the particular services you have purchased. MDaemon Technologies may modify the Service(s) it offers from time-to-time.
Certain aspects of the Service(s) are provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the services provided by them. You may terminate this Agreement if such a change materially affects the Service(s).
You may not resell the Service(s) without MDaemon Technologies' prior written consent.
You are responsible for maintaining the confidentiality of your user name and password. You shall be responsible for all uses of your user name, whether or not authorized by you. You agree to immediately notify MDaemon Technologies of any unauthorized use of your user name.
TERM AND TERMINATION
The term of your Service(s) begins upon your receipt of your provision email from MDaemon Technologies ("Service Date"). You may cancel at any time with thirty (30) days prior notice to MDaemon Technologies. Otherwise, the Service(s) shall continue to be provided on a month-to-month basis.
All account cancellations must be sent to MDaemon Technologies in writing via your admin email address or faxed with a valid signature of the Owner of the account, account name, the date on which you wish to have Service(s) cancelled, and reason for cancellation. Due to security concerns, your cancellation request is verified and confirmed by MDaemon Technologies via email to the admin email address. MDaemon Technologies is not responsible for any cancellation request that it does not receive. If you do not receive a confirmation/acknowledgment email for your cancellation request, this indicates MDaemon Technologies did not receive it.
Once cancellation notice has been received, the Service(s) will be cancelled on the date specified by you or on the last day of the final billing period for your account if an exact date was not specified. Cancellations on dates prior to the last day of the final billing period are not eligible for partial refunds.
At your written request made at or within twenty (20) days of the termination of your Service(s), MDaemon Technologies will provide a complete copy of your mail data on a fee basis no later than ten (10) days following the date of the request, provided that any and all outstanding invoice(s) have been paid in full. To the fullest extent permitted under applicable law, MDaemon Technologies has no liability to you arising from a data breach or other harm arising from the shipment of the mail data to you. All data associated to your Service(s) will be permanently deleted after 30 days from the effective cancellation date. Data migration services to other platforms are not available for cancelled Service(s).
You will have a thirty (30) day free trial period upon completion of your account setup. Your charges for the Service(s) shall relate to the number of emails setup and provisioned for Service(s) on the anniversary of the Service Date. MDaemon Technologies will automatically bill the credit card on file on the anniversary of your Service Date for the next month of Service(s). All fees are billed in US dollars and are subject to change with thirty (30) days prior notice.
It is your responsibility to ensure that all billing information on file with MDaemon Technologies is accurate, and that any credit card or other automated payment method on file has sufficient funds for processing. You are solely responsible for any and all fees charged to your payment method by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, or insufficient funds and over the credit limit fees. Any account not paid in full within five (5) days will be suspended. Ten (10) days following suspension of Service(s) for non-payment, MDaemon Technologies reserves the right to terminate Service(s) for non-payment. MDaemon Technologies is not responsible for any damages or losses as a result of suspension or termination for non-payment of your account. A fifty dollar ($50.00) service fee to remove the account from suspension may apply. In addition, MDaemon Technologies reserves the right to refuse to re-activate your Service(s) until any and all outstanding invoice(s) have been paid in full.
If you believe there is an error in MDaemon Technologies' billing, you must contact MDaemon Technologies about it, in writing, within thirty (30) days of the date you are billed or charged. MDaemon Technologies' obligation to consider your claim is contingent on your providing it with sufficient facts for MDaemon Technologies to investigate your claims. You waive your right to dispute any charges or fees if you fail to notify MDaemon Technologies in writing or meet the deadline set out above. If MDaemon Technologies finds that your claim is valid, MDaemon Technologies agrees to credit your account on your next billing date.
MDaemon Technologies will only provide support to your designated administrator(s) or technical contacts on the account. All support requests must be made by your designated administrator(s) or technical contacts on your end users' behalf for security purposes. MDaemon Technologies will not provide support directly to your end users and reserves the right to suspend your account if end users repeatedly request support after being advised of this policy.
MDaemon Technologies will provide technical support to you by email, live chat or phone during regular business hours as detailed on MDaemon Technologies' website. MDaemon Technologies will always do its best to provide fast, friendly, and helpful support over the telephone and live chat, but no guarantee is made as to the availability or accessibility. Urgent support for critical issues is provided twenty-four (24) hours a day, three-hundred-sixty-five (365) days a year by calling toll free phone that is provided to you upon completion of your setup. If you request more than two (2) hours of email client account setup/configuration support in the course of one year, time beyond said two hours will be billed hourly at the rate of one hundred fifty US dollars per hour ($150.00US/hr).
MDaemon Technologies performs data backups on a "snap shot" basis at a specific moment. Therefore MDaemon Technologies may not create a backup of every item that is sent, received or stored. Backups will only capture those items (including mailboxes and public folders) that are present during the time of the backup. Items are not permanently deleted from a mailbox and can be recovered. Data on backups may be retrieved only for a limited number of days. Copies of all email received via SMTP can be recovered by you via the administrative control panel for up to thirty (30) days from the date received.
The laws of the State of Texas will apply to any disputes arising out of or relating to these terms or the Service(s). All claims arising out of or relating to these terms or the Service(s) will be litigated exclusively in the federal or state courts of Tarrant County, Texas, USA.
If you do not comply with these terms, and MDaemon Technologies does not take action right away, this does not mean that MDaemon Technologies is giving up any rights such as taking action in the future.
