MAILCHANNELS SERVICES AGREEMENTTHIS AGREEMENT (the “Agreement”) dated for reference the date you purchased a subscription to MailChannels Cloud (the “Effective Date”) is entered into by and between MAILCHANNNELS CORPORATION, (“MailChannels” or “We” or “Us”), a corporation under the laws of Canada having its principal mailing address at #142 – 757 Hastings Street W, Vancouver, BC, Canada V6C 1A1, and you (“Customer”). WHEREAS: A. MailChannels is the owner, developer and operator of the Service (as defined herein). B. Customer wishes to acquire rights to use the Service in accordance with the terms of this Agreement. NOW THEREFORE the parties hereby agree as follows:
1. Definitions. In this Agreement:(a) “Active” means Customer has sent at least one email message through the Service within the past 30 days. (b) “Documentation” means all material other than the Service furnished by MailChannels in conjunction with the Service, including without limitation the functional specifications for the Service, API documentation, user interface guides, setup guides, and the knowledge base. (c) “Error” means any failure of the Service to operate in conformance with all Documentation and specifications applicable thereto. (d) “Service” means the email sending service described known as “MailChannels Relay Service” or “Relay”; any services used by the Service; and including all documentation, instructions, manuals, diagrams and other materials, in whatever medium or format, pertaining to the foregoing and any corrections, improvements, authorized modifications, and updates thereto. (e) “SMTP” means the Simple Mail Transport Protocol as defined by the Internet Engineering Task Force, and any extensions or revisions thereof. (f) “Spam” is any email message that is sent to a recipient who i) did not verifiably grant deliberate, explicit, and still-revocable permission to receive said message, and ii) for which the recipient’s personal identity and context are irrelevant because the message is equally applicable to many other potential recipients. (g) “Messages“ means the number of times that you attempt to deliver an email message through the Service, regardless of whether delivery succeeds. For avoidance of doubt, reasons for delivery failure can include anti-abuse provisions such as rate-limiting. 2. Term. The term of this Agreement (the “Term”) shall commence as of the Effective Date and shall continue so long as Customer remains Active. Notwithstanding the foregoing, MailChannels may terminate this Agreement at any time by notice in writing to Customer. Upon termination, Customer’s right to use the Service shall immediately come to an end, and MailChannels may delete any and all data associated with Customer including any logged messages, quarantined messages, performance data, statistics, or other diagnostic data. If MailChannels terminates this Agreement prior to the end of a period for which Customer has already paid Fees in accordance with this Agreement, then MailChannels will refund Customer such fees on a pro-rated basis, unless MailChannels, acting reasonably, believes that Customer has materially breached any term or condition of this Agreement including but not limited to terms and conditions relating to security and abuse. 3. Changes. MailChannels may change the terms of this Agreement from time to time by providing Customer with notice of such change. If MailChannels changes the terms of this Agreement, then Customer may at its option terminate its use of the Service (as it may always do so in accordance with section 2) instead of accepting such changed terms. MailChannels may change the Service in any way and at any time, with or without notice to Customer. 4. Account and Password. On the Effective Date, MailChannels will supply Customer with an account name and password (the “Authentication Credentials”), which are to be kept strictly confidential by Customer and not shared with any third party, except as may be strictly necessary in order for Customer to carry out its business (for example, by sharing the Authentication Credentials with a contractor or employee). If the Authentication Credentials are stolen, lost, copied, or otherwise compromised, then Customer shall immediately notify MailChannels of such theft, loss, copying or compromise, and MailChannels shall in any case not be responsible for any unauthorized use of Customer’s account relating to the same.
