CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE CIPHERPOST PRO® EMAIL ENCRYPTION SERVICE (THE "SERVICE"). THIS AGREEMENT GOVERNS THE USE OF THE SERVICE. BY USING THE SERVICE, YOU ARE AGREEING TO BE BOUND BY THE TERMS CONTAINED HEREIN. IF YOU DO NOT AGREE WITH THIS AGREEMENT, DO NOT USE THE SERVICE.
"Customer" shall mean you or the entity you represent that is purchasing the Service and agreeing to the terms of this Agreement.
"Documentation" shall mean the published user guide for the Service.
"Downtime" is defined as any time during which the Service is unavailable from all AppRiver Email Encryption Service data centers, measured from the time of actual interruption of the Service, until the time such Service is restored.
"AppRiver" shall mean AppRiver, LLC.
"AppRiver Network" shall mean the network of data centers, data connections and equipment that AppRiver maintains to provide the Services.
"Service" shall be defined as CipherPost Pro®, AppRiver's Email Encryption Service, including the Documentation, subscribed to by Customer consisting of Email Encryption technologies as more particularly described in the Documentation.
"Term" shall be defined as the initial subscription period purchased by Customer (as set forth in the ordering process) and any subsequent renewals of the subscription by Customer.
"User" shall be defined as an Internet user (an individual who has access to the Internet) on behalf of whom Services are being provided.
2. 30-Day Free Trial
AppRiver provides the first 30 days of CipherPost Pro® Email Encryption Service free of charge to allow ample time for a thorough evaluation. During this period AppRiver will provide multiple opportunities to communicate your intent to continue the Service or cancel it. Without clear direction regarding your intent to continue the Service on or before the end of the trial period, your use of CipherPost Pro will automatically stop functioning at the end of the Trial period.
3. Subscription Options
During the Trial period, you will be given the opportunity to review and select one of the available subscription options. The subscription options are monthly, yearly, and biennially. The Service is billed at the start of each month for the following month if the monthly subscription option is selected. The Yearly and Biennial options are pay-in-advance Subscriptions which include prepayment discounts. Clients choosing either of these options will be contacted by AppRiver approximately 45 days prior to the end of the subscription period with the available options for continuing the Service.
4. Confirmation of Payment
You acknowledge and agree that after the Trial Period, the Service cannot be provided unless and until you have established an account, through the ordering process, and selected either the monthly, One-Year, or Biennial Subscription option. Further, you acknowledge and agree that if AppRiver does not receive payment for your account, as required, AppRiver may terminate your account without liability to you. Furthermore, your payment constitutes your consent to be bound by this Agreement.
Subscription Agreements are effective until terminated and can be cancelled at anytime and for any reason. Agreements will automatically expire if the Customer stops payment for the Service, or if Customer doesn't comply with this Agreement. If the cancellation request is for a One-Year or Biennial subscription, and is requested prior to the end of the active subscription period, AppRiver will refund the unused portion of the fees paid, net of the One-Year or Biennial Subscription period discount. AppRiver does not provide refunds for partial month's service. Requests for cancellation must be submitted via email to [email protected] with the words: "Cancel CipherPost Pro Subscription" in the subject line of the email.
6. Right to use the Service
Subject to the terms of this Agreement and proper payment to AppRiver, AppRiver hereby grants Customer a non-exclusive, non-transferable right to use the Service solely for Customer's own internal business purposes for the Term and number of Users specified during the ordering process between Customer and AppRiver.
7. Restriction on Use
Customer may not: (1) copy, distribute, rent, lease, transfer or sublicense all or any portion of the Service to any third party; (2) modify or prepare derivative works of the Service; (3) use the Service in any commercial context or for any commercial purpose or in any commercial product including reselling the Service; (4) use the Service in any manner that threatens the integrity, performance or availability of the Service; or (5) reverse engineer, decompile, or disassemble the Service.
Customer acknowledges that the Service is the exclusive property of AppRiver. AppRiver and its suppliers retain all rights, title and interest in and to all patents, copyrights, trade secrets, trademarks and other intellectual property rights in the Service and Customer shall not acquire hereunder any right, title, or interest in the Service, except the right to use it in accordance with this Agreement and the EULA available at the time of purchase.
9. Customer Obligations
During the Term of the Agreement, Customer shall have the following obligations, in addition to those set forth elsewhere in this Agreement:
- Customer shall be solely responsible for its activities in using the Service including the activities of its employees and contractors.
- Customer's use of the Service is subject to all applicable local, state, national and foreign laws and regulations. Customer agrees to comply with such laws and regulations.
10. Acceptable Use Policy
Customer shall ensure that its Users must not under any circumstances whatsoever commit, or attempt to commit, nor aid or abet any action that may threaten the Service, whether deliberate, negligently or innocently, which shall include but is not limited to (i) an attempt to crash the Service host or network, (ii)"denial of service" attacks, or "flooding" attacks against the Service host or network, (iii) any attempt to circumvent the user authentication or security of the Service host or network, (iv) the creation, transmission, storage, or publication of any kind of virus or corrupting program or corrupted data, or (v) any other action that may adversely affect the Service. AppRiver shall have the right to suspend or terminate the Service, and to take such defensive action as may at AppRiver's sole discretion be deemed necessary in the event of any attack upon the Service or network.
