Terms and Conditions of ServiceBefore registering for a Death2Spam Sentinel Service account, you must read and agree to these Terms and Conditions governing usage of the application servers and websites operated by Death2Spam LLC.
In these terms and conditions: "Agreement" means the agreement between Death2Spam and the Customer comprising these terms and conditions and the pricing and payment terms and any other provisions expressly included in writing agreed by Death2Spam as part of the agreement between the parties, but excludes any terms and conditions which the Customer seeks to include unless those terms and conditions are expressly accepted in writing by Death2Spam; "Commencement Date" means the date that the set up activities described in clause 3 below are completed as notified to the Customer under clause 3.2; "Customer" means the Death2Spam customer that accepts these terms and conditions; "Death2Spam" means Death2Spam LLC, a Limited Liability Company registered in the State of Washington, United States of America; "Services" means the automated email scanning and content-filtering services described in clause 4.1 and 4.2 below. Death2Spam may, in its sole discretion, modify or revise these terms and conditions at any time, subject to two month's written notification of an Alteration to Terms of Service, and the Customer agrees to be bound by such modifications or revisions. If the Customer does not accept and abide by this Agreement, the Death2Spam service may not be used by that Customer. Nothing in this Agreement shall be deemed to confer any third party rights or benefits.
2.1 Death2Spam will: (a) carry out the setup work under clause 3; and (b) provide the Services under clause 4, 2.2 The Customer will perform its obligations including to pay Death2Spam, per the terms and conditions of this Agreement.
3.1 The Customer will provide Death2Spam with business identification, contact, administration, billing, and other information that may be required as part of the registration process and/or continued use of the Service. 3.2 Following acceptance by the Customer of these terms and conditions, Death2Spam will: 3.3 Death2Spam will notify the Customer when the setup activities in clause 3.2 are complete, and at that time the provision of Services will commence.
4.1 The Death2Spam Sentinel Service is a hosted email classification and filtering service, provided on an AS-IS and AS-AVAILABLE basis. Death2Spam disclaims all responsibility and liability for the availability, timeliness, security or reliability of the Service. 4.2 Death2Spam will provide the Services to the Customer on a 24/7 basis, subject to these terms and conditions and in particular clause 4.4. The Services comprise the following: 4.3 The Services do not include: 4.4 Death2Spam has no responsibility nor any liability to the Customer in respect of the following: 4.5 Death2Spam does not guarantee nor represent that all spam will be detected or filtered as a result of provision of the Services, or that the Services will result in the Customer receiving no spam or offensive emails. Where the Customer acquires the Services for the purposes of a business, Death2Spam does not warrant that the provision of Services will ensure the uninterrupted operation of the Customer's email system nor any other aspect of the Customer's IT systems.
5.1 The Customer shall use the Death2Spam Service in compliance with all applicable local, state, national, and international laws, rules and regulations, including any laws regarding the transmission of technical data exported from the Customer's country of residence. 5.2 The Customer shall not, shall not agree to, and shall not authorize any third party to: 5.3 Violation of any of the foregoing may result in immediate termination of this Agreement, and may subject the Customer to state and federal penalties and other legal consequences.
6.1 Death2Spam takes no responsibility for third party content (including, without limitation, any viruses or other disabling features), nor does Death2Spam have any obligation to monitor such third party content. 6.2 Death2Spam reserves the right at all times to remove or refuse to distribute any content on the Service, such as content which violates the terms of this Agreement. 6.3 Death2Spam also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to: 6.4 As a condition of using the Service, the Customer agrees to accept the terms of the Death2Spam Privacy Policy as it may be updated from time to time. Personal information collected by Death2Spam may be stored and processed in the United States or any other country in which Death2Spam or its agents maintain facilities. By using Death2Spam, the Customer consents to any such transfer of information outside of the Customer's country of residence.
7.1 Death2Spam will commence providing the Services on the Commencement Date and will continue to provide the Services until:
8.1 The Customer will pay Death2Spam's standard monthly fees for provision of the Services. The standard monthly fees are as stated on Death2Spam's website, or as otherwise agreed in writing. 8.2 Service fees are to be paid monthly, for Death2Spam services provided during the preceding month (or part thereof), or may be pre-paid in advance by arrangement. Invoices will be issued by the 7th working day of each month for payment by the 21st of that month. Remittance may be paid by cheque, credit card, automatic payment, or electronic funds transfer to a bank account nominated by Death2Spam. 8.3 If the Customer fails to pay any amount due under this Agreement by the due date, Death2Spam may without prejudice to its other rights and remedies suspend provision of the Services until payment in full is received, or charge a reasonable late-payment penalty. 8.4 Death2Spam may amend its standard monthly fees for provision of the Services at any time on two month's written notice to the Customer.
