CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE SECURETIDE® EMAIL PROTECTION SERVICE (THE "SERVICE"). THIS SUBSCRIPTION AGREEMENT (SOMETIMES REFERRED TO HEREIN AS 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.
"AppRiver" means AppRiver, LLC, a Florida limited liability company.
"AppRiver Network" means the network of data centers, data connections and equipment that AppRiver maintains to provide the Service.
"Biennial" means once every two (2) years.
"Customer" means you or the entity you represent that is purchasing the Service and agreeing to the terms of this Agreement.
"Disclosing Party" means a party to this Agreement that discloses Confidential Information to the other party.
"Documentation" means the online user guide for the Service.
"Downtime" means any time during which the Service is unavailable from all AppRiver Email Protection Service data centers, measured from the time of actual interruption of the Service, until the time such Service is restored.
"Force Majeure Event" means: (a) acts of God, such as fire, flood, earthquake or other natural causes; (b) terrorist events, riots, insurrections, war or national emergency; or (c) judicial, legal or other action of a governmental authority, which action makes performance of this Agreement impossible.
"Order Form" means the online order form filled in by Customer setting forth such information as the contact information of the Customer, the service (or services) selected, the number of Users permitted, the amount and method of payment, and the dates of the initial Term (or initial Terms).
"Prospective Customer" means an individual or entity that is taking advantage of AppRiver's 30-day Free Trial period.
"Receiving Party" means the party receiving Confidential Information from the other party.
"Service" means SecureTide®, AppRiver’s hosted Email Protection Service, including the Documentation, subscribed to by Customer consisting of Email Spam and virus filtering, as more particularly described in the Documentation.
"Spam" means unsolicited bulk email.
"Subscriber" means any customer of AppRiver who has become a party to this Agreement.
"Subscription" means the purchase of a right to use the Service for some period.
"Term" means the initial period of the Subscription (purchased by Customer) and any subsequent extensions or renewals.
"User" means an individual who has access to the Service via the Internet.
"Website" means the website with the URL: www.AppRiver.com.
AppRiver reserves the right to change any of the terms of this Agreement by posting the revised terms of this Agreement on the Website and/or by sending an email to the last email address that the Subscriber has given to AppRiver. Any such change shall be effective immediately with respect to any new Subscriber and retroactive to the date of notice with respect to any existing Subscriber who does not terminate the Subscription within 10 days after the earlier of such posting or email.
AppRiver requires that any individual Subscriber be at least 18 years of age. By using the Service, Customer represents and warrants that Customer, if an individual, is at least 18 years of age and that Customer's use of the Service does not violate any applicable law or regulation.
3. 30-Day Free Trial
A Prospective Customer may use the Service free of charge for up to 30 days to allow for a thorough evaluation (the "Free Trial"). Unless Prospective Customer completes and submits the Order Form to AppRiver electing to convert the Free Trial to a paid subscription within such 30 day period, the Service will be shut off after such 30-Day Free Trial period has expired.
4. Subscription Options
During the Free Trial period, Prospective Customer will be given the opportunity to review and select one of the available Subscription options. The Subscription options include, but are not limited to, monthly, quarterly, annually, and Biennially. The Service is billed at the start of each Subscription period for the (initial, renewal or extended) period. Unless notice is provided by one party to the other of no renewal, before the end of any Term, the Term will automatically extend for the same amount of time as the prior period. Subscribers choosing Yearly and Biennial Subscription options receive prepayment discounts.
5. Fees and Payments
Customer acknowledges and agrees that Customer is responsible for paying the fee that applies for each period during which the Term continues. Upon Customer entering into a Subscription Agreement with AppRiver and giving AppRiver Customer's credit card information, Customer agrees that AppRiver may, and is authorized to, charge Customer's credit card account for payment in advance in the correct amount, which payment may vary from time to time as provided in this Agreement, for each recurring period of this Agreement. If AppRiver does not receive payment for Customer's account, as required, AppRiver may terminate Customer's account. Customer’s payment reconfirms Customer’s consent to be bound by the terms of this Agreement.
The Term of this Agreement will continue until terminated. Such Term may be terminated by either party at any time and for any reason. The Term will automatically expire if Customer stops payment for the Service, or if Customer doesn’t comply with this Agreement. If the termination is for an annual or Biennial subscription and is requested prior to the end of the active subscription period, AppRiver will refund pro rata, as of the end of the month in which the Service is terminated, the unused portion of the fees paid, after subtracting from the unused portion the entire amount of any annual or Biennial Subscription period discount that was given. AppRiver does not provide refunds for any part of a month in which the Service is terminated. Requests for cancellation must be submitted via email to [email protected] with the words: "Cancel SecureTide Subscription" in the subject line of the email. Upon termination, Customer will no longer have access to, or be able to use, the Service.
7. 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 in the Order Form.
8. Restrictions on Use
Customer will not use, and will not permit others to use, Customer’s account to: (1) copy, distribute, rent, lease, transfer or sublicense all or any portion of the Service to any party; (2) modify or prepare derivative works relating to the Service; (3) use the Service (other than for Customer’s internal use) 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; (5) reverse engineer, decompile, or disassemble the Service; or (6) use the Service to help design a competing or similar 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. Customer shall not acquire hereunder any right, title, or interest in the Service, except the right to use it in accordance with this Agreement.
