This agreement (“Agreement”) sets forth the terms and conditions agreed to by the user (“Client”) and Pretecs Networks Inc. DBA MailWire.com (hereinafter called MailWire). The Client may be defined as an individual person or persons, a business entity, or both. By accepting this agreement, the Client agrees to be bound by the information contained herein and the Acceptable Use Policy (“AUP”) as well as any other agreement or addendum (collectively known as the “Agreements”) pertaining to the products and services (collectively known as the “Services”) offered by MailWire through the website (“Site”) and will be in effect from the date of account creation (“Account”) and/or when Services are ordered (“Order”). You must register and accept the terms of this Agreement in order to use the Services.
This Agreement supersedes any other previous agreement. MailWire can at any time, upon notice, modify, change, or expand upon this Agreement, AUP as well as any other agreement or addendum including any polices or guidelines as it sees fit and at its sole discretion. Unless otherwise noted, these changes will be applicable to all clients whether they be existing or future clients. Any changes or modifications will be effective upon posting on MailWire’s Site. MailWire will provide a period of notice of thirty (30) days prior to making such changes and will provide notice to these changes on the Site however MailWire may modify, change or expand upon their policies and guidelines without notice to you. The continued use of MailWire’s Services by the Client constitutes a binding agreement and understanding to any changes and will be deemed to accept the changed Agreements.
BY SIGNING UP FOR AN ACCOUNT AND BY CREATING AN ORDER FOR SERVICES OF MAILWIRE CREATES A CONTRACT BETWEEN YOU AND US. YOU HEREBY ACKNOWLEDGE HAVING READ THIS AGREEMENT, AUP AND ANY OTHER AGREEMENT OR ADDENDUM AND WILL BE BOUND BY THEM. IF YOU DO NOT AGREE TO THIS, DISCONTINUE USE OF THE SERVICES IMMEDIATELY AND NOTIFY MAILWIRE OF THE TERMINATION OF YOUR ACCOUNT AS DESCRIBED IN SECTION 18(C) (SUSPENSION/TERMINATION) BELOW.
Table of Contents Section
1. Acceptable Use Policy (AUP)
3. Service Level Agreement (SLA)
4. Account Setup and Maintenance of Information.
7. Billing and Payments.
9. Storage Limitations/Records Retention.
10. Third (3rd) Party Content.
13. Disclaimer of Warranties.
14. Limitation of Liability.
15. Requests for Customer Information.
17. Back Up Copy.
18. Changes to MailWire’s Network.
20. Force Majeure.
21. Governing Law/Disputes.
The Client agrees to use the Services in compliance with applicable law and MailWire’s AUP posted at https://www.mailwire/legal/acceptable-use-policy, which is hereby incorporated by reference in this Agreement. The Client agrees that MailWire may, in its reasonable commercial judgment consistent with industry standards, amend the AUP from time to time to further detail or describe reasonable restrictions and conditions on the Client’s use of the Services. Amendments to the AUP are effective on the earlier of MailWire’s notice to the Client that an amendment has been made, or the first day of any Renewal Term that begins subsequent to the amendment. The Client agrees to cooperate with MailWire’s reasonable investigation of any suspected violation of the AUP. In the event of a dispute between MailWire and the Client regarding the interpretation of the AUP, MailWire’s commercially reasonable interpretation of the AUP shall govern.
The Service Level Agreement (the “SLA”) remedies (if any) are the Client’s sole and exclusive remedies for MailWire’s failure to provide the services in accordance with this Agreement. The full SLA is posted at https://www.mailwire.com/legal/sla which is hereby incorporated by reference in this Agreement. The Client agrees that MailWire may, in its reasonable commercial judgment consistent with industry standards, amend the SLA from time to time. The Client agrees that continued use of the Services after changes have been made will be considered expressed consent in acknowledging such changes.
a. The Client agrees that the information provided to MailWire when opening the Account and/or when submitting an Order is accurate and correct
b. The Client is of the age of majority and is legally able to enter in to an Agreement with MailWire.
c. The Client agrees to update any contact information including name, email and mailing address, and phone number.
d. The Client acknowledges that support will only be provided to any contact(s) that are listed on the Account.
e. MailWire may require from the Client that they supply a valid method of payment be kept on file on their Account at the time of the setup of the Account or for the Order of Services. The Client authorizes MailWire to charge that valid payment method for Services provided by MailWire for any outstanding fees for Services.