5. Payment of Fees. Customer will pay MailChannels a fee (the “Service Fee”) for use of the Service and the Documentation in respect of each period during the Term based on the pricing schedule set out on the MailChannels web site, as amended from time to time, with interim payments from time to time in accordance with that schedule (the “Price Schedule”). Within the Price Schedule, the term Messages shall have the same meaning as the term is defined within this Agreement. Customer will pay the Service Fee, Support Fees, and any other Fees set out in this Agreement within 30-days of receipt of an invoice therefor. Customer will pay any federal or other taxes, duties, licenses, fees, excises or tariffs in connection therewith. Customer will pay MailChannels the License Fee and the Support Fees by wire transfer or credit card. Customer shall be responsible for all charges relating to Messages sent via SMTP connections authenticated with Customer’s credentials (i.e. username and a valid password) whether or not the Messages were the result of any oversight, security compromise, or intentional or unintentional abuse of Customer’s systems. For avoidance of doubt, MailChannels bills for all Messages, even those which are not accepted for delivery.6. Support. Customer may obtain support from MailChannels by sending an email to [email protected] MailChannels will create a support ticket for each support request, and will handle requests in a workmanlike manner during regular business hours. 7. Ownership. MailChannels retains all right, title and interest in and to the Service and all Documentation, including all copyrights and other intellectual property rights. All rights not expressly granted to Customer herein are reserved by MailChannels. Customer warrants that it has the right to use all material such as but not limited to trademarks and copyrighted content in any email messages sent through the Service by Customer.
8. Right to Inspect and Review Customer Email. MailChannels reserves the right to view, copy, and internally distribute content from Customer’s email messages and account to create algorithms and programs (“Tools”) that help MailChannels spot abusive accounts and spam. MailChannels uses these Tools to find customers who violate our terms of service or laws. MailChannels warrants that it will use best practices to maintain the privacy of Customer’s email messages, including but not limited to ensuring that all MailChannels employees and contractors sign non-disclosure agreements. CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT MAILCHANNELS MUST BE ABLE TO VIEW, COPY AND INTERNALLY DISTRIBUTE CONTENT FROM CUSTOMER’S EMAIL MESSAGES IN ORDER TO ENSURE THE CONTINUOUS AVAILABILITY OF THE SERVICE BY LIMITING REPUTATIONAL DAMAGE CAUSED BY SPAM AND OTHER ABUSE, AND THAT MAILCHANNELS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT OTHERWISE.
9. Rules and Abuse. Customer acknowledges that it will nota) knowingly use the Service to distribute Spam; b) put into any email any material, including graphics or other content, that is not created by Customer, not provided for Customer’s use, or that would violate any other party’s rights; c) use any misleading or incorrect names, addresses, email addresses, subject lines, or other misleading or incorrect information in email messages sent using the Service; d) share Customer’s Authentication Credentials with any third party; e) allow a third party to use the Service; or, f) resell the Service. Customer will identify each user or other sending entity who sends email through the Service by including an identifying header or other identifier as may be required by MailChannels, and will make all reasonable attempts to ensure that such identifier uniquely identifies each user or sending entity. Customer acknowledges that the accurate identification of the responsible sender of each message helps MailChannels provide Customer with reliable email message delivery, and that failure to provide accurate sender identification information in messages may imperil MailChannels’ ability to provide reliable email delivery for Customer.
10. Rate Limiting and Blocking. MailChannels may, at its sole discretion, limit the volume of email messages Customer can deliver through the Service. MailChannels may limit email volume by queuing Customer email messages internally, or by temporarily rejecting requests by Customer’s mail servers to send email through the Service (in which case Customer’s own mail servers may queue said messages for later delivery). MailChannels may block any message Customer attempts to submit to the Service, for any reason whatsoever, with or without notifying Customer of such blocking. Customer is advised to obtain alternative email sending services to ensure it is continuously able to send email should the Services cause Customer’s email messages to be rate limited at any time. Customer is further advised that nothing in this Agreement prevents Customer from obtaining additional email sending services from other providers at any time, nor does anything in this Agreement prohibit Customer from sending email directly to recipients on the Internet from Customer’s mail servers.11. Reverse Engineering Prohibited. Customer agrees not to disassemble, decompile, or reverse engineer any software provided to Customer in conjunction with the Service, such as but not limited to scripts provided via the Service web site. 12. Compliance with Laws. Customer represents and warrants that its use of the Service will comply with all laws and regulations. Customer is responsible for determining whether the Service is suitable for Customer’s use in light of any laws or regulations including but not limited to HIPAA, GLB, EU Data Privacy Laws. If Customer is subject to any such laws or regulations and Customer uses the Service, then MailChannels shall not be liable if the Service fails to meet the requirements of such laws or regulations.