9.1 Each party must treat information disclosed to it by the other party in the performance of this Agreement as confidential and must not use that information except in the performance of its obligations under the Agreement, and must not disclose the confidential information to any third party. 9.2 Clause 9.1 does not apply to information which is: 9.3 While the Customer acknowledges that in providing the Service, Death2Spam could read, review and/or forward messages to a third party, Death2Spam guarantees to the Customer, subject to clause 9.4 and the Death2Spam Privacy Policy, that in providing the Services it will not do so. 9.4 Death2Spam will only read an email message if the Customer is experiencing a problem with that particular email, and has expressly requested Death2Spam to read the email in order to solve the problem. 9.5 Death2Spam reserves the right, but shall have no obligation, to investigate the Customer's use of the Service in order to determine whether a violation of this Agreement has occurred, or to comply with any applicable law, regulation, legal process or governmental request.
10.1 All intellectual property (including without limitation copyright) in the software, systems, methodology and know-how used to provide the Services are owned by Death2Spam (or its licensors). Death2Spam's intellectual property rights, including rights to (i) the Service developed and provided by Death2Spam; and (ii) all software associated with the Service, are protected by U.S. and international intellectual property laws. Nothing in this Agreement assigns to the Customer any interest in that intellectual property. Accordingly, the Customer agrees not to copy, reproduce, alter, modify, or create derivative works from the Service. 10.2 Death2Spam's intellectual property rights do not include third-party content used as part of Service, including the content of communications appearing on the Service. Death2Spam does not claim any ownership in any of the content, including any text, data, information, images, photographs, music, sound, video, third-party content, or other material, that transits or is stored in a Death2Spam account. Death2Spam will not use any of the Customer's content for any purpose except to provide the Service. 10.3 The Customer must not and must not attempt to, and must not permit any other person to, take any action which may harm or cause disruption to or failure of the software or systems used by Death2Spam in the provision of the Services.
11.1 To the extent permitted by law, Death2Spam excludes all warranties in respect of the Services, whether express or implied by statute, common law or otherwise. 11.2 Death2Spam disclaims any and all responsibility or liability for the accuracy, reliability, performance, legality, operability, or availability of the Death2Spam services. Death2Spam disclaims any responsibility for the misdelivery, deletion, failure to store, or untimely delivery of any emailed information, content or material. Death2Spam disclaims any responsibility for any harm resulting from downloading or accessing any information or material from the Internet through the Death2Spam services. 11.3 The Death2Spam services, and all materials, information, products and services included in the Death2Spam services are provided "AS IS," with no warranties whatsoever. Death2Spam and its licensors expressly disclaim to the fullest extent permitted by law all express, implied, and statutory warranties, including, without limitation, the warranties of merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. Death2Spam and its licensors disclaim any warranties regarding the security, reliability, timeliness, and performance of the Death2Spam services. Death2Spam and its licensors disclaim any warranties for any information obtained through the Death2Spam services. Death2Spam and its licensors disclaim any warranties for services or goods received through or advertised on the Death2Spam services or received through any links provided by the Death2Spam services, as well as for any information or content received through any links provided in the Death2Spam services. 11.4 The Customer understands and agrees that you download or otherwise obtain material or data through the use of the Death2Spam services at your own discretion and risk and that you will be solely responsible for any damages to your computer system or loss of data that results from the download of such material or data. 11.5 Certain states or other jurisdictions do not allow the exclusion of implied warranties, so the above exclusions may not apply to you. The Customer may also have other rights that vary from state to state and jurisdiction to jurisdiction.