Services are offered and subject to the availability of the necessary facilities and equipment, and subject to the provisions of this Agreement. We reserve the right not to provide Services of any Order where necessary facilities, equipment or services are not available for any reason whatsoever.
The initial service term of the Agreement shall begin on the date that MailWire generates an e-mail message to the Client announcing the activation of the Client’s Service (the “Service Commencement Date”) and shall continue for the period of time stated in the Order (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically be renewed (the “Renewal Term”) for the same period as the Initial Term. The Initial Term and any Renewal Term may be referred to collectively in this Agreement as the “Term.”
a. Services will be deemed to be renewed by the Client unless the Client provides MailWire with notice of termination through the Client’s Account prior to the end of the Term for the specific Service being cancelled. The notice of termination will be considered valid once MailWire has adequately verified the authenticity of the request and will provide confirmation of acceptance of said notice of termination.
Services for the Initial Term or Renewal Term are to both paid in advance. The Term will be indicated on the Order and the Client agrees that by submitting the Order confirms acceptance of the Term
a. Payment for Initial Term. Services are to be paid in advance as indicated on the Order before the first day of Initial Term period indicated on the Order. When the Order is paid and any requirements for Services have been completed, MailWire will generate notification of Service Commencement Date.
b. Payment for Renewal Term. Unless otherwise advised by the Client, an invoice to the Client will be sent via electronic mail to the Primary Client or Billing Contact listed on the Account. The invoice will be generated in advance prior to the end of the Term.
c. Prorata Billing. The Client may request additional services through their Account. Where applicable billing periods will be prorated to match the renewal date of the first Service Commencement Date and will be paid in advance for each Initial Term and Renewal Term.
d. Altering Billing Cycle Length. Where applicable, The Client can switch between any advertised Term lengths as advertised on the Site by contacting MailWire through the Account to request a change to the term length. Any outstanding invoices may need to be paid before changes to billing terms can be completed.
f. Payment Methods. For a list of updated payment options, please visit our Site.
g. If the Account maintains a credit/debit card, PayPal Billing Agreement, or other forms of automatic billing (“Automatic Billing”) on file, the Client authorizes MailWire to bill subsequent fees to the credit/debit card on or after the first day of each Term of the Agreement; otherwise MailWire will invoice Client via electronic mail to the Primary Customer Contact or Billing Contact listed on the Account prior to the end of the Initial or Renewal Term. Payments may be accepted in the currency indicated on the Order. If the Client is paying by PayPal, the Client agrees to keep the PayPal Account and PayPal Funding Source current and funded, and your PayPal Account backed by a valid credit card.>
h. The Client is responsible for providing MailWire with changes to billing information (such as credit card expiration, change in billing address).
i. Account Credit Balance. The Client can at their discretion chose to add funds to their account to be used against future payments, whether they be an Initial Term or Renewal Term. Overpayments that are made automatically to MailWire that are not applied to an Initial Term or Renewal Term will be automatically be converted to a credit balance on the account. Credit balances are not refundable. If a credit balance is refunded a ten (10) percent fee will be applied on the balance refunded. If a credit balance is on file when there are no active Services for greater than twenty four (24) months, any credit balance will be removed from the Account.
j. Overdue Accounts. MailWire may suspend any and all Services without notice if payment for any Initial or Renewal Term is overdue by more than seven (7) days. MailWire may levy a fee up to ten (10) percent for any overdue payments not received within five (5) days of due date on invoice. Fees not disputed within thirty (30) days of due date are conclusively deemed accurate. MailWire may levy a charge to the Client of $20 for any returned payment or chargeback. The Client agrees to pay MailWire’s reasonable reinstatement fee following a suspension of service for non-payment, and to pay MailWire’s reasonable costs of collection of overdue amounts, including collection agency fees, attorney fees and court costs. MailWire may charge interest on overdue amounts at the lesser of 1.5% per month or the maximum non-usurious rate under applicable law.
k. Fee Increases. MailWire may increase its fees for services effective the first day of a Renewal Term by giving notice to the Client of the new fees at least forty five (45) days prior to the beginning of the Renewal Term, and if the Client does not give a notice of non-renewal as provided in Section 6 (n) above, the Client shall be deemed to have accepted the new fee for that Renewal Term and any subsequent Renewal Terms.
l. Taxes. At MailWire’s request and identified on the Order or Invoice, the Client shall remit to MailWire all sales, GST, PST, VAT or similar tax imposed on the provision of the Services (but not in the nature of an income tax on MailWire), regardless of whether MailWire fails to collect the tax at the time the related services are provided.
