Terms of Service
CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THE SERVICES OF ONLINE SPAM SOLUTIONS LLC (THE “SERVICES”). THIS AGREEMENT GOVERNS THE USE OF THE SERVICES. BY USING THE SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS CONTAINED HEREIN. IF YOU DO NOT AGREE WITH THIS AGREEMENT, DO NOT USE THE SERVICES.
Definitions
“Online Spam Solutions” “Online Solutions”, and “Provider” means Online Spam Solutions LLC, a Illinois, USA limited liability company.
“Online Spam Solutions Network” “Our Network”, “Network”, and “Provider Network” means the network of data centers, data connections and equipment that Online Spam Solutions LLC maintains to provide the Service.
“Authorized Reseller” means parties authorized by Online Spam Solutions to purchase and provide Services to other individuals, groups or businesses.
“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 or information provided in writing to the Customer describing the use of the Service.
“Downtime” means any time during which the Service is unavailable from Online Spam Solutions, measured from the time of actual interruption of the Service, until the time such Service is restored.
“Exchange User” means an individual email account on the Service.
“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). This may also include any correspondence between Online Spam Solutions and Customer (including email) stipulating the same information.
“Privacy Policy” means Online Spam Solutions’s privacy policy posted on the Online Spam Solutions Website.
“Receiving Party” means the party receiving Confidential Information from the other party.
“Service” or “Services” means Online Spam Solutions Hosted Exchange Email Service, Spam Filtering Service, Email Archiving Service, including any Documentation, subscribed to by Customer.
“Spam” means unsolicited bulk email.
“Subscriber” means any customer of Online Spam Solutions 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”, “Exchange User” and “Full Exchange User” means an individual who has access to the Service via the Internet.
“Website” means the website with the URL: www.onlinespamsolutions.com.
1. Changes
Online Spam Solutions 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 Online Spam Solutions. 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.
2. Eligibility
Online Spam Solutions 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. Billing and Payment Information
3.1 General Payment
Customer acknowledges and agrees that Customer is responsible for paying the fee that applies for each period during which the Term continues. Customer agrees to pay for the Services in advance of the time period during which such Services are provided. Subject to applicable laws, rules, and regulations, payments received will be first applied to the oldest outstanding invoice in your billing account.
3.2 Auto Renewal.
Upon Customer giving Online Spam Solutions Customer’s credit card information, Customer agrees that Online Spam Solutions 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 Online Spam Solutions does not receive payment for Customer’s account, as required, Online Spam Solutions may terminate Customer’s account. Customer’s payment reconfirms Customer’s consent to be bound by the terms of this Agreement.
3.3 Fraud.
It is a violation of this Agreement for you to misuse or fraudulently use credit cards, charge cards, electronic funds transfers, electronic checks, or any other payment method. Online Spam Solutions may report any such misuse or fraudulent use, as determined in Online Spam Solutions sole discretion, to governmental and law enforcement authorities, credit reporting services, financial institutions and/or credit card companies.
3.4 Late Payment.
All invoices must be paid within thirty (30) days of the invoice due date. Any invoice that is outstanding for more than thirty (30) days may result in the suspension or termination of Services. Access to the account will not be restored until payment has been received. If you fail to pay the fees as specified herein, Online Spam Solutions may suspend or terminate your account and pursue the collection costs incurred by Online Spam Solutions, including without limitation, any arbitration and legal fees, and reasonable attorneys’ fees. Online Spam Solutions will not activate new orders or activate new packages for customers who have an outstanding balance on their account.
3.5 Invoice Disputes.
You have ninety (90) days to dispute any charge or payment processed by Online Spam Solutions. If you have any questions concerning a charge on your account, please reach out to our billing department for assistance.
3.6 Foreign Currencies.
Exchange rate fluctuations for international payments are constant and unavoidable. All refunds are processed in U.S. dollars and will reflect the exchange rate in effect on the date of the refund. All refunds are subject to this fluctuation and Online Spam Solutions is not responsible for any change in exchange rates between the time of payment and the time of refund.
4. Termination
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 a quarterly, annual or greater period and is requested prior to the end of the active Subscription period, Online Spam Solutions 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 Subscription period discount that was given. Online Spam Solutions does not provide refunds for any part of a month during which a termination occurs. Requests for cancellation must be submitted via email to support@onlinespamsolutions.com with the words: “Cancel Hosted Exchange Email Subscription” in the subject line of the email. Upon termination, Customer will no longer have access to, or be able to use, the Service except as provided in “5” below relating to facilitating Customer’s move to another service.