11. Modifications to Services
AppRiver reserves the right to modify the features and functionality of the Service with the objective of providing Customer with equal or enhanced services. These updates shall include a subsequent release or version of the Service containing functional enhancements, error corrections or fixes that is generally made available free of charge to AppRiver's customers that have contracted for the appropriate level of Service. Updates shall not include any release, option or future product which AppRiver licenses separately or which is not included as part of the Service.
12. Service Level Agreement and Remedy
AppRiver warrants that during the Term, the Service shall be operational at least 99.99% of the total hours during every month Customer uses the Services ("Availability Warranty"), meaning that the Downtime in such given month shall not be more than .01%. The Availability Warranty does not apply to Downtime which is attributable to (i) events of Force Majeure as described in Section 17 of this Agreement, (ii) acts or omissions by the Customer which are in contravention of this Agreement, or (iii) scheduled maintenance of the service by AppRiver.
If Customer believes that AppRiver has failed to meet its commitments under the Availability Warranty, Customer must contact AppRiver in writing within fifteen (15) business days of the month in which Customer believes the warranty obligations were not met. Failure to provide such notice will result in the forfeiture of Customer's right to receive a remedy for the Downtime. In the event that it is shown that AppRiver did not meet its warranty commitments, AppRiver's sole obligation to Customer will be to provide a credit to Customer against future Service fees in an amount equal to 5% of the Customer's monthly Service fee for each 30 minutes of Downtime in the calendar month in question, up to a maximum of the monthly or calculated monthly fee. The remedy set forth above shall be Customer's sole and exclusive remedy for a breach of the Availability Warranty.
13. Warranty Disclaimers
Except as otherwise provided in section 12, the service is being provided "as is" without warranty of any kind. AppRiver does not warrant that the service will meet customer's requirements or that the service will find and correctly categorize all urls or malware. AppRiver hereby disclaims all warranties, express, implied, or statutory, including, without limitation, all implied warranties of merchantability and fitness for a particular purpose, and any warranties as to non-infringement, related to the service supplied hereunder. Some states and countries do not allow the exclusion of implied warranties, so the above exclusion may not apply to customer. This warranty gives customer specific legal rights. Customer may have other rights which vary by state or country.
14. Limitation of Liability
AppRiver's and its suppliers entire liability under, for breach of, or arising out of this agreement, is limited to the payments actually made by the customer for the service during the one (1) month prior to the date of the event giving rise to any liability. Under no circumstances and under no legal theory, tort, contract, or otherwise, shall AppRiver or its suppliers be liable to customer or any other person for any indirect, special incidental, exemplary, punitive or consequential damages of any kind, including without limitation, lost profits, losses or expenses relating to interruption of business activities, loss of data or the costs of procuring substitute goods, whether or not AppRiver was advised in advance of the possibility of such loss or damage.
15. Customer's Indemnification
Customer agrees to indemnify and hold AppRiver harmless from any claims or demands against AppRiver relating to the Service that are attributable to the negligence of Customer, any misuse of the Service by Customer, any violation of AppRiver's acceptable use policy set forth in Section 10 of this Agreement, or the failure of Customer to fulfill its responsibilities under this Agreement. In the event of any such claim or demand, AppRiver agrees to promptly notify Customer of the claim or demand and allow Customer to control the defense or reasonably settle such claim or demand provided that AppRiver or its Service is not adversely affected by such control or settlement.
16. Export Controls
Customer agrees to comply with all applicable U.S. export control laws and regulations as from time to time amended, including without limitation, the laws and regulations administered by the United States Department of Commerce and the United States Department of State. Customer shall not export, import or transfer the Service contrary to U.S. or other applicable laws, whether directly or indirectly, and will not cause, approve or otherwise facilitate others such as agents or any third parties in doing so. Customer represents that neither the United States Department of Commerce nor any other federal agency has suspended, revoked or denied its export privileges. Customer agrees not to use or transfer the Service for end use relating to any nuclear, chemical or biological weapons, or missile technology unless authorized by the U.S. Government by regulation or specific license.
17. Force Majuere
Neither party will be liable to the other party for any alleged or actual loss or damages resulting from delays or failures in performance due to: acts of civil or military authority, governmental priorities, earthquake, fire, flood, epidemic, quarantine, energy crisis, strike, labor trouble, war, riot, terrorism, accident, shortage, delay in transportation, acts or omissions of Internet traffic carriers, or any other cause beyond the reasonable control of the party whose performance is so delayed.
The waiver by either party of any breach of any provision contained in this Agreement shall not be deemed to be a waiver of such provision on any subsequent breach of the same or any other provision contained in this Agreement. Any such waiver must be in writing in order to be effective, and no such waiver or waivers shall serve to establish a course of performance between the parties contradictory to the terms hereof. All provisions of this Agreement are severable, and the unenforceability or invalidity of any of the provisions will not affect the enforceability or validity of the remaining provisions. This Agreement is the complete and exclusive statement of the agreement between Customer and AppRiver concerning the subject matter covered hereby, this Agreement supersedes any prior proposal, agreement, or communication, oral or written, pertaining to the such subject matter and there are no inducements to enter into this Agreement which are not set forth herein. Customer may not assign this Agreement or any associated transactions without the written consent of AppRiver. In the event of breach by a party of its obligations hereunder, the non-breaching party may seek injunctive or other equitable relief in any court of competent jurisdiction, without necessity of posting bond. This Agreement shall be governed by the laws of the State of Florida, USA, and of the United States of America, excluding (i) their respective conflicts of law principles and (ii) the United Nations Convention on Contracts for the International Sale of Goods.