Terms of Service
1. DESCRIPTION OF SERVICES. Intertune will provide an outbound SMTP relay service, commonly referred to as a smarthost with antispam detection to prevent users of Customer from sending out spam while delivering good mail to the destination. This is collectively referred as the "Services". Intertune may from time to time change, update or enhance the Services as it deems necessary.
2. CUSTOMER OBLIGATIONS. Customer will add SMTP users within their Intertune account and will configure their SMTP servers and/or email clients to utilize the authentication information supplied from the Intertune system. Customer acknowledges and agrees that Intertune will not provide the Services to Customer unless Customer is in compliance with Intertune's acceptable usage policies and technical prerequisites ("AUP") that are applicable to the Services. Customer agrees not to: (i) use the Services for any purpose that is in violation of any applicable law or is otherwise an infringement on the rights of any person or entity, or violates the AUP. In the event Customer provides similar services; (ii) modify, decompile, reverse engineer, disassemble or reproduce any components of the Services (iii) interfere with or disrupt the Services or any networks connected to Services; (iv) conduct fraudulent activities, including the initiation or propagation of any Malware; (v) take an unreasonable or disproportionately large load (traffic bandwidth or number of messages per user exceeding 150% of the average for all Intertune customers using similar services) on Intertune infrastructure providing the Services, unless the parties agree to a bandwidth overage charge rate as set forth in a Service Order Form; (vi) impersonate any person or entity or falsely state or otherwise misrepresent an affiliation with a person or entity; (vii) allow the use of its systems to be used as Open Proxy, or otherwise permit the use of the Services by any third party users that are not bound by these Terms and Conditions (each of (i) to (vii), a "Prohibited Use"). At Intertune's reasonable request, Customer shall provide to Intertune comments, criticisms, suggested improvements and other feedback, about the use, operation, functionality and features of the Services (collectively, the "Feedback"). The Feedback shall include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, user-desired features and the results of any and all benchmark or similar testing conducted within the term of this Agreement. In addition, Customer shall report to Intertune any unusual, unplanned or out-of-the-ordinary performance of the Services observed by any of Customer's personnel. Customer agrees that Intertune has the unrestricted right to use the Feedback at its sole discretion, without notice to, payment to or consent from Customer, provided that Intertune's use of the Feedback complies with the nondisclosure obligations set forth in Section 10 below. Customer agrees not to disclose Feedback to any third party without the express written consent of Intertune.
3. SYSTEM ADMINISTRATOR. Customer will provide Intertune with technical contact information regarding Customer's system administrator ("System Administrator") who Customer hereby authorizes and directs to act on its behalf and provide the information required by Intertune to configure and manage the Services. Intertune will provide Customer with a confidential access code to the administration tool. Customer agrees that only the System Administrator will have access to the access code and the access code shall remain the Confidential Information of Intertune.
4. TERM. The initial term of this Agreement is specified in the Order Form (the "Initial Term"). This Agreement shall renew for successive terms of equal length as the Initial Term (each a "Renewal Term") unless either party provides written notice of its intent not to renew this Agreement at least five (5) days prior to the end of the then current term. During any Renewal Term, the parties shall be bound by the provisions of these Terms and Conditions and Service Level Agreements in the form published on Intertune's website at https://www.sendmetric.com/agreement.html as of the effective date of the Renewal Term. Customer acknowledges and agrees that billing for the Services shall continue through the effective date of the termination, subject to the notice requirement and other applicable terms herein.
5. FEES; INVOICE; AUDIT. Customer will pay the Fees set forth on the Order Form, which are subject to change based on Customer's usage of the emails delivered included in their plan, or at the discretion of Intertune at the beginning of any Renewal Term. Each plan includes a number of emails delivered (as defined by any message Customer sends Intertune and Intertune delivers to recipient of Customer message), if the Customer usage results in more delivered emails than their plan specifies they will be charged for overages. The pricing for the plans and number of emails included are available on www.sendmetric.com when Customer signs up and those are the agreed upon rates unless Intertune communicates of price changes via email to Customer. Typically overages are charged for the previous month based on the previous months usage along with the subscription renewal for the current month. If the Customer cancels the Services during the Initial Term (first 10 days) or any Renewal Term they will not be entitled to a refund unless the service is canceled within 10 days from sign up and does not go over the pro-rated number of delviered emails included during the pro-rated Initial Term. In cases where customers send more delivered emails than included in the Initial Term, Customer may owe Intertune money at the termination of the Services and Intertune will charge the overage fees to the Customer credit card on file. Customer shall pay all invoiced Fees within fifteen (15) days of the invoice date. Any payment not received when due shall accrue a late fee at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, whichever is lower. Intertune will have the right at its expense and with reasonable prior notice to Customer to audit Customer's compliance with the terms of this Agreement, including but not limited to the number of emails delivered. If any audit reveals that Customer has underpaid the Fees due to Intertune hereunder, Customer will promptly remit such underpaid amounts plus late fees thereon at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. Customer agrees to have their credit card on file billed automatically every Renewal Term for Services and overage fees and continue indefinitely unless the customer cancels the service as defined in Section 4 above.