10. Customer Obligations
During the Term of this Agreement, Customer shall have the following obligations, in addition to those set forth elsewhere in this Agreement:
10.1 Customer shall be solely responsible for its connection to the Internet and shall maintain a valid IP address to enable Customer to use the Service. Customer shall conform to the protocols and standards published on the Internet from time to time and adopted by the majority of Internet users.
10.2 Customer shall be solely responsible for its activities (and the activities of anyone else who obtained access to Customer's password due to actions or inactions by Customer) in using the Service including the activities of its employees and contractors.
10.3 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.
10.4 Customer shall notify AppRiver within fourteen (14) days if the number of Customer’s Users increases by more than five percent (5%) of the then-licensed number of Users.
10.5 Customer agrees that if the average number of emails received by each of Customer’s then-licensed Users in any one month exceeds 250% of the average number of emails received per licensed User measured across the AppRiver Network that same month, AppRiver may increase the charges to what would be charged if the number of licensed Users were increased so that limit was not exceeded. Such increase shall remain in effect until three (3) months after the number of emails received by Customer per actual licensed User no longer exceeds such limit.
10.6 Customer shall be responsible for ensuring that their email is directed through the Service by making and maintaining the appropriate configuration settings.
11.1 The parties need to assure protection of their respective trade secrets and other confidential information ("Confidential Information").
11.2 Confidential Information of AppRiver includes, but is not limited to:
Any and all source code used to provide the Service and concepts relating to such source code and all designs, diagrams, flow charts and documentation relating to any such source code.
11.3 Confidential information of Customer includes, but is not limited to:
All emails (with all attachments), both sent and received, of Customer the content of which was not created by or for the Receiving Party.
11.4 Notwithstanding any other provision of this Agreement, Confidential Information shall not include:
- Information that is, or subsequently becomes, within the knowledge of the public generally through no fault of the Receiving Party;
- Information that was known to the Receiving Party before obtained from the Disclosing Party; or
- Information that is developed independently by the Receiving Party and not using any of the Disclosing Party's information.
11.5 Except as reasonably required to monitor and enforce compliance with the terms of this Agreement, each Receiving Party covenants and agrees not to use or disclose any of the Confidential Information of the Disclosing Party.
11.6 The parties agree that all Confidential Information shall remain protected under this Agreement so long as such information is not subject to any of the exceptions set forth in Section 11.4 above.
12. Acceptable Use Policy
Customer shall ensure that its Users must not under any circumstances whatsoever commit, or attempt to commit, aid or abet any action that may threaten the Service, whether deliberately, 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.
13. Modifications to Service
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 are 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.
14. Service Level Agreement and Remedy
14.1 AppRiver warrants that during the Term, the Service shall be operational at least 99.999% of the total hours during every month Customer uses the Service ("Availability Warranty"), meaning that the Downtime in such given month shall not be more than .001%. The Availability Warranty does not apply to Downtime which is attributable to: (i) events of Force Majeure as described in Section 19 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.
14.2 If Customer believes that AppRiver has failed to meet its commitments under the Availability Warranty, Customer must contact AppRiver in writing within 15 business days of the month in which Customer believes the warranty obligations were not met. The enforceability of this warranty is contingent upon such notice being timely given. 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.
15. Warranty Disclaimers
EXCEPT AS OTHERWISE PROVIDED IN SECTION 14, 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 SPAM 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.
16. Limitation of Liability
APPRIVER’S AND ITS SUPPLIERS' ENTIRE LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF, THIS AGREEMENT, IS LIMITED TO THE AMOUNT CHARGED FOR THE SERVICE DURING THE ONE (1) CALENDAR MONTH JUST 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.
17. Customer Indemnification
Customer agrees to indemnify and hold AppRiver harmless from any losses arising from claims or demands (including, but not limited to, attorneys fees) 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 12 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. AppRiver will have the right to approve any attorney selected by Customer to represent AppRiver. Notwithstanding the foregoing, in the event Customer fails to select a lawyer(s) to defend any such claim who is acceptable to AppRiver within a reasonable time under the then current circumstances, AppRiver may choose its own lawyer(s) and Customer will be responsible for paying the legal fees of such lawyer(s).
18. 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.
19. Force Majeure
If the performance of this Agreement or any obligation (other than one for money owed) is prevented, delayed or interfered with by a Force Majeure Event, the party affected by the Force Majeure Event is excused on a day-by-day basis to the extent of the interference, but only if: (i) the Force Majeure Event is beyond the reasonable control of the party claiming it and without that party’s fault or negligence; (ii) the affected party notifies the other party as soon as practicable of the nature and expected duration of the claimed Force Majeure Event; and (iii) the affected party uses its best efforts to protect against the Force Majeure Event and uses all commercially reasonable efforts to avoid, mitigate or remove the extent of the delay and causes of nonperformance and resumes performance promptly after the causes have been eliminated. The obligations of the party not claiming the Force Majeure Event are also excused on a day-by-day basis.
21. Choice of Law
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.