Terms of Service (TOS)
VIRTEXXA Cloud Services SRL Terms of Service for Everymail.Net
(short Everymail) 2011/2017/Version 1.0.1
Thank you for choosing Everymail! This is a contract between Virtexxa Cloud Services SRL as operator of Everymail.Net (further referred as Everymail, us, we or our) and the entity set out in our records as the owner of the account (you or your). This contract covers all of the services provided by Everymail. The services are set out on our “Plans and Pricing” page (Services). This contract is effective on the date you click “I accept” on our website as we record that date in our records (Effective Date).
1. The Services
We work hard to offer you reliable email services. As a result, we continually innovate. These innovations may be applied to the Services from time-to-time (Updates). While we will use commercially reasonable efforts to determine whether these Updates will disrupt the Service, we cannot guarantee that they won’t and have no liability if they do. Some Updates may involve transition to a new interface, or elimination of certain features. If you disagree with these changes, you may terminate your contract with us and simply stop using the Services.
The Services may incorporate components provided to us by third parties (Third Party Products). We will use commercially reasonable efforts to make Third Party Products available to you. However the owners of the Third Party Products may cease to make them available to us, or do so on terms that are unreasonable to us. We have no obligation to replace the Third Party Products in this event, nor shall you be entitled to terminate this contract,
It is important to understand that the Services come with certain capacity restrictions (Quota). These restrictions are set out on the Plans and Pricing page. If you exceed the Quota your ability to use the Service will be suspended. This means that you will neither be able to send or receive emails. You agree to monitor your use of the Services to ensure that you meet the Quota. We provide tools to help you do so. Should you exceed the Quota, you have the option of choosing a different plan and increasing your Quota.
Our right to change the Plans and Pricing pages includes the rights to set limits on aspects of the Services that currently have no limits. We will determine whether your use of the Services is reasonable by comparing it to our other customers use. If we determine that your use is unreasonable, and you are able to modify your use so that it is reasonable within the time period we give you, you may continue to use the Services. Otherwise, we will terminate your right to use the Services.
The Services are regularly backed up. This does not mean that the Services may be used for storage, or that these backups will always be available to you, or successful. We have designed backups for disaster recovery, so if we need to restore the Services from backup, your data may be changed, and some may not be available. As a result of the backup process, there may be a gap between the time our backup process runs, and the time your data is placed on our servers. This may result in lost data if a restore is needed within that period of time. We have no obligation to maintain backups for any particular period of time, or comply with any data retention laws that may be specific to your business. If we suspend or terminate the Service, if you terminate it, or you fail to use the Service for a period of time during which our backup system refreshes, your data may be deleted. Deleted data is almost never recoverable, and we have no obligation to attempt to recover it.
We use industry standard methods to secure the Services. You should not rely on this security to transmit confidential, secret or other information that would cause damage if it were made public. It is important to understand that the Internet is inherently insecure, and that in spite of our efforts, your information may be disclosed.
We scan content addressed to, and within, the Services for spam and viruses. We do so to protect our network, comply with laws, and ensure compliance with this contract. You agree that we may conduct this scanning, that even if this scanning causes the Service to run slowly, interferes with the operation of third party applications, or results in the modification or misdelivery of email, it is not a breach of this contract.
2. Our Customers
This contract is between Everymail and you. You must be over 18 years of age on the Effective Date in order to use the Service. You may not allow others to access your email or use it or the Services. It is your obligation to keep your passwords confidential and not allow others to access or use the Service on your behalf by providing them your passwords, or otherwise. If the Service is accessed using your id and password, we are entitled to assume that that access is by you, and you are responsible for any acts that take place as a result. It is very important that you contact us immediately if your password is disclosed, or you believe the Service has been accessed in an unauthorized manner. You may not reproduce, duplicate, copy, sell or resell the Services.
The interfaces you may use to interact with the Services are set out on the Plans and Pricing page. You may not access, or facilitate access to, the Services any other way.
When you signed up for the Service you provided us with information necessary for us to administer and provide the Service to you (Registration Information). You agree that the Registration Information is accurate, that you will keep it up-to-date, and that we are entitled to rely on it to administer and provide the Services.
We are all required to obey the laws and ensure that we comply with the community standards generally agreed upon by the Internet community. It is your obligation to use the Services in a manner that strictly complies with this contract, the laws of your jurisdiction, the laws of ours (Austria), and our use and privacy policies. While we’ve attempted to codify the Internet’s community standards in our use policy, there are occasions where those standards may have changed, evolved or been newly agreed upon. In that case, we may determine that your use of the Services contravenes these standards. If you are able to modify your use within the time period we set out, we will allow you to continue to use the Services, if you are not, or it is impossible, we may terminate this contract and your right to use the Services.