6. SUSPENSION OF SERVICE. Intertune may suspend the Services as follows: a) immediately if Intertune deems it necessary to terminate any Prohibited Use either directed at or originating from Customer's domains or servers; or b) upon written notice to Customer if Customer breaches this Agreement and fails to cure such breach to Intertune's satisfaction within five (5) days after Intertune's written notice specifying the breach. Suspension of Services shall be without prejudice to any rights or liabilities accruing prior to or during the suspension, including but not limited to Customer's obligation to pay Fees.
7. TERMINATION. Intertune may terminate this Agreement for cause immediately upon email notice to Customer: (a) in the event that Intertune does not receive Customer's payment of any non-disputed Fees within thirty (30) days of the invoice date, (b) Customer fails to remedy any situation giving rise to a Suspension of Service; (c) Customer commits a material breach of this Agreement; or (d) Intertune makes a reasonable determination that Customer's traffic volume is disproportionately large. In the event of (d) above, Intertune may request that Customer enter negotiations regarding a Fee adjustment as a prerequisite to continuing Services. Within thirty (30) calendar days after termination or expiration of this Agreement, Customer will: (a) return to Intertune all materials provided to Customer by Intertune under this Agreement; and (b) certify in writing through an authorized representative of Customer that such return has been effected.
8. CUSTOMER SERVICE. Following signup Customer will receive information on how they may contact Intertune for technical support. Intertune may from time to time perform maintenance on or otherwise temporarily suspend the Services. Intertune will use commercially reasonable efforts to minimize any disruption of Services.
9. SECURITY. Although information transmitted to Intertune is stored in secure operating environments, Customer understands that no data transmission over the Internet can be guaranteed to be 100% secure. Intertune is not responsible for any interception or interruption of any communications through the Internet. Customer is responsible for maintaining the security of its networks, servers, applications and access codes.
11. INTELLECTUAL PROPERTY. The Services (including any associated software, hardware, websites, passwords, components and tools) are and will remain the sole property of Intertune or its licensors, respectively. Intertune or its licensors, respectively, will retain sole ownership of all right, title and interest in and to the Services, as well as any derivative works thereof, including but not limited to copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights ("Intellectual Property"). Customer agrees, on behalf of itself, its employees and agents, that it will not remove or alter any trademarks, or other proprietary notices, legends, symbols, or labels appearing in the Service or other materials delivered by Intertune.
12. THIRD PARTIES. The Services may contain products of independent third parties. Intertune makes no warranty as to the accuracy of any such third party information.
13. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY. ANY USE BY YOU OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED "AS IS," AND Intertune AND ITS LICENSORS MAKE NO WARRANTIES OF ANY KIND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR NON-INFRINGEMENT. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, Intertune OR ITS LICENSORS' AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE FEES PAID BY CUSTOMER FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL Intertune OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOSS OF CUSTOMERS, LOSS OF, OR LOSS OF USE OF, ANY SOFTWARE, DATA, WEB TRAFFIC, OR EMAILS, BUSINESS INTERRUPTION, DELAYS OR FAILURE TO DELIVER WEB TRAFFIC OR EMAIL, DELAYS OR FAILURE TO DETECT UNDESIRABLE WEB TRAFFIC OR MALWARE, OR WRONGFULLY IDENTIFYING WEB TRAFFIC OR EMAIL FOR FILTERING OR AS CONTAINING MALWARE) HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF Intertune HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. NEITHER Intertune NOR ITS LICENSORS WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED.
14. INDEMNIFICATION. Customer agrees to indemnify, defend, and hold Intertune harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs and expenses (including reasonable attorneys' fees) arising out of or relating to (i) any breach by Customer of this Agreement; (ii) any information or content passing through the Services and/or Intertune's network to or from Customer; (iii) any taxes arising from the Services whether now in effect or imposed in the future (excluding taxes based on Intertune's income); and (iv) claims by third-parties arising from Customer's use of the Services (excluding claims that the Services, as provided by Intertune, infringe third party intellectual property rights). Intertune agrees to indemnify, defend, and hold Customer harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs and expenses (including reasonable attorneys' fees) arising out of third party claims that Customer's authorized use of the Services, as provided by Intertune, infringes the intellectual property rights of such third party. In the event that a claim of infringement is made or threatened, Intertune may: (i) modify the Services to render them non-infringing; (ii) secure for Customer the right to use the Services; or (iii) terminate this Agreement. The foregoing states the entire liability of Intertune with respect to infringement.
