This Agreement is by and between: Tucows.com Co. ("Tucows") and the CUSTOMER signing below ("Customer").
WHEREAS Tucows provides email services as more particularly defined below; and, WHEREAS Customer wishes to provide such email services to its customers; NOW, THEREFORE, in consideration of these mutual promises, Tucows and Customer, intending to be legally bound, hereby agree as follows:
(a) "API" means the set of technical specifications making up the Application Program Interface;
(b) “Agreement” means this document, and all its schedules and other documents incorporated by reference.
(c) Anti-Virus and Anti-Spam Filtering means the use of certain detection rules and techniques, to be selected and implemented by Tucows, to determine if a message, or any inbound attachment, is “junk” or “spam” email or contains a virus.
(d) “Bulk email” means unsolicited email sent en masse, is deemed to include a group of approximately five hundred (500) or more emails with substantially similar content; however, Tucows retains the right, acting in good faith, to determine whether any particular transmission is a Bulk email.
(e) “Content” means any information, data, text, software, music, sound, photographs, video, messages or other materials transmitted using the Email Service;
(f) “Effective Date” shall mean the later of the two dates on the signature page below;
(g) “Email Service” means the email service offered by Tucows that will allow Customer to sell to its Users an email service that incorporates provisioning services, email administration capabilities, the email application itself; all more particularly described in Section 2 below and any additional service agreed to by the parties from time to time (which may include, if so agreed, and upon the terms to be agreed);
(h) “Fee(s)” mean the monies payable for the Email Service selected by Customer in accordance with Section 4 herein;
(i) “Junk email” means unsolicited commercial email, a.k.a. spam email or unsolicited bulk email;
(j) “Mailbox” means the electronic storage area addressed by a unique email identifier having the form <[email protected]>.
(k) “Mail Forwarding” means the direction of email intended for a Mailbox created by Tucows to another email account specified by the Customer.
(l) “Prohibited Use” means those actions outlined in Section 3.2 below.
(m) “Term” has the meaning outlined in Section 5 of this Agreement;
(n) “User” means an individual or entity employing an email address that contracts with Customer to receive any one or more components of the Email Service and who, in either case, acquires the Email Service for its own internal use, rather than for resale or redistribution;
(o) “Virus” means a piece of program code, including a self replicating element, usually disguised as something else that causes an unexpected and undesirable event and which is designed so that it may infect other computer systems.
2. SERVICES PROVIDED
2.1 Tucows Email Service is available as the following offering:
(a) The Email Service includes (i) mailbox accounts, accessible by either or both the IMAP and POP mail protocols, through desktop mail clients or web-based applicationsl (ii) optional email forwarding accounts; and/or (iii) optional Filtering-Only mailboxes (as described below). The Email Service enables a mailbox (i.e., email address) to send and receive email. The Email Service enables a User to use features of the mailbox to personalize settings (e.g., auto-responder, mail folders, address book folders, mailbox aliases, domain catch-all, etc.) through a web-based interface. The Email Service includes email forwarding accounts that allow mail to be forwarded from this email address to another email address.
(b) Each mailbox includes five (5) gigabytes of base storage per mailbox, with additional storage available as a feature upgrade.
(c) Mailboxes include Anti-Virus and Anti-Spam filtering, for both inbound and outbound messages sent through the Tucows Email Service. Messages quarantined by the Anti-Virus and Anti-Spam filters will be stored by Tucows for a period of seven (7) days, after which the
(d) messages will be deleted. Virus filtering may not be able to scan certain email attachments, which are under the direct control of the sender (such as password protected and/or encrypted attachments).
(e) Filtering-Only mailboxes provide Anti-Virus and Anti-Spam filtering for remote mailservers hosted by Customer. These mailboxes provide storage only for messages quarantined by the Anti-Virus and Anti-Spam filters. Messages quarantined by the Anti-Virus and Anti-Spam filters will be stored by Tucows for a period of seven (7) days, after which the messages will be deleted. Filtering-Only mailboxes provide inbound filtering only.
(f) Filtering-Only mailboxes are available to Customers and Users who have email servers and systems connected directly and permanently to the Internet and which have a fixed Internet Protocol (“IP”) address. Tucows reserves the right to modify the quarantine period for specific domains, or for the entire Email Service with or without prior notice, to avoid space capacity or system performance issues which jeopardize the technical or economic viability of the services offered, or the system used to implement the services, so long as notice is provided within a reasonable time after the modification.
(g) Email Forwarding Accounts include spam & virus filtering, but do not include a spam quarantine. All mail detected as spam/virus will be rejected.
(h) The Email Service includes an administration tool that provides certain account configuration tools for the use of the Customer and/or users and mail administrators. Administration through web-based interface (MAC) enables an administrator to manage user accounts and their settings. Administration through a programmatic API (APP) enables a command line interface that is accessible over the network and an external program to manage user accounts and their settings.
