Net Locations and Customer (as identified on the Services Order Form) agree to the following Standard Terms and Conditions and Service Level Agreements, as may be supplemented by any additional terms attached hereto (the "Terms and Conditions"). The Online Services Order Form ("Order Form") executed by Customer and these Terms and Conditions and Service Level Agreements (the "SLA") are collectively referred to as the "Agreement". The SLA defines Net Location's service availability goals and commitments as well as the notification and operations standards. It also provides additional terms on remedies and certain obligations of Net Locations and Customer in addition to the Terms and Conditions.
Net Locations will provide backup or secondary MX services after the service has been properly configured on your end per our instructions, in the event your mail server becomes unavailable your e-mail will automatically be delivered to our servers. Our servers will store these messages and automatically try to forward them to your mail server at periodic intervals. Messages expire and are deleted from the queue automatically 14 days after they are received, if they still cannot be delivered to your server. This is collectively referred as the "Services". Net Locations may from time to time change, update or enhance the Services as it deems necessary.
Customer will provide Net Locations with all technical data and all other relevant information and assistance Net Locations reasonably requires to supply the Services. To the best of Customer's knowledge, all information supplied to Net Locations will be complete, accurate and provided in good faith. Customer acknowledges and agrees that Net Locations will not provide the Services to Customer unless Customer is in compliance with Net Locations's acceptable usage policies and technical prerequisites ("AUP") that are applicable to the Services. Customer agrees not to: (i) use the Services for any purpose that is in violation of any applicable law or is otherwise an infringement on the rights of any person or entity, or violates the AUP. In the event Customer provides similar services; (ii) modify, decompile, reverse engineer, disassemble or reproduce any components of the Services (iii) interfere with or disrupt the Services or any networks connected to Services; (iv) conduct fraudulent activities, including the initiation or propagation of any Malware; (v) take an unreasonable or disproportionately large load (traffic bandwidth or number of messages per user exceeding 150% of the average for all Net Locations customers using similar services) on Net Locations infrastructure providing the Services, unless the parties agree to a bandwidth overage charge rate as set forth in a Service Order Form; (vi) impersonate any person or entity or falsely state or otherwise misrepresent an affiliation with a person or entity; (vii) allow the use of its systems to be used as Open Proxy, or otherwise permit the use of the Services by any third party users that are not bound by these Terms and Conditions (each of (i) to (vii), a "Prohibited Use"). At Net Locations's reasonable request, Customer shall provide to Net Locations comments, criticisms, suggested improvements and other feedback, about the use, operation, functionality and features of the Services (collectively, the "Feedback"). The Feedback shall include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, user-desired features and the results of any and all benchmark or similar testing conducted within the term of this Agreement. In addition, Customer shall report to Net Locations any unusual, unplanned or out-of-the-ordinary performance of the Services observed by any of Customer's personnel. Customer agrees that Net Locations has the unrestricted right to use the Feedback at its sole discretion, without notice to, payment to or consent from Customer, provided that Net Locations's use of the Feedback complies with the nondisclosure obligations set forth in Section 10 below. Customer agrees not to disclose Feedback to any third party without the express written consent of Net Locations.
Customer will provide Net Locations with technical contact information regarding Customer's system administrator ("System Administrator") who Customer hereby authorizes and directs to act on its behalf and provide the information required by Net Locations to configure and manage the Services. Net Locations will provide Customer with a confidential access code to the administration tool. Customer agrees that only the System Administrator will have access to the access code and the access code shall remain the Confidential Information of Net Locations.
The initial term of this Agreement is specified in the Order Form (the "Initial Term"). This Agreement shall renew for successive terms of equal length as the Initial Term (each a "Renewal Term") unless either party provides written notice of its intent not to renew this Agreement at least five (5) days prior to the end of the then current term. During any Renewal Term, the parties shall be bound by the provisions of these Terms and Conditions and Service Level Agreements in the form published on Net Location's website at http://www.netlocations.com/mail-backup-tos.html as of the effective date of the Renewal Term. Customer acknowledges and agrees that billing for the Services shall continue through the effective date of the termination, subject to the notice requirement and other applicable terms herein.
Customer will pay the Fees set forth on the Order Form, which are subject to change based on Customer's request for an increased number of domains served or other options ordered by Customer, or at the discretion of Net Locations at the beginning of any Renewal Term. If the Customer cancels the Services during the Initial Term or any Renewal Term they will not be entitled to a refund. Customer shall pay all Fees as due with our payment processors as per the order form submitted from our website. Any payment not received when due shall accrue interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, whichever is lower. Net Locations will have the right at its expense and with reasonable prior notice to Customer to audit Customer's compliance with the terms of this Agreement, including but not limited to the number of authorized domains. If any audit reveals that Customer has underpaid the Fees due to Net Locations hereunder, Customer will promptly remit such underpaid amounts plus interest thereon at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. Customer agrees to have their credit card billed automatically every Renewal Term and continue indefinitely unless the customer cancels the service as defined in Section 4 above.