12.1 Death2Spam will have no liability or responsibility to the Customer for any loss, damage or injury whether arising in contract, tort (including in each case negligence), equity, statute or otherwise which does not flow directly or naturally (that is, in the ordinary course of things) from a breach of the Agreement including, in each case consequential loss of business or profits or other loss. 12.2 Under no circumstances shall Death2Spam or its licensors be liable to any Customer on account of that Customer's use or misuse of or reliance on the Death2Spam services. Arising from any claim relating to this agreement or the subject matter hereof such limitation of liability shall apply to prevent recovery of direct, indirect, incidental, consequential, special, exemplary, and punitive damages whether such claim is based on warranty, contract, tort (including negligence), or otherwise, (even if Death2Spam or its licensors have been advised of the possibility of such damages). Such limitation of liability shall apply whether the damages arise from use or misuse of and reliance on the Death2Spam services, from inability to use the Death2Spam services, or from the interruption, suspension, or termination of the Death2Spam services (including such damages incurred by third parties). This limitation shall also apply with respect to damages incurred by reason of other services or goods received through or advertised on the Death2Spam services or received through any links provided in the Death2Spam services, as well as by reason of any information or content received through or advertised on the Death2Spam services or received through any links provided in the Death2Spam services. This limitation shall also apply, without limitation, to the costs of procurement of substitute goods or services, lost profits, or lost data. Such limitation shall further apply with respect to the performance or non-performance of the Death2Spam services or any information or merchandise that appears on, or is linked or related in any way to, the Death2Spam services. Such limitation shall apply notwithstanding any failure of essential purpose of any limited remedy and to the fullest extent permitted by law. 12.3 Without limiting the foregoing, under no circumstances shall Death2Spam or its licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning. 12.4 Some states or other jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitations and exclusions may not apply to you.
13.1 The Customer agrees to hold harmless and indemnify Death2Spam, and its subsidiaries, affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to the Customer's use of the Service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Death2Spam will provide the Customer with written notice of such claim, suit or action.
14.1 Death2Spam may terminate the Agreement with immediate effect on written notice to the Customer if the Customer: 14.2 The Customer may terminate the Agreement upon one month's written notice to Death2Spam or its agents.
15.1 Death2Spam is not responsible for delays or failures in performance resulting from acts beyond its reasonable control. Such acts shall include but not be limited to government regulations imposed after the Commencement Date, civil commotion, riots, insurrections, strikes, terrorism, epidemics, acts of war, revolutions, power failures, communication line failures, earthquakes and other natural disasters.
16.1 Where any dispute arises between the parties concerning the Agreement or the circumstances, representations, or conduct giving rise to the Agreement, no party may commence any court or arbitration proceedings relating to the dispute unless that party has complied with the procedures set out in this clause 16. 16.2 The party initiating the dispute ("the first party") must provide written notice of the dispute to the other party ("the other party") and nominate in that notice the first party's representative for the negotiations. The other party must within seven days of receipt of the notice, give written notice to the first party naming its representative for the negotiations. Each representative nominated shall have authority to settle or resolve the dispute. 16.3 If the parties are unable to resolve the dispute by discussion and negotiation within 14 days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to independent mediation. 16.4 The mediation must be conducted in terms of a mutually-agreed Mediation Agreement. The mediation shall be conducted by a qualified Mediator at a fee agreed by the parties.
17.1 Implied Terms: Except as set out in the Agreement, all conditions, terms and warranties (including without limitation, warranties and conditions as to fitness for purpose and merchantability) whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law. 17.2 Entire agreement: The Agreement constitutes the complete and exclusive statement of the agreement between the parties superseding all proposals or prior agreements, oral or written, and all other communications or understandings between the parties relating to the subject matter of the Agreement. Any waiver of any provision of the Terms of Service will be effective only if in writing and signed by Death2Spam. 17.3 Form of notices: Notices under the Agreement must be in writing and personally delivered or sent by post, facsimile or electronic mail, in the case of notices to the Customer, to the postal address or facsimile number or email address provided to Death2Spam at the time that the Customer accepted these terms and conditions, and in the case of notices to Death2Spam to P.O. Box 3168, Federal Way, WA, 98063, USA (or any address or facsimile number or electronic mail address subsequently provided by a party on five days notice in writing to the other party). 17.4 Receipt of notices: Notices delivered personally or via electronic mail will be deemed received on delivery, notices sent by international airmail post will be deemed received seven days after posting, and notices sent by facsimile will be deemed received on production of a transmission report specifying the correct number of pages sent, the date and time of transmission and that transmission was successful, provided that the onus of proving receipt will be on the sender.
18.1 This Agreement will be governed by and construed in accordance with the laws of the State of Washington, USA, without giving effect to its conflict of laws, provisions or the Customer's actual state or country of residence. Any claims, legal proceeding or litigation arising in connection with the Service will be brought solely in Seattle, Washington, USA, and the Customer consents to the jurisdiction of such courts. | |
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