5. Transition After Termination
If Customer’s Subscription is terminated, and Customer is not in breach of the terms of this Agreement, upon request of Customer, Online Spam Solutions will use commercially reasonable efforts to provide no less than two (2) weeks of interim service in order to facilitate a transition of Customer’s service to another provider or in-house implementation. Online Spam Solutions may charge a commercially reasonable amount for such services. Transfer of Customer data from our Service is solely the responsibility of the Customer. For our Hosted Exchange Service and Archiving Service the only approved method of transport is .PST file export. .
6. Right to use the Service
Subject to the terms of this Agreement and proper payment to Online Spam Solutions, Online Spam Solutions 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.
7. Restrictions on Use
Except for Authorized Resellers, 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 third 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.
8. Ownership
Customer acknowledges that the Service is the exclusive property of Online Spam Solutions. Online Spam Solutions and its suppliers retain all rights, title and interest in and to all 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.
9. Customer Obligations
During the Term of this Agreement, Customer shall have the following obligations, in addition to those set forth elsewhere in this Agreement:
9.1 Customer shall be solely responsible for its connection to the Internet and shall maintain sufficient bandwidth and connection quality to allow trouble-free browsing, data uploading and downloading, 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.
9.2 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.
9.3 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.
9.4 Customer shall be responsible for ensuring that Customer’s email is directed through the Service by making and maintaining the appropriate configuration settings.
10. Hosted Exchange Limitations
10.1 Mailbox Storage
Subject to compliance with the terms of this Section, each Exchange User is provided with unlimited mailbox storage. Exchange Users of the Service do not need to manage their mailbox quotas or be concerned about billing surprises because of normal increases in Exchange User email activity. There are, however, limits to how large a mailbox can grow before performance will be unacceptably degraded. Unlimited mailbox storage applies only when the User is not receiving emails in response, or otherwise relating, to Spam sent by the User. Additionally, unlimited mailbox storage applies only when over 80% of the email received is either live person to live person or has not been solicited by or consented to by the User. For example, forwarding all faxes addressed to more than one individual to the same User’s mailbox or using one mailbox as an “archive” to store emails addressed other than to the User to whom the mailbox is assigned is expressly prohibited.
10.2 Top Level Folders and Sub-Folders.
The Exchange server itself retains ownership of the two top layers of the public folder hierarchy, “Public Folders”, and under that folder, the “All Public Folders”. This is set by the Exchange server architecture and cannot be modified. The end-user control panel allows Client to create and manage Top-Level public folders. Only Top-Level public folders can be made visible in the Global Address List.
10.2 Address Lists.
Online Spam Solutions provides one Global Address List and one Offline Address List for Client’s account. The Global Address List and Offline Address List are available to all users within Client’s account. The Global Address List contains all mailboxes, contacts and distribution lists for Client’s account, unless Client explicitly chooses to hide any of these objects from Client’s Global Address List. Client’s Offline Address List is a replica of Global Address List. Client’s Offline Address List is used when Client are working offline or, in MS Outlook 2007 or above, in the activated cache mode. The Global Address List is replicated to Offline Address List on a daily basis.
10.3 Anti-Virus Checking.
Online Spam Solutions uses third-party, anti-virus software. This software is configured to check all inbound and outbound messages. The virus-detecting heuristics of the software are regularly updated. Messages sent between mailboxes on the server are not scanned. If a virus is detected or if a message attachment cannot be scanned (for example, when it is encrypted or corrupted), the message and its attachments may be permanently deleted. Messages with attachments larger than 5MB may not be scanned. Online Spam Solutions advises Client to use up-to-date, local anti-virus software. Online Spam Solutions is not responsible for any damages due to viruses, including infection of end-user devices or lost or corrupted messages.
10.4 Wireless Devices.
Success in configuration and set up of wireless Exchange server access (e.g., cell phoned, tablets) is highly dependent upon the device and the wireless access provider chosen by Client. Therefore Online Spam Solutions can only assure that it will make commercially reasonable efforts to assist Client in configuring and supporting Client’s wireless Exchange server access for the portions of the access not under Online Spam Solutions control.