Where a trial period was not selected, MailWire provides a thirty (30) day money back guarantee to all new Clients for Services as advertised on the Site. Services that do not mention a money back guarantee either on the Site or in the Order will not be eligible for a refund under this guarantee.
A Client may initiate a request for a refund under this guarantee by sending a ticket to billing through the Account during the first thirty (30) days of the Clients initial Service with MailWire.
This guarantee is only available to new Clients which are defined as any person or organization that has not purchased Services from MailWire before, through any Account, whether the Account is active, inactive, or closed. If there is a dispute to the interpretation of a new Client, MailWire, in its reasonable commercial judgment, shall govern.
This guarantee covers hosting related Services, and does not cover any fees charged for setup, domain registration, SSLs, or additional fees charged for services during the first thirty (30) days MailWire will not provide refunds under the money back guarantee is there has been a violation to this Agreement, the AUP or any other agreement relating to the Services provided.
Any requests for refunds outside of this and/or prorated refunds will not be provided.
b. Suspension of Service. Customer agrees that MailWire may suspend services to Customer without notice and without liability if:
i. MailWire reasonably believes that the Services are being used in violation of this Agreement, including the AUP
ii. Customer fails to cooperate with any reasonable investigation of any suspected violation of this Agreement, including the AUP
iii. MailWire reasonably believes that the suspension of service is necessary to protect its network or its other customers, or
iv. As requested by a law enforcement or regulatory agency.
v. For any Overdue Payment as outlined in Section 5 – Term subsection k. Overdue Accounts
vi. If any payment for Services is returned, charged back, or disputed to MailWire.
vii. If the Client does not provide correct and accurate information on themselves, or their identity, or as established is Section 4 – Account Setup and Maintenance of Information.
The Customer shall pay MailWire’s reasonable reinstatement fee if service is reinstituted following a suspension of service under this subsection.
i. Early Termination/Cancellation. As outlined in Section 5 – Term subsection a, the Client can provide MailWire with notice of termination through the Client’s Account at any time prior to the end of the Initial Term or Renewal Term. The Client acknowledges that any fees paid for an Initial Term or Renewal Term are paid in advance and that MailWire will not prorate any fees for unused time remaining until the natural expiration of the Initial or Renewal Term.
ii. Termination due to Agreement/AUP violation. If MailWire is to terminate your account in failure to comply with the Agreements with MailWire, including any AUP violations, the account may be terminated immediately and without warning. Data may not be retained and payment may not be refunded.
Either party may terminate this agreement upon ten (10) days advance notice if the other party admits insolvency, makes an assignment for the benefit of its creditors, files for bankruptcy or similar protection, is unable to pay debts as they become due, has a trustee or receiver appointed over all or a substantial portion of its assets, or enters into an agreement for the extension or readjustment of all or substantially all of its obligations.
a. Storage. As indicated on the Order, the Services have a fixed storage limit. The Client may not store any content that, when received, exceeds the storage limit, or may delete other content already stored to create storage capacity for the content. This content would therefore be permanently lost to the Client. In the alternative, MailWire may, but is not required to, store the additional content and charge the Client for storage overage fees. It is the Client’s obligation to monitor the remaining storage capacity of the Services.
b. Records Retention. MailWire’s obligation to store e-mail messages or any other content terminates at the effective date of expiration or termination of the Services. At the Client’s written request made at or prior to the termination of the Service, MailWire will provide, where possible, a copy of the Client’s data on a fee basis no later than seven (7) days following the date of the request. MailWire will not be responsible for records that are not available or not complete.
The Client whom enters in to this Agreement is responsible for all data on their Account. Any such violation of this Agreement by any 3rd party will be the responsibility of the Client.