If it turns out that a particular term is not enforceable, this will not affect any other terms.
DISCLAIMER OF WARRANTIES
THE LAW OF SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION OF LIABILITY OR THE EXCLUSION OF WARRANTIES, CONDITIONS, ENDORSEMENTS, GUARANTEES, OR REPRESENTATIONS IN CONTRACTS WITH CONSUMERS AND TO THE EXTENT YOU ARE A CONSUMER THESE EXCLUSIONS MAY NOT APPLY TO YOU.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, EXCEPT AS EXPRESSLY SET OUT IN THIS AGREEMENT, ALL CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS, OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY CONDITIONS, ENDORSEMENTS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, OR TITLE, OR ARISING FROM A STATUTE OR CUSTOM OR A COURSE OF DEALING OR USAGE OF TRADE, AND ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, ENDORSEMENTS OR GUARANTEES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
Mission Critical Applications. THIS SERVICE(S) AND ANY PART THEREOF, IS NOT SUITABLE FOR USE IN MISSION CRITICAL APPLICATIONS OR IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS, INCLUDING, WITHOUT LIMITATION, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, AND LIFE SUPPORT OR WEAPONS SYSTEMS.
LIMITATION OF LIABILITY
SOME COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CONSEQUENTIAL, INDIRECT OR OTHER DAMAGES IN CONTRACTS WITH CONSUMERS AND TO THE EXTENT YOU ARE A CONSUMER THE LIMITATIONS OR EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU.
(a) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO THE SPECIFIC REMEDIES SET OUT IN THIS AGREEMENT, IN NO EVENT SHALL MDAEMON TECHNOLOGIES BE LIABLE FOR ANY OF THE FOLLOWING TYPES OF DAMAGES: CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR AGGRAVATED DAMAGES, DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUES, FAILURE TO REALIZE ANY EXPECTED SAVINGS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF BUSINESS OPPORTUNITY, OR CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE ANY DATA, PROBLEMS ASSOCIATED WITH ANY APPLICATIONS USED IN CONJUNCTION WITH THE SERVICE(S), DOWNTIME COSTS, LOSS OF THE USE OF THE SERVICE(S) OR ANY PORTION THEREOF, COST OF SUBSTITUTE GOODS, COSTS OF COVER, FACILITIES OR SERVICES, COST OF CAPITAL, OR OTHER SIMILAR PECUNIARY LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE(S) INCLUDING THE USE OR INABILITY TO USE, PERFORMANCE OR NON-PERFORMANCE OF THE SERVICE(S), WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN, AND EVEN IF MDAEMON TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) To the maximum extent permitted by applicable law, in no event shall the aggregate liability of MDaemon Technologies exceed the greater of: (i) the amount paid by You for the Service(s) that gave rise to the claim; and (ii) five (5) United States dollars.
(c) To the maximum extent permitted by applicable law, notwithstanding anything else in this Agreement, to the extent MDaemon Technologies is liable to You, MDaemon Technologies shall only be liable for damages incurred during the period of such failure, delay or non-performance of the Service(s).
(d) Nothing in this Section limits MDaemon Technologies' liability to You in the event of: (i) death or personal injury to the extent resulting directly from MDaemon Technologies' negligence; or (ii) any intentional fraudulent act or intentional fraudulent omission of MDaemon Technologies.
(e) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY SHALL BE LIABLE TO THE OTHER ONLY AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER WHETHER IN CONTRACT, TORT, OR OTHERWISE.
(f) IN NO EVENT SHALL ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, DISTRIBUTOR, SUPPLIER, SERVICE SUPPLIER, INDEPENDENT CONTRACTOR OF MDAEMON TECHNOLOGIES HAVE ANY LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT.
(g) YOU ACKNOWLEDGE AND AGREE THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS AGREEMENT CONSTITUTE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS: (i) THE FEES AND OTHER TERMS IN THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT; AND (ii) MDAEMON TECHNOLOGIES' ABILITY TO OFFER AND YOUR ABILITY TO USE THE SERVICE(S) UNDER THIS AGREEMENT WOULD BE IMPACTED.
You agree that the MDaemon Technologies shall not be liable for your actions, inactions, negligence, or intentional misconduct. You agree to release, indemnify, and hold MDaemon Technologies, its contractors, agents, employees, officers, directors and affiliates harmless from all claims, judgments, damages, costs (including reasonable lawyers' fees and disbursements) and settlements for third party claims relating to your use of the Service(s) or arising under this agreement, including without limitation, infringement by you or someone else using your account, of any intellectual property or other proprietary right of any person or entity, or from the violation of any term or condition of this agreement. If MDaemon Technologies is involved in a suit involving a third party and which is related to the services under this agreement, MDaemon Technologies may seek written assurances from you in which you promise to indemnify MDaemon Technologies harmless from the costs and liabilities described in this paragraph. Such written assurances may include the posting of performance bonds or other guarantees. Your failure to provide such assurances may be considered a breach of this agreement. You agree to defend, indemnify and hold MDaemon Technologies harmless against liabilities arising out of: (1) Any injury to person or property caused by any products sold or otherwise distributed in connection with the Service(s); (2) Any material supplied by you infringing or allegedly infringing on the proprietary rights of a third party; (3) Copyright infringement and (4) Any defective products sold by you using the Service(s).