Net Locations may suspend the Services as follows: a) immediately if Net Locations deems it necessary to terminate any Prohibited Use either directed at or originating from Customer's domains or servers; or b) upon written notice to Customer if Customer breaches this Agreement and fails to cure such breach to Net location's satisfaction within five (5) days after Net Location's written notice specifying the breach. Suspension of Services shall be without prejudice to any rights or liabilities accruing prior to or during the suspension, including but not limited to Customer's obligation to pay Fees.
Net Locations may terminate this Agreement for cause immediately upon email notice to Customer: (a) in the event that Net Locations does not receive Customer's payment of any non-disputed Fees within thirty (30) days of the invoice date, (b) Customer fails to remedy any situation giving rise to a Suspension of Service; (c) Customer commits a material breach of this Agreement; or (d) Net Locations makes a reasonable determination that Customer's traffic volume is disproportionately large. In the event of (d) above, Net Locations may request that Customer enter negotiations regarding a Fee adjustment as a prerequisite to continuing Services. Within thirty (30) calendar days after termination or expiration of this Agreement, Customer will: (a) return to Net Locations all materials provided to Customer by Net Locations under this Agreement; and (b) certify in writing through an authorized representative of Customer that such return has been effected.
Following signup Customer will receive information on how they may contact Net Locations for technical support. Net Locations may from time to time perform maintenance on or otherwise temporarily suspend the Services. Net Locations will use commercially reasonable efforts to minimize any disruption of Services.
Although information transmitted to Net Locations is stored in secure operating environments, Customer understands that no data transmission over the Internet can be guaranteed to be 100% secure. Net Locations is not responsible for any interception or interruption of any communications through the Internet. Customer is responsible for maintaining the security of its networks, servers, applications and access codes.
Each party agrees and undertakes that during the term of this Agreement and for three (3) years thereafter, it will keep confidential and will not use for its own purposes without the prior written consent of the disclosing party any information of a confidential nature which may become known to the receiving party from the disclosing party ("Confidential Information") unless: (i) such disclosure is otherwise permitted or contemplated by this Agreement; (ii) the information is publicly known or already known to the receiving party at the time of disclosure; (iii) the information subsequently comes lawfully into the possession of the receiving party from a third party; or (iv) disclosure is required by court order or otherwise by law. Customer acknowledges that Net Locations's Intellectual Property (defined below) constitutes Confidential Information of Net Locations. In Net Locations's normal provision of the Services, Customer's traffic is processed electronically, and is not reviewed by Net Locations's personnel. Net Locations recognizes that domain specific information and the content of the traffic sent to or from Customer constitutes Confidential Information of the Customer. Net Locations will not sell, rent, license or exchange personally identifiable data with a third party without the Customer's consent unless required to do so by law or to enforce this Agreement. Notwithstanding the foregoing, Net Locations reserves the right to utilize any content of the traffic to maintain or improve the performance of the Services, or to observe, study and test the functioning of the Services. In addition, some information may be shared on an aggregate basis only as a part of a larger set of statistics (for example, statistics that indicate amount of traffic, success rates, and size of Net Locations's customers). Net Locations may use cookies to store user session information, access codes, and application settings to ease site navigation processes. Cookies do not hold any personal information.
The Services (including any associated software, hardware, websites, passwords, components and tools) are and will remain the sole property of Net Locations or its licensors, respectively. Net Locations or its licensors, respectively, will retain sole ownership of all right, title and interest in and to the Services, as well as any derivative works thereof, including but not limited to copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights ("Intellectual Property"). Customer agrees, on behalf of itself, its employees and agents, that it will not remove or alter any trademarks, or other proprietary notices, legends, symbols, or labels appearing in the Service or other materials delivered by Net Locations.
The Services may contain products of independent third parties. Net Locations makes no warranty as to the accuracy of any such third party information.
ANY USE BY YOU OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED "AS IS," AND Net Locations AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR NON-INFRINGEMENT. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, Net Locations OR ITS LICENSORS' AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE FEES PAID BY CUSTOMER FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL Net Locations OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOSS OF CUSTOMERS, LOSS OF, OR LOSS OF USE OF, ANY SOFTWARE, DATA, WEB TRAFFIC, OR EMAILS, BUSINESS INTERRUPTION, DELAYS OR FAILURE TO DELIVER WEB TRAFFIC OR EMAIL, DELAYS OR FAILURE TO DETECT UNDESIRABLE WEB TRAFFIC OR MALWARE, OR WRONGFULLY IDENTIFYING WEB TRAFFIC OR EMAIL FOR FILTERING OR AS CONTAINING MALWARE) HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF Net Locations HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. NEITHER Net Locations NOR ITS LICENSORS WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED.