The Client may not use MailWire’s name, services, trademarks, logos, terms or other identifying marks, materials, or trade dress on the Client’s Site or any other way that may infringe on the distinctiveness of MailWire’s brand or potentially cause harm to the commercial image or reputation of MailWire. If the Client is a reseller, the Client may also not use the aforementioned except with MailWire’s prior written consent; provided, however, that the Client may not remove any copyright notice that MailWire has placed on any software or other materials provided to The Client. Each party acknowledges and agrees that the other party retains exclusive ownership and rights in its trademarks, service marks, trade secrets, inventions, copyrights, and other intellectual property. Neither party may use the other party’s name or trade mark without the other party’s prior written consent
The Client agrees to indemnify and hold harmless MailWire, MailWire’s affiliates, MailWire’s Service Providers, and each of their respective officers, directors, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including reasonable attorney fees) brought by a third party under any theory of legal liability arising out of or related to the actual or alleged use of the Client’s services in violation of applicable law or the AUP by Client or any person using Client’s log on information, regardless of whether such person has been authorized to use the services by Client.
MailWire does not warrant or represent that the Services will be uninterrupted, error free, or completely secure. To the extent permitted by applicable law, MailWire disclaims any and all warranties including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. To the extent permitted by applicable law, all Services are provided on an ‘As Is’ basis.
a. Limitation on Indirect Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.
b. Limitation on Amount of Liability. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY to MAILWIRE UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAID THE CLIENT TO MAILWIRE FOR TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
c. Exceptions to Limitations. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.
Customer agrees that MailWire may, without notice to Customer:
a. Report to the appropriate authorities any conduct by the Customer or any of Customer’s customers or end users that MailWire believes violates applicable law, and
b. Provide any information that it has about the Customer or any of its customers or end users in response to a formal or informal request from a law enforcement or regulatory agency in response to a formal request in a civil action that on its face meets the requirements for such a request.
The Customer acknowledges that they are to conduct themselves in a manner that is respectful and free of abusive language, threats, harassment and discrimination. MailWire will exercise its discretion and determine actions and steps to ensure discontinuance of such actions or behaviours from warnings up to and including discontinuing of Services and Account.
The Customer agrees to maintain a current copy of all content hosted by MailWire notwithstanding any formal and subsequent agreement entered in to by MailWire and the Client to provide backup services.
Upgrades and other changes in MailWire’s network, including, but not limited to changes in its software, hardware, and Service Providers, may affect the display or operation of the Customer’s hosted content and/or applications. MailWire reserves the right to change its network in its commercially reasonable discretion, and MailWire shall not be liable for any resulting harm to Customer.
Notices to MailWire under the Agreement shall be given via email to info@MailWire.com. Notices to the Customer shall be given via email to the individual listed as the Primary Customer Contact on the Order. Notices are deemed received on the day transmitted, or if that day is not a business day, on the first business day following the day delivered. Customer may change his, her or its notice address by a notice given in accordance with this Section.
MailWire shall not be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond MailWire’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement shall be governed by the laws of the Province of British Columbia, exclusive of its choice of law principles, and the laws of the Canada, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. THE EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL BE THE PROVINCIAL AND FEDERAL COURTS IN BRITISH COLUMBIA, CANADA, AND EACH PARTY AGREES NOT TO DISPUTE SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO.
a. The parties intend for their relationship to be that of independent contractors and not a partnership, joint venture, or employer/employee. Neither party will represent itself to be agent of the other. Each party acknowledges that it has no power or authority to bind the other on any agreement and that it will not represent to any person that it has such power or authority.
b. The Customer acknowledges that MailWire’s does not represent nor have the power of authority to bind the Agreement on its Services Providers and that this Agreement is between the Customer and MailWire.
c. This Agreement may be amended only by a formal written agreement signed by both parties.
d. The terms on the Customer’s purchase order or other business forms are not binding on MailWire unless they are expressly incorporated into a formal written agreement signed by both parties.
e. A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement.
f. A party’s waiver of any of its right under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous or future occurrence, whether similar in nature or not.
g. The captions in the Agreement are not part of the Agreement, but are for the convenience of the parties.
h. The following provisions will survive expiration or termination of the Agreement: Fees, indemnity obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.
i. There are no third party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third party beneficiaries to the Agreement.
j. The Customer may not transfer the Agreement without MailWire’s prior written consent. MailWire’s approval for assignment is contingent on the assignee meeting MailWire’s creiteria. MailWire may assign the Agreement in whole or in part.
This Agreement together with the Order and AUP constitutes the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior understanding or communication, written or oral.