You are responsible for all of the information you transmit using the Services (Content). Other than as set out in “Everymail’s license to you” below, we claim no ownership in the Content. You are responsible for what happens to your Content. This means that it is your responsibility to only use the Services to transmit Content in ways that are legal, to only use Content you have the right to use, and to transmit Content in such a way that it does not cause harm to our business. It is your sole and exclusive responsibility to ensure, and you represent and warrant to us, that you have all the rights necessary to transmit the Content and grant to us the rights set out in “your license to Everymail” below.
3. Support and Frequently Asked Questions
The description of our standard support for the Services you purchase is set out on the applicable Plans and Pricing page (Standard Support). This Standard Support is provided as part of the Services. At your request, we may agree to provide support to you above and beyond the Standard Support (Additional Support). Additional Support is provided on a reasonable efforts basis, and at our then current consulting rate.
When you request Standard Support or Additional Support, you grant us the authority to access, review and possibly temporarily store data (including Content) on the Service. We will use reasonable efforts to maintain the integrity of this data, but are not liable, and expressly disclaim any responsibility for corruption, deletion or mishandling of it.
We have made available support FAQ (Support Forums). You should be aware that these forums are offered as a convenience to you and that we make no warranty regarding the options or solutions offered in them. Even though we provide the Support Forums to you, it is your sole and exclusive obligation to learn how to properly use the Services. When you contribute to the Support Forums, you grant us ownership of any information you provide, and, if you provide a video to the Support Forum, we own that content.
The term will begin on the Effective Date and continue for the term that you chose during sign up (Initial Term). Upon expiration of the Initial Term, the contract will terminate automatically unless renewed by you in writing 30 days prior to the expiration date (Renewal Term), or as otherwise set out in this contract. Together the Initial Term and Renewal Terms are referred to in this contract as the Term.
You have the ability to change the Services you purchase from us. If you do so, the Term may change. You agree to this change when you select new Services.
The fees for the Service are set out on our “Plans and Pricing” page (Fees). We may change these Fees upon 30 days notice to you. Notice will be provided by sending an email to you. If you disagree with any change, you may cancel the Service prior to your renewal term.
Fees must be paid by credit card or Pay Pal (Account). Fees are paid in advance, and deducted from your Account approximately five days before your next term. If your Account does not contain sufficient funds to pay the Fees, the Services may be suspended, and terminated as provided in this contract, without notice. It is your sole responsibility to ensure that you have sufficient funds in your Account to avoid termination. You may not set off or deduct the Fees for any reason. We will pay taxes assessed on our income. You are responsible for any other taxes, and they will be added to the Fees if required by law or regulation.
6. Termination and Inactivity
Either party may terminate this contract by providing the other with written notice no later than thirty days prior to any Renewal Term.
In addition, either party may terminate this contract after providing the other with written notice of a material breach and ten days opportunity to cure, unless a breach is incapable of cure. A material breach shall be determined from the perspective of a reasonable business in Austria.
We may terminate this contract without any prior notice to you if:
- you, or anyone accessing the Services through you, violates our use policy, and that breach is not cured according to its terms;
- you file for bankruptcy or reorganization, or such an action is filed against you;
- you do not provide us with technical information necessary for us to implement the Service in a commercially reasonable amount of time;
- you do not have the level of technical expertise necessary to use the Services;
- you defame or harass our support staff, or use profanity in your interaction with them; or
- you fail to pay Fees when due.
If you do not renew your account upon the expiration of the Initial Term or any Renewal Term, your account will be suspended for thirty days (Grace Period). During the Grace Period, you will have the ability to log into the Services, but you will not have the ability to send or receive email, nor restore the Services from backup. After the expiration of the Grace Period, you will have an additional ninety days to redeem your account (Redemption Period). The processes for gaining access to your account during the Grace and Redemption Periods are set out on our Plans and Pricing pages. During the Redemption Period, in addition to the restrictions imposed during the Grace Period, you will not have the ability to log in to your account. After the expiration of the Redemption Period, your account will be deleted and the email addresses assigned to you will be recycled by us and may be used by someone else. In addition, following the expiration of the Redemption Period, this contract will be terminated. During the Grace and Redemption periods, backups will be suspended, and the Services will not be backed up.