11. 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. Online Spam Solutions shall have the right to suspend or terminate the Service, and to take such defensive action as may at Online Spam Solutions sole discretion be deemed necessary in the event of any attack upon the Service or network.
12. Confidentiality
12.1 The parties need to assure protection of their respective trade secrets and other confidential information (“Confidential Information”).
12.2 Confidential Information of Online Spam Solutions 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.
12.3 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
12.4 Notwithstanding any other provision of this Agreement, Confidential Information shall not include:
(a) Information that is, or subsequently becomes, within the knowledge of the public generally through no fault of the Receiving Party;
(b) Information that was known to the Receiving Party at the time of receipt and before obtained from the Disclosing Party; or
(c) Information that is developed independently by the Receiving Party, and not the Disclosing Party or using any of the Disclosing Party’s information.
12.5 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.
12.6 The parties agree that all Confidential Information shall remain protected under this Agreement for so long as such information is not subject to any of the exceptions set forth in “12.4” above.
12.7 Notwithstanding the foregoing, in the event that the Receiving Party receives a subpoena or other validly issued administrative or judicial process requesting any of the documents or materials or other disclosure of Confidential Information, the Receiving Party shall, if not prohibited by law, promptly notify the Disclosing Party and tender to the Disclosing Party the defense of such demand. Unless the demand shall be timely limited, quashed or extended, the Receiving Party shall thereafter be entitled to comply with that demand to the extent required by law. If the Disclosing Party so requests, the Receiving Party shall cooperate, at the Disclosing Party’s expense, in the defense of such demand.
13. Incoming and Outgoing Email Protection Policies
13.1 Incoming Email Policy
Online Spam Solutions Exchange Service is protected by Spam Firewalls from Barracuda Networks to help protect the security of the entire system. The Spam Filtering Service includes a comprehensive set of tools for filtering spam (unsolicited commercial email or UCE), viruses and other malicious content from incoming and outgoing email. Online Spam Solutions does not provide any warranties regarding the Spam Filtering Service.
13.2 Outgoing Email Policy
Sending Spam using Online Spam Solutions system is not permitted or tolerated. Online Spam Solutions defines Spam as email that is both bulk and unsolicited. Online Spam Solutions will not be held responsible if Customer’s domain name is blocked by internet service providers (ISPs) for sending Spam. Online Spam Solutions reserves the right to suspend or cancel Online Spam Solutions accounts that knowingly or unknowingly send Spam.
14. Modifications to Service
Online Spam Solutions 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 Online Spam Solutions customers that have contracted for the appropriate level of Service. Updates shall not include any release, option or future product which Online Spam Solutions licenses separately or which is not included as part of the Service.
15. Service Availability.
15.1 Uptime.
Online Spam Solutions shall provide at least 99.999% Service Availability, measured on a per calendar-month basis. Service Availability is defined as the ability of a User to (a) access and retrieve information from his or her mailbox, and (b) send and receive messages via his or her mailbox using the Service, each on per mailbox basis, provided that Client’s account is active, in good standing and enabled. Unavailability caused by issues beyond Online Spam Solutions reasonable control, including denial of service or similar attacks, mail bombs, DNS resolution, Domain Name expiration, Internet availability, SYN attacks, and other events or any other Force Majeure event will be excluded from Service Availability calculations.
15.2 Service Availability Monitoring
Online Spam Solutions monitors its Network and the Services as a whole but does not monitor individual mailbox or mobile device availability. Online Spam Solutions uses a combination of methods to validate availability, including but not limited to Exchange HTTP access availability and internal mail flow monitoring. These checks are run on predetermined intervals with specific failure thresholds with respect to the service being provided. If two or more consecutive tests fail, the lack of Service Availability will be noted as the number of minutes between the first and the last failed tests. Any unavailability less than five minutes in duration will not be recorded.
Online Spam Solutions does not guarantee incoming and outgoing mail delivery time and thus it is not included in its calculations or considered an outage if mail flow is delayed. If a delay in mail flow is due to a complete Service, server, or network outage, Service Availability will be calculated related to those services only. Online Spam Solutions will use commercially reasonable efforts to provide reasonable times for incoming and outgoing mail flow.