15. WAIVER. The failure of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
16. JURISDICTION/GOVERNING LAW; COSTS; LIMITATION PERIOD. The laws of the State of California shall govern this Agreement and any interpretations or constructions thereof. Further, the place of performance and transaction of business shall be deemed to be in the County of San Diego, State of California, and in the event of litigation, the exclusive venue and place of jurisdiction shall be the state courts located in San Diego, California, or federal courts located in San Diego, California, as applicable. The parties hereby submit themselves to the personal jurisdiction and venue of such courts. In any dispute related to this Agreement or the Services, the parties irrevocably waive any right they may have to a jury trial, and such waiver is a material inducement to Intertune entering into this Agreement and providing the Services. In any dispute regarding the enforcement of this Agreement, the prevailing party shall be entitled to recover all costs and fees, including attorneys' fees, incurred by such prevailing party in enforcing the terms of this Agreement. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of this Agreement must be filed within one (1) month after such claim or cause of action arises.
17. NOTICE. Any notice required in this Agreement shall be delivered by certified US mail sent to the following address: 5663 Balboa Ave Suite 379, San Diego, CA 92111. Notices shall be deemed effective upon receipt.
18. BINDING EFFECT AND ASSIGNMENT. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Customer may not assign this Agreement without the prior written permission of Intertune.
19. PUBLICITY. Customer agrees that Intertune may identify Customer as a customer during the term of the Agreement in press releases, websites, newsletters, oral and written presentations, and other marketing and promotional material. Customer agrees to act as a reference and to provide comments for publication upon Intertune's request, provided that such request does not impose an unreasonable burden on Customer.
20. SURVIVAL. Rights and obligations which by their nature should survive will survive the termination or expiration of this Agreement, including but not limited to Sections 5, 7, 10-18, and 20.
21. SERVICE AVAILABILITY GOAL AND COMMITMENT. Intertune's goal is to achieve 100% Service Availability for all customers. "Service Availability" means that Intertune is available to receive SMTP messages from Customer and process these messages for external delivery, outside of scheduled maintenance windows. Subject to the Exceptions set forth below, Intertune's Service Availability shall be 99.9% for the Services.
22. SERVICE AVAILABILTY FAILURE REPORTING PROCESS. When Customer notices any Service Availability failure or believes that the failure occurred, Customer will inform Intertune's Customer Support Department in writing electronically within ten (10) business days of first notice. Customer agrees that the remedies set forth in this SLA are conditioned upon Customer's compliance with this notification requirement.
23. REMEDIES AND EXCEPTIONS. If Service Availability is below 99.9% for a given month ("Deficiency"), and none of the Exceptions defined below is applicable, and provided that Customer is not in breach of the Agreement, Customer shall have the following sole remedy: Intertune shall issue a credit on Customer's account for that month, and such credit can be used only towards future billing charges. The amount of the credit shall be the pro-rata service fee calculated by multiplying the Failure Percentage with Customer's total monthly fee in the month during which the Deficiency occurs, and if Deficiency occurs for Customer for three consecutive calendar months, Customer has the option to terminate the Agreement by giving Intertune fifteen (5) days prior written notice. Customer shall not have any remedies under this section of the SLA for the Deficiency caused by or associated with any of the following ("Exceptions"): (a) scheduled maintenance and emergency maintenance and upgrades; (b) unavailability of or interruption or delay in telecommunications or third party services (c) circumstances beyond Intertune's reasonable control, including, without limitation, acts of God, outages elsewhere on the Internet, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike, earthquake, other natural disaster or other labor disturbance, failure of third party software; (d) DNS issues outside the direct control of Intertune; (e) Customer's acts or omissions, including without limitation, any negligence, willful misconduct, or engaging in Prohibited Use or otherwise use of the Intertune Services in breach of the Agreement; or (f) Customer's email servers have not been configured to send email to Intertune or are misconfigured and not correctly sending mail for users.
24. SCHEDULED MAINTENANCE. Intertune will provide Customer with at least 24 hours advance notice on scheduled maintenance, which includes server, data center, and software maintenance and upgrades. Intertune will make commercially reasonable efforts to ensure that scheduled maintenance that affects the availability of Intertune Services for more than thirty (30) minutes is performed between 10:00 PM and 4:00 AM U.S. Pacific Time, Monday through Friday, or between 12:00 noon to 6:00 AM U.S Pacific Time on Saturdays, Sunday, and holidays.
25. DISPUTE RESOLUTION. If a dispute arises about whether or not Service Availability was affected or whether an Exception occurred, Intertune shall make a determination in good faith based on its portal audit trails, system logs, monitoring reports and configuration records, the relevant part of which Intertune shall make available for auditing by Customer at Customer's request.