Prior to termination of this contract for any of the reasons set out in these paragraphs, it is your sole and exclusive obligation to download, or otherwise secure access to, your data. We shall have no obligation to assist with this process. UPON TERMINATION ALL DATA ON THE SERVICES WILL BE DELETED. THIS INCLUDES BACK UP SERVICES. YOU WILL HAVE NO ACCESS WHATSOEVER TO DATA AFTER THAT TIME.
We use security measures standard in the email industry to secure the Services. You agree that we are not responsible for the security of your email, or information, once it is transmitted outside the Services. Should the security of the Services be breached, we will notify you through your control panel as soon as is commercially practicable. You agree to notify us, though your control panel, within 24 hours of any breach of the Services you discover. For the purposes of this contract only, the term “breach” shall mean unauthorized access to our network in a manner that a reasonable email provider would believe may lead to disclosure of your data.
It is your responsibility to ensure that access codes and passwords are secure. Other than as a result of a breach described above, if the Service is accessed by someone possessing these credentials, we may assume that you have authorized the access, and you agree that we have no liability for any activity undertaken as a result of such access, and that you are solely responsible for it.
8. Confidentiality and Review
We do not routinely review the specific content of data transmitted using the Service. However, we do review the content in a general manner to ensure that it is secure, virus free and meets our network configuration needs. There may be a delay in processing your email as a result of such a review, and if we determine that email you send, or that is addressed to you, may harm our network, it may be deleted without your knowledge. You expressly consent to this review and deletion.
We agree to keep the data you transmit using the Service confidential and to only disclose it as set out in this contract. You agree to do the same with our confidential data, which is made up of this contract, our network configuration, security protocols, software, code and technology.
We each warrant to the other that:
- both parties have the power, authority and legal right to enter into this contract; and
- both parties have the power, authority and legal right to perform their obligations under this contract and all incorporated provisions.
You represent and warrant that:
- you have the experience and knowledge necessary to use the Service;
- in using the Service, including, but not limited to, uploading and downloading data, sending and receiving mail, you will not violate any applicable laws and regulations;
- that you are the owner of any such data, or have the right to upload, download and/or process the data using the Service;
- that no data uploaded, downloaded and/or processed using the Service
- contains personal information subject to European Union Directive 95/46/EC;>
- is subject to the Health Insurance Portability and Accountability Act (HIPAA); or
- is subject to the Sarbanes Oxley Act;
- that you will make backup copies of your data even if you purchase “back up” services from us; and/or
- that on the Effective Date you are over the age of 18.
You expressly warrant and represent that you own the entire right, title and interest to, or have an appropriate license to use all materials provided to us, or those which may be accessed or transmitted using the Service. You also warrant and represent that, to the extent you do business with other parties using the Service, those parties have the same ownership interests in the materials provided to you, or accessed via the Service.
THE SERVICES ARE PROVIDED AS-IS. YOUR USE OF THE SERVICE IS AT YOUR OWN RISK.
EXCEPT AS EXPRESSLY SET OUT HEREIN, WE DO NOT MAKE, AND DISCLAIM ANY AND ALL EXPRESS, AND/OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT WARRANT THAT THE SERVICE WILL MEET ANY OR ALL OF YOUR EXPECTATIONS; WILL OPERATE IN ALL OF THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU; OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE; OR THAT MATERIALS POSTED ON OUR FAQ, SUPPORT, OR OTHER SELF HELP WEBSITES, OR IN ANY “HOW-TO” TUTORIALS ARE ACCURATE. NO EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY WARRANTY ON OUR BEHALF.