16. Credit for Service Availability Non-Compliance Service Availability.
If Service Availability for the first 30 day period (or any calendar month thereafter) is below 99.999%, Online Spam Solutions will issue a credit (“Service Availability Credit”) to Client according to the following schedule:
| Service Availability* | Amount of the refund as a percentage of monthly fee for affected Service* |
| 99.0% to 99.999% | 3% of monthly Hosted Exchange fee credited |
| 98.0% to 98.99% | 5% of monthly Hosted Exchange fee credited |
| 95.0% to 97.99% | 10% of monthly Hosted Exchange fee credited |
| 90.0% to 94.9% | 25% of monthly Hosted Exchange fee credited |
| 89.9% or below | 2.5% of monthly Hosted Exchange fee credited for every 1% of lost availability up to the maximum total penalty limit |
To receive a Service Availability Credit, (a) Client’s account must be in good standing with Online Spam Solutions, (b) Client must send a Technical Support notification reporting the service interruption within 72 hours of the event, and (c) the Client notifies Online Spam Solutions in writing of a claim against the SLA within five business days of the end of the outage. Credit requests must include Client’s account username and the dates and specific times that the Service availability was below the prescribed levels.
Online Spam Solutions will compare information provided by Client to the monitoring data Online Spam Solutions maintains. A Service Availability Credit is issued only if Online Spam Solutions confirms from the monitoring data warranting the Service Availability Credit.
* Online Spam Solutions will calculate the Service Availability Credit based on the type of particular Service for which Service Availability was below the prescribed level, the fees for the particular Service and the percentage of overall individual mailboxes or other units adversely affected. For example, if the Service Availability Credit pertains to the Service Availability of o mailboxes out of 200 mailboxes, the Service Availability Credit would be calculated as 1% of the monthly fee for the mailboxes times the perent of monthly fee credited.
The limits and sole remedies regarding Service Availability and Service Availability Credits are set forth in Section 17 of this Service Level Agreement.
17. Total Credit Limits; Sole and Exclusive Remedies.
Total Service Availability Credits. The total Service Availability Credit due to Client for any account may not exceed 50% of the monthly fees charged to that account during the month for which the Service Availability Credit is to be issued, unless the amount to be credited is less than $1.00 in which case the credit amount will be $1.00. Only one Service Availability Credit and credit level is available in any given calendar month.
Notwithstanding anything set forth in the Agreement or this Service Level Agreement, the Service Availability Credit described in Section 16 shall be Client’s sole and exclusive remedy in connection with any service unavailability as described in section 15 of this Service Level Agreement or breach by Online Spam Solutions of the Agreement or this Service Level Agreement.
18. Maintenance
18.1 Scheduled Maintenance.
To ensure optimal performance and security of the Services, Online Spam Solutions will routinely perform maintenance on a regularly scheduled basis within its published maintenance windows. This may require specific Services to be suspended during the maintenance period. Online Spam Solutions schedules maintenance windows according to its policies, which are available upon request. Service unavailability due to scheduled maintenance will be excluded from Client’s uptime calculations for availability. Online Spam Solutions will use commercially reasonable efforts to notify Client in advance of any scheduled maintenance that may adversely affect Client’s Services.
18.2 Emergency Maintenance.
Under certain circumstances Online Spam Solutions may need to perform emergency maintenance, such as security patch installation or hardware replacement. Online Spam Solutions will not be able to provide Client with advanced notice in case of emergency maintenance. Service unavailability due to emergency maintenance will be excluded from the uptime calculations.
18.3 Hardware Replacement.
Online Spam Solutions will use industry standard practices to determine whether server hardware is functioning properly and will replace non-functioning hardware with similarly functioning hardware. Online Spam Solutions shall use commercially reasonable efforts to implement hardware replacement within four hours from the time the problem is identified. In the case where this time is exceeded, the excess downtime is counted against the Service Availability Credit.
18.4 Log Files.
Online Spam Solutions adheres to a routine log maintenance and clean-up schedule in order to optimize disc space for our Services. Online Spam Solutions does not guarantee the availability or retention of any log files.
19. Technical Support.
Online Spam Solutions will provide Client through Client’s authorized account contacts with technical support on setting up and configuring Client’s account, access to the Services, and other issues related to the Services. Only Client’s authorized account contacts may request information, changes or technical support pursuant to the Agreement.