(i) Tucows may from time to time provide enhancements to the Email Service, or its’ associated administration tools, at no additional charge to Customer. These changes will be described on https://opensrs.com as available.
(j) Nothing in this agreement shall restrict the Customer’s ability to set retail prices.
2.2 Tucows may provide to Customer, a set of technical specifications making up the Application Program Interface (the “API”), which will enable Customer to develop its system to facilitate the resale of the Email Service to its Customers. Subject to the terms of this Agreement, if Tucows provides Customer with the API, Tucows grants Customer a non-exclusive, non-transferable worldwide limited license to use the API solely to enable Customer to offer the Email Service to Customer’s Users. Tucows may from time to time make modifications to the API licensed hereunder that will enhance functionality or otherwise improve its functionality. All rights not specifically granted to Customer are reserved by Tucows, including all intellectual property and moral rights.
2.3 Tucows will not give, sell, lease, license or rent the User lists to any third party (unless required by law), to allow such third party to directly market other services or products to Users, without the Customer’s consent, not to be unreasonably withheld or delayed.
3. CUSTOMER OBLIGATIONS
3.1 Customer shall be responsible for providing all customer service, billing, technical support and customer interface to accept orders from Users. As part of its registration of all Users during the Term, Customer shall submit all data elements as specified in the interface to the Email Service using the appropriate Tucows protocols.
3.2 Customer shall comply with, and shall ensure that its Users agree to comply with, all generally applicable policies of Tucows that may be established from time to time to assure sound, safe and legal operation regarding the use of the Email Service (hereafter, “Tucows Acceptable Use Policy for Email”). Without limitation, Customer agrees, and shall ensure that each and every User agrees, not to: (i) send any Content that is unlawful, harmful, threatening, abusive, vulgar, invasive of another’s privacy or otherwise objectionable, (ii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content, (iii) transmit any Content that User does not have a right to make available, (iv) transmit through the Email Service any Junk email, Viruses or Bulk email; (ii) allow its systems to serve as an Open Relay; (iii) interfere with or disrupt the Email Service or any networks connected to the Email Service; (iv) transmit obscene or pornographic material; (v) take any action that imposes an unreasonable or disproportionately large load on Tucows’ infrastructure providing the Email Service; (vi) impersonate any person or entity or falsely state or otherwise misrepresent an affiliation with a person or entity; (vii) use the Email Service for any purpose that is in violation of any applicable law or is otherwise an infringement on the rights of any person or entity; (viii) modify, decompile, reverse engineer, disassemble or reproduce any of Tucows’ licensed or owned software, systems, applications or components used in providing the Email Service; or (ix) use deceptive, misleading or unethical practices that are or might be detrimental to Tucows or Users or the general public. A copy of the Tucows Acceptable Use Policy for Email, as it may be modified and incorporated into this Agreement from time to time, shall be available on the Tucows website at: https://opensrs.com/wp-content/uploads/emailaup.html
3.3 Customer acknowledges and agrees that each User must agree to be bound by the terms and conditions of an EULA no less protective of Tucows than the form Tucows shall post on its website from time to time at http://www.opensrs.com/wp-content/uploads/tucowsemailservice_eula.doc.
3.4 Customer agrees it will not give, sell, lease, license or rent the User lists to any third party (unless required by law), to allow such third party to directly market other services or products to Users, without the User’s prior specific consent.
3.5 Customer acknowledges that Tucows may supply any or all of the Software, API, Email Services on its own behalf, or as a sublicensor or customer on behalf of a third party supplier, and may substitute such third party suppliers without notice. Customer acknowledges termination by Tucows of the Email Services, or any component thereof, may result in a termination under 5.1, but not under 5.2.
3.6 Customer agrees to permit, and agrees the EULA shall permit, Tucows to modify any domain and User settings with no notice, including without limitation, altering filtering settings, to avoid space capacity and system performance issues that jeopardize the technical or economic viability of the services offered, or the system used to implement the services, so long as notice is provided within a reasonable time after the modification.
3.7 Customer will, at its sole cost and expense, obtain any and all permits and licenses necessary in connection with its performance of this Agreement, and will comply with all applicable laws and regulations.
3.8 Customer will have the right to advertise, promote and distribute the Tucows Email Service under the Tucows Trademarks (as defined below). Tucows hereby grants to Customer a license to use the Tucows Trademarks solely in connection with its advertising, promotion and distribution of the Tucows Email Services which it is entitled to offer under this Agreement. Customer’s use of the Tucows Trademarks must comply with any guidelines issued by Tucows with respect thereto.