YOU AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY THE LAW GOVERNING THIS CONTRACT, OR ANY OTHER LAW APPLIED TO THIS CONTRACT, YOU WILL NOT UNDER ANY CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, HOLD US OR OUR LICENSORS, AGENTS, EMPLOYEES, OFFICERS AND/OR THIRD PARTY VENDORS, LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU OR ANY OTHER PARTY. YOU AGREE THAT THE FOREGOING LIMITATIONS APPLY WHETHER IN AN ACTION IN CONTRACT OR TORT OR ANY OTHER LEGAL THEORY. THESE LIMITATIONS ALSO APPLY EVEN IF YOU INFORM US OF SUCH DAMAGES, OR IF THE CIRCUMSTANCES SHOULD INDICATE THAT SUCH DAMAGES WOULD BE SUSTAINED BY YOU OR A THIRD PARTY. IN NO EVENT WILL WE BE LIABLE TO YOU IN THE AGGREGATE WITH RESPECT TO ANY AND ALL BREACHES, DEFAULTS, OR CLAIMS OF LIABILITY UNDER THIS CONTRACT OR ANY OTHER THEORY FOR AN AMOUNT GREATER THAN THE FEES ACTUALLY PAID BY YOU TO US FOR THE THREE MONTH PERIOD PRECEDING A CLAIM GIVING RISE TO SUCH LIABILITY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGE; YOU AGREE THAT IN THOSE JURISDICTIONS OUR LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
Each party shall indemnify and hold the other harmless from, and at its own expense agrees to defend, or at its option to settle, any claim, suit or proceeding brought or threatened against the indemnitee so far as it is based
- on a violation of a representation or warranty set out in this contract;
- the party’s use of the Service in violation of the use policy;
- the party’s breach of another entity’s intellectual property rights; and
- in the case of Everymail, Everymail’s violation of another party’s E.U. registered patent or trademark rights if any such claim is based on those aspects of the Service which were solely created by Everymail.
This paragraph will be conditioned on the indemnitee’s notifying the indemnitor promptly in writing of the claim and giving the indemnitor full authority, information, and assistance for the defense and settlement thereof. The indemnitee shall have the right to participate in the defense of the claim at indemnitee’s expense. The indemnitor agrees not to settle a claim without indemnitee’s approval if such a settlement contains an admission of liability or fault that could reasonably be attributed to indemnitee.
For the Term, we grant to you a non-exclusive, non-transferable, worldwide, royalty-free license to use the Service as set forth on our Plans and Pricing page as long as you comply with the provisions of this contract. For the Term, you grant to us a non-exclusive, transferrable, worldwide, royalty-free license to use any data you place on the Service. You further assign to us, a royalty-free, worldwide, right, title and interest in all intellectual property to information provided to us in the Support Forums. We shall be entitled to use such information on an unrestricted basis for any reason without your consent or compensation to you.
Together with the use and privacy policies, this contract is the only agreement between us. It supersedes any oral or written statements or contracts about its subject. If a court holds that part of this contract is invalid, the remaining parts of the contract will continue to bind the parties. The titles set out above the paragraphs don’t limit or govern the terms.
This contract is between you and Everymail. It is not for the benefit of any other person, except permitted assignments expressly allowed in it.
Should this contract be translated into another language, and there is a difference between that translation and this contract, the English version shall prevail.
Any notice to be given by either party to the other may be sent by either email, fax or recorded delivery to the address of the other party as appearing in this contract or such other address as such party may from time to time have communicated to the other in writing. Notices shall be deemed received upon confirmation of receipt.
Termination notices must be provided to us as set out in paragraph 6.
Legal Notices to us, which are effective only upon acknowledged receipt, shall be provided to us as follows:
With a copy, which shall not constitute notice to:
W. David Snead, P.C.
Attention: Everymail Legal Notices
P.O. Box 48010
Washington, D.C. 20002
Each of our rights and obligations set out in this contract are undertaken as independent contractors. Neither of the parties shall have the right to create an obligation on behalf of the other.
Notice to California Customers: Please be advised that, as may be applicable to you under California law, if Customer is unsatisfied with the manner in which we respond to a complaint regarding the Services, Customer may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 1020 N. Street, #501, Sacramento, CA 95814, or by telephone at 1-916-445-1254.
Except for the obligation to pay the Fees, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, change in government regulation, or imposition of a new regulation, shortages of supplies, riots, war, fire, epidemics, failures of telecommunication carriers, delays of common carriers, or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day to day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible, but in no event less than ten days from the beginning of the event.
This contract shall be governed by the internal laws of the State of Delaware, excluding its choice of laws. All disputes concerning this contract shall be brought before the U.S. District Court for the District of Delaware located in Wilmington, Delaware. The parties agree that venue and jurisdiction is proper before this court, and agree not to contest notice from it. The U.N. Convention on the International Sale of Goods shall not apply to this contract.
No waiver of rights under this contract, or any of our policies, or other agreement between the parties shall constitute a subsequent waiver of this or any other right under this contract.
This contract may not be assigned by you. It may be assigned by us.
Should this contract be terminated, the following clauses will remain: Paragraph 9: disclaimer of warranties and limitation of liability; Paragraph 10; Paragraph 12: language, notices, choice of law, venue and jurisdiction; assignment, construction, this paragraph.