The following areas are covered by Online Spam Solutions support:
• Connectivity to the Online Spam Solutions Service to enable the sending and receiving of email.
• Configuration of select mail programs (including Microsoft Outlook® and Apple Mail) for Android, Apple, and Windows devices.
• Creation of additional mailboxes, distribution lists, domain and user aliases.
• Issues related to Public Folders.
• Issues related to security settings within the exchange (server-side) environment.
• DNS related issues.
The following areas are handled on a “commercially reasonable” basis as a courtesy to our customers. Fees may apply:
• Configuration of customer firewall software and/or hardware that could affect connectivity to the Online Spam Solutions service.
• Installation of Microsoft Outlook® Software.
• Configuration of customer antivirus software (Norton Antivirus, etc.) that could affect connectivity to the Online Spam Solutions service.
• Issues related to customer’s connection to the Internet (i.e. T1, Cable Modem, DSL Modem, Dial-Up accounts, etc.).
• Issues related to other email accounts or personal folders (non- Online Spam Solutions) configured within customer’s Microsoft Outlook® software.
• Issues related to general use of the Microsoft Outlook® software (i.e. training, etc.)
• Email client software other than Microsoft Outlook®.
• Use of Online Spam Solutions service on a Macintosh or non-Windows computer.
20. Data Integrity and Server Backup.
Online Spam Solutions will utilize various technologies to ensure the integrity of Client’s data on Online Spam Solutions servers and to prevent data loss in the event of hardware failure. Online Spam Solutions will perform routine server backups for disaster recovery purposes only. Server backup scope and scheduling is at Online Spam Solutions sole discretion. ONLINE SPAM SOLUTIONS SHALL NOT PERFORM BACKUP OR RESTORE SERVICES OF CLIENT’S DATA UNLESS SUCH BACKUP OR RESTORE SERVICES ARE SPECIFICALLY NOTED IN A SCHEDULE OF SERVICES. Additional service charges may apply if Online Spam Solutions recovers lost data that Online Spam Solutions is not required to restore, unless agreed to in a customized service plan.
21. Data Retention.
While Client’s account is active, Online Spam Solutions shall retain Client’s data, including but not limited to the content of private mailboxes and public folders within the database information store, active directory, and backup copies. Online Spam Solutions shall not be responsible for retaining any of Client’s data after account termination. All data is deleted from the servers after Client’s account is terminated and from backups during scheduled backup rotation. Online Spam Solutions shall not restore, provide any storage media or send out any data pertaining to terminated accounts, unless specifically noted in a customized service agreement.
22. Warranty Disclaimers
EXCEPT AS OTHERWISE PROVIDED IN SECTION 16, THE SERVICE IS BEING PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND AND “WITH ALL FAULTS”. ONLINE SPAM SOLUTIONS DOES NOT WARRANT THAT THE SERVICE WILL MEET CUSTOMER’S REQUIREMENTS. ONLINE SPAM SOLUTIONS 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.
23. Limitation of Liability
ONLINE SPAM SOLUTIONS 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 ONLINE SPAM SOLUTIONS 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 ONLINE SPAM SOLUTIONS WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO PERSONAL INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF ONLINE SPAM SOLUTIONS
24. Passwords
Online Spam Solutions recommends good password procedures be followed by all Users. It is the Customer’s and User’s responsibility to keep passwords confidential, and to change passwords on a regular basis. Online Spam Solutions is not responsible for any data losses or security issues due to stolen or hacked passwords. Online Spam Solutions recommends the use of passwords that contain letters, numbers, and symbols to lessen the chance of unauthorized access. Online Spam Solutions support does not have access to existing passwords for individual User accounts. For security reasons, Online Spam Solutions support can only reset passwords.
25. Customer Indemnification
Customer agrees to indemnify and hold Online Spam Solutions harmless from any losses arising from claims or demands (including, but not limited to, attorney’s fees) relating to the Service that are attributable to the negligence of Customer, any misuse of the Service by Customer, any violation of Online Spam Solutions Acceptable Use Policy set forth in Section 11 of this Agreement, or the failure of Customer to fulfill its responsibilities under this Agreement. In the event of any such claim or demand, Online Spam Solutions 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 Online Spam Solutions or its Service is not adversely affected by such control or settlement.