3.9 “Tucows Trademarks" means all names, marks, logos, designs, trade dress and other brand designations used by Tucows in connection with its products and services that Customer has a right to offer pursuant to this Agreement. In performing its obligations hereunder, Customer may refer to the Tucows Email Service it is entitled to offer, (and associated Tucows products and services or features), by the associated Tucows Trademarks, provided that such reference is not misleading and complies with any guidelines issued by Tucows from time to time. Except as set forth in this Section 3.9, Customer is granted no right, title or license to, or interest in, any Tucows Trademarks. Customer acknowledges and agrees that any use of the Tucows Trademarks by Customer will enure to the sole benefit of Tucows. If Customer acquires any rights in any Tucows Trademarks by operation of law or otherwise, it will immediately, at no cost or expense to Tucows, assign such rights to Tucows along with all associated goodwill.
4.1 Customer shall pay to Tucows the non-refundable amounts set forth in the Fee Schedule attached and incorporated into this Agreement as Attachedment “A” (“Fee Schedule”). Fees are calculated, assessed and withdrawn from Customer’s account on a monthly basis per the Fee Schedule. Fees for the current month are calculated on the number of mailboxes in service on the first day of the current month. Mailboxes that are either activated or cancelled during the current month are ignored for billing purposes. Customers are responsible for keeping sufficient funds in their accounts with Tucows to cover monthly fees. Tucows shall provide Customer with access to reports on the number of mailboxes and users subscribing to a service and the amounts owing with respect to same.
4.2 If there are insufficient funds in Customer’s account at the time of withdrawal, Tucows may decline future orders. Tucows may send a request (e.g. a daily request) for payment to the Customer’s billing contact for a period (e.g. a five (5) day period). If Customer has not replenished its account to allow for the outstanding payment within said period, Tucows may suspend the Customer’s Users’ Email Service. If Customer’s account balance is fully depleted at any time, Customer shall not be permitted to purchase Email Services or any other Tucows service until Customer’s account balance has the necessary funds available.
4.3 Customer bears all risk and responsibility associated with billings to and collections from Users, and bad debt.
4.4 Payment may be submitted by Customer in the following manners:
(a) Via wire transfer to:
Final Bank: Bank of Montreal
In favour of: Tucows.com Co
For credit to a/c #: 00024605193
SWIFT CODE: BOFMCAM2
Receiving Correspondent bank:
Wachovia Bank N.A., New York ABA 026005092
Customer agrees that all wire transfer charges will be the responsibility of the remitter.
(b) Via cheque made payable to Tucows.com Co. and delivered to Tucows.com Co., 96 Mowat Avenue, Toronto, Ontario M6K 3M1, CANADA.
(c) Tucows reserves the right to change the fees and the process for handling insufficient funds upon notice to Customer.
5. TERM OF AGREEMENT
5.1 This Agreement shall commence on the Effective Date and continue until the earlier of the following: (i) termination by either party upon thirty (30) days written notice, (ii) termination for cause, as defined more fully in this Section 5; or (iii) Tucows’ election to terminate its Email Service offering, or any component thereof, in which case Tucows shall endeavour to provide Customer with reasonable notice of same and use commercially reasonable efforts to service all existing Users for a commercially reasonable transition period, but shall in no event be obliged beyond the User’s unexpired term for which Tucows has been paid.
5.2 If: a) either Party (or, in the case of Customer, an agent of Customer) materially breaches any term of this Agreement, and such breach is not cured within thirty calendar days after written notice thereof is given by the other Party, or b) Customer has not replenished its account to Tucows’ satisfaction, by the end of any calendar month in which Email Service was suspended, in whole or part, pursuant to 4.2; then the non-breaching Party may, by giving written notice thereof to the other Party, terminate this Agreement as of the date specified in such notice of termination.
5.3 In addition to the foregoing termination rights, if Tucows, in its reasonable discretion, determines that Customer has breached any provision of this Agreement, is in violation of any Email Service policy or regulation as amended from time to time, has failed to provide adequate support to Users, or is engaging in conduct that breaches or may put Tucows in breach of any law or regulation, Tucows may suspend Customer's or Customer’s Users’ access to the Email Service, pending the cure of such breach or violation, or change of such conduct, to the Tucows’ satisfaction acting reasonably. Tucows may require Customer to terminate any User in breach of its EULA or Tucows’ policies, regarding the Email Service, or both.
5.4 Upon termination, Customer’s access to the Email Service shall cease and Customer shall not be able to renew any User accounts. Customer acknowledges Tucows shall be entitled to directly communicate with Users to minimize disruption in service, including transition to an alternate Customer.
6. SUPPORT SERVICES
6.1 Tucows shall provide telephone, website and email support for the Email Service for Customer only. Customer shall bear sole responsibility for providing support to Users with respect to the Email