Customer agrees to indemnify, defend, and hold Net Locations harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs and expenses (including reasonable attorneys' fees) arising out of or relating to (i) any breach by Customer of this Agreement; (ii) any information or content passing through the Services and/or Net Locations network to or from Customer; (iii) any taxes arising from the Services whether now in effect or imposed in the future (excluding taxes based on Net Locations income); and (iv) claims by third-parties arising from Customer's use of the Services (excluding claims that the Services, as provided by Net Locations, infringe third party intellectual property rights). Net Locations agrees to indemnify, defend, and hold Customer harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs and expenses (including reasonable attorneys' fees) arising out of third party claims that Customer's authorized use of the Services, as provided by Net Locations, infringes the intellectual property rights of such third party. In the event that a claim of infringement is made or threatened, Net Locations may: (i) modify the Services to render them non-infringing; (ii) secure for Customer the right to use the Services; or (iii) terminate this Agreement. The foregoing states the entire liability of Net Locations with respect to infringement.
The failure of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
The laws of the State of California shall govern this Agreement and any interpretations or constructions thereof. Further, the place of performance and transaction of business shall be deemed to be in the County of San Diego, State of California, and in the event of litigation, the exclusive venue and place of jurisdiction shall be the state courts located in San Diego, California, or federal courts located in San Diego, California, as applicable. The parties hereby submit themselves to the personal jurisdiction and venue of such courts. In any dispute related to this Agreement or the Services, the parties irrevocably waive any right they may have to a jury trial, and such waiver is a material inducement to Net Locations entering into this Agreement and providing the Services. In any dispute regarding the enforcement of this Agreement, the prevailing party shall be entitled to recover all costs and fees, including attorneys' fees, incurred by such prevailing party in enforcing the terms of this Agreement. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of this Agreement must be filed within one (1) month after such claim or cause of action arises.
Any notice required in this Agreement shall be delivered by email sent using the form located here: http://www.netlocations.com/https://www.netlocations.com/contactus.html. Notices shall be deemed effective upon receipt.
This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Customer may not assign this Agreement without the prior written permission of Net Locations.
Rights and obligations which by their nature should survive will survive the termination or expiration of this Agreement, including but not limited to Sections 5, 7, 10-18, and 20.
Net Locations goal is to achieve 100% Service Availability for all customers. "Service Availability" means that Net Locations is available to retrieve and store customer e-mails in the event of failure to their mail servers, defined as a header response from an MTA outside of scheduled maintenance windows. Subject to the Exceptions set forth below, Net Location's Service Availability shall be 99.99% for the Services.
When Customer notices any Service Availability failure or believes that the failure occurred, Customer will inform Net Location's Customer Support Department via email by contacting us from http://www.netlocations.com/https://www.netlocations.com/contactus.html within ten (10) business days of first notice. Customer agrees that the remedies set forth in this SLA are conditionial upon Customer's compliance with this notification requirement.
If Service Availability is below 99.99% for a given month ("Deficiency"), and none of the Exceptions defined below is applicable, and provided that Customer is not in breach of the Agreement, Customer shall have the following sole remedy: Net Locations shall issue a credit on Customer's account for that month, and such credit can be used only towards future billing charges. The amount of the credit shall be the pro-rata service fee calculated by multiplying the Failure Percentage with Customer's total monthly fee in the month during which the Deficiency occurs, and if Deficiency occurs for Customer for three consecutive calendar months, Customer has the option to terminate the Agreement by giving Net Locations fifteen (15) days prior written notice. Customer shall not have any remedies under this section of the SLA for the Deficiency caused by or associated with any of the following ("Exceptions"): (a) scheduled maintenance and emergency maintenance and upgrades; (b) unavailability of or interruption or delay in telecommunications or third party services (c) circumstances beyond Net Locations reasonable control, including, without limitation, acts of God, outages elsewhere on the Internet, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike, earthquake, other natural disaster or other labor disturbance, failure of third party software; (d) DNS issues outside the direct control of Net Locations; (e) Customer's acts or omissions, including without limitation, any negligence, willful misconduct, or engaging in Prohibited Use or otherwise use of the Net Locations Services in breach of the Agreement; or (f) Customer's email servers have not been configured to receive email from Net Locations mail servers or are misconfigured and not accepting mail for users.
Net Locations will provide Customer with at least 24 hours advance notice on scheduled maintenance, which includes server, data center, and software maintenance and upgrades. Net Locations will make commercially reasonable efforts to ensure that scheduled maintenance that affects the availability of Net Locations Services for more than thirty (30) minutes is performed between 10:00 PM and 4:00 AM U.S. Pacific Time, Monday through Friday, or between 12:00 noon to 6:00 AM U.S Pacific Time on Saturdays, Sunday, and holidays.
If a dispute arises about whether or not Service Availability was affected or whether an Exception occurred, Net Locations shall make a determination in good faith based on its portal audit trails, system logs, monitoring reports and configuration records, the relevant part of which Net Locations shall make available for auditing by Customer at Customer's request.