26. Transmission of Data
Customer agrees that Online Spam Solutions is not responsible for any unauthorized access or modification of Customer’s data whilst in electronic transmission to or from the Online Spam Solutions data centers. Customer also agrees that Online Spam Solutions is not responsible or liable for any content sent using, or received from, the Online Spam Solutions service including that which may be illegal, obscene, defamatory, threatening or that may violate any trademark or copyright.
27. HIPAA Disclaimer.
We are not “HIPAA compliant”.
Customer is solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. Customer acknowledges that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. Online Spam Solutions does not control or monitor the information or data you store on, or transmit through, the Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act (“HIPAA”). Customers requiring secure storage of “protected health information” as defined under HIPAA are expressly prohibited from using the Services for such purposes. Storing and permitting access to “protected health information” is a material violation of this Agreement, and grounds for immediate account termination. We do not sign “Business Associate Agreements” and you agree that Online Spam Solutions is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA.
28. Subpoena and Compliance Fees
Customer agrees to pay Online Spam Solutions costs (and commercially reasonable fees for the time and effort required of Online Spam Solutions employees) for complying with subpoenas, information storage, retrieval, management, and advisory services.
29. 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.
30. Privacy Policy
Customer agrees that Online Spam Solutions may access, use, and disclose Customer’s information as permitted in its Privacy Policy. In this regard, the terms of the Privacy Policy are to be treated as if they were added to and part of this Agreement and shall be binding on all parties hereto.
31. Choice of Law
This Agreement shall be governed by the laws of the State of Illinois, 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.
32. Jurisdiction
Each of the parties does hereby agree that any dispute relating to this Agreement, and any other agreement between the parties, the Privacy Policy or the Service, will be decided by the state and federal courts located in or otherwise having jurisdiction for Lake County, Illinois, and each party agrees that such party is subject to the jurisdiction of such courts.
33. General
Any party entering into this Agreement on behalf of another party does hereby represent and warrant that such action was and is being taken with full authority. 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 or of 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.
34. Independent Contractor
Online Spam Solutions and Customer are independent contractors and nothing contained in this Agreement places Online Spam Solutions and Customer in the relationship of principal and agent, partners or joint venturers. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.
35. Section Titles
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
36. Email Communication
Messages that Customers send to us by e-mail may not be secure. Online Spam Solutions recommends that you do not send any confidential information to us by e-mail. If you choose to send any confidential information to us via e-mail, you agree to accept the risk that this information may be intercepted by a third party.
37. Importation of Data
Online Spam Solutions, from time to time, may assist Customers with importation of existing Customer data onto the Network. This applies to all of our Services including Hosted Exchange, Spam Filtering, and Email Archiving. This ancillary service is performed as a courtesy to or customers and is not part of our core paid services. This data is usually in the form of email messages, calendar information and contact information but may include other types data as well. Online Spam Solutions does not guarantee data integrity in any form during data transfer. Customer is responsible for verifying that any data imported onto the Network was imported accurately and fully. Online Spam Solutions is not responsible if Customer deletes source data before confirming accurate importation.
38. Spam Filter Message Logs
The Spam Filter retains messages in the Message log on a space available basis, available for Customer recovery. This is meant as a convenience in the event a message is accidentally deleted. Online Spam Solutions makes no guarantee as to if or how long a message is retained in the message log. The message log is not an archiving service and individual message may drop off the message log at any time. Online Spam Solutions makes no guarantee as to the accuracy of message log data.
39. Notification of Changes in User Count
It is the responsibility of Customer to notify Online Spam Solutions of any changes in user count that would affect billing. Online Spam Solutions will not be responsible for and will not issue credits for deleted accounts that were not reported and that would lower Customers charges. One example of this would be a Customer deleting user accounts on our Hosted Exchange Service, not notifying Online Spam Solutions of those changes and then requesting a credit for those deleted accounts at a later date, requesting those credits be issued from the time the accounts were deleted. Similarly, if total user count declines on our Spam Filtering Service and Customer fails to notify Online Spam Solutions, no credit will be given. In all cases, once Online Spam Solutions is notified of changes that would lower Customer’s charges, those changes would be reflected on Customers next invoice. Customers with billing periods longer than monthly may be entitled to proration credits. Also, Online Spam Solutions reserves the right to charge for increased user counts from the date the accounts were added. This applies primarily to our Hosted Exchange Service.
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This document was last modified December 29, 2017