13. Professional Services. From time to time, MailChannels may agree with Customer in separate statements of work to provide engineering services to Customer. Title to any developments created by MailChannels for Customer as part of any such statements of work will belong to MailChannels unless otherwise agreed upon in writing. MailChannels’ standard rate of $187.50 per developer per hour for such work shall apply.14. Uncertain Nature of Spam and Virus Filtering. Customer acknowledges that the content and form of spam, viruses, malware and phishing attempts are varied and ever-changing and that MailChannels does not warrant that the Service will filter all spam, viruses, malware and phishing attempts or that it will not, in some cases, filter content that Customer or its users may not consider to be spam, a virus or a phishing attempt. Customer further acknowledges that the operation of IP reputation systems including without limitation DNS blacklists, IP blacklists, DNS blacklists, and proprietary lists maintained by service providers is complex and ever-changing, and that MailChannels makes no warranties that the Service will be able to deliver every email message submitted to the Service for delivery by Customer.
15. No MailChannels Warranties. Except as expressly set forth in this agreement, MailChannels hereby disclaims all other warranties express, implied, or statutory, including, without limitation, any warranties of merchantability, fitness for a particular purpose, title, accuracy of informational content, system integration, and non-infringement of third party rights, and any warranties against interference with enjoyment of the Service. Without limiting the foregoing, MailChannels specifically disclaims all representations and warranties that the Service, MailChannels’ efforts, or any system with which the Service is used will meet requirements, fulfill any particular purposes or needs, or that the operation of the Service will be uninterrupted or error-free. Customer acknowledges that the content and form of spam, viruses and phishing attempts are varied and ever-changing and that MailChannels does not warrant that the Service will identify and/or filter all spam, viruses and phishing attempts, accurately report all sender data, or that it will not, in some cases, misidentify content or filter content that Customer or its customers may not consider to be spam, a virus or a phishing attempt. Customer assumes the risk of any loss related to any response by its customers to any message or services advertised in any message received from a third party. To the extent MailChannels may not, as a matter of applicable law, disclaim any warranty, the scope and duration of such warranty shall be the minimum permitted under such law.16. Customer Warranty. Customer warrants and agrees that it shall not utilize the Service except as expressly authorized by this Agreement. Any use beyond the scope of this Agreement shall constitute a material breach of this Agreement. 17. Ownership of Confidential Information. All information that MailChannels discloses to Customer with respect to the Service or the Documentation that MailChannels identifies to Customer as confidential and proprietary information (“Confidential Information”) including information in computer software or held in electronic storage media shall be and remain at all times the property of MailChannels and Customer will not disclose or allow to be disclosed any Confidential Information to any third party without the prior written authorization of MailChannels unless required to do so by law. The terms of this Agreement and any confidential information relating to the parties that may be furnished or revealed pursuant to this Agreement are deemed to be confidential. 18. Legends and Notices. Customer will maintain any proprietary legends or notices (whether of MailChannels or a third party) contained on any Confidential Information. 19. Liability Limitation. To the maximum extent permitted by law, Customer assumes full responsibility for any loss resulting from its use of the Service and Documentation. MailChannels shall not be liable for any indirect, punitive, special, or consequential damages under any circumstances, even if they’re based on negligence or if MailChannels has been advised of the possibility of those damages. 20. No Liability to End Users. MailChannels disclaims all liability to or in respect of Customer’s end users or any other third party and, without limiting the generality of the foregoing, in no case will MailChannels be liable for any representation or warranty made to any third party by Customer or any agent of Customer. CUSTOMER ACKNOWLEDGES THAT IF THIS LIMITATION WERE NOT INCLUDED HEREIN MAILCHANNELS WOULD NOT ENTER INTO THIS AGREEMENT OR PROVIDE THE SERVICE OR THE DOCUMENTATION TO CUSTOMER, AND ACCORDINGLY CUSTOMER COVENANTS THAT IT WILL MAKE NO CLAIM IN EXCESS OF THIS LIMITATION. 21. Consequential Damage Limitation. Except for willful or intentional misconduct, under no circumstances will MailChannels be liable to Customer or any other party for any indirect, special, economic or consequential damages (including without limitation lost profits) arising out of this Agreement, even if advised of the possibility of such damages. 22. Indemnity. Customer will indemnify MailChannels from and against any claims, proceedings, demands, liabilities, losses, damages, judgments, costs and expenses including, without limitation, legal fees and disbursements, arising out of any third party claim against MailChannels resulting from Customer’s use of the Service or the Documentation OR RESULTING FROM ANY UNAUTHORIZED USE OF THE SERVICE RESULTING FROM ANY BREACH OF CUSTOMER’S AUTHORIZATION CREDENTIALS TO A THIRD PARTY. 23. Subpoena Fees. If MailChannels is required to provide information in response to a subpoena relating to Customer’s use of the Service, then MailChannels may charge Customer for its costs for complying with that subpoena.
24. Marketing: Customer will co-sign a press release to be prepared and distributed by MailChannels at MailChannels’ cost highlighting the significant improvements provided by MailChannels’ new anti-spam system. Customer will, if requested by MailChannels to do so, participate without charge in a case study on the use of Traffic Control that MailChannels may publish on its website or in other media, with such identification of Customer as Customer, acting reasonably, approves. Customer hereby authorizes MailChannels to display Customer’s logo and other identifying corporate marks and/or brands on MailChannels’ website or in other media.25. Entire Agreement. This Agreement and the attachments hereto constitute the complete agreement between the parties and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. Any modification, amendment or other alteration of any provision of this Agreement will be effective only if in writing and signed by the parties hereto. 26. Assignment. The rights and obligations hereunder shall enure to the benefit of the lawful successors of the parties hereto. Customer may not assign or encumber its rights hereunder without the prior written approval of MailChannels.s 27. Jurisdiction. The Province of British Columbia’s laws, except for conflict of laws rules, will apply to any dispute related to this Agreement. Any dispute related to this Agreement, or the Service itself, will be decided by the provincial and federal courts located in Vancouver, British Columbia, Canada, and each party will be subject to the jurisdiction of those courts. 28. Force Majeur. MailChannels will not be held liable for any delays or failure in performance of any part of the Service, from any cause beyond Our control. This includes, but is not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, riots, fires, earthquakes, nuclear accidents, zombie apocalypse, floods, strikes, power blackouts, volcanic action, unusually severe weather conditions, and acts of hackers or third party Internet service providers. 29. Survivability. Even if this Agreement is terminated, the following sections will continue to apply: Ownership, Right to Inspect and Review Customer Email, Compliance with Laws, Liability Limitation, Indemnity, Subpoena Fees, Consequential Damage Limitation, No MailChannels Warranties, Jurisdiction, Severability, and Entire Agreement. 30. Severability. If any covenant or provision herein or any portion of any covenant or provision is determined to be void or unenforceable, in whole or in part, it will not be deemed to affect or impair the enforceability or validity of the balance of such covenant or provision or any other covenant or provision of this Agreement or part thereof. 31. Currency. All monetary references in this Agreement and any and all Schedules hereto are in United States funds unless said monetary references are specifically identified as being denominated in another currency. IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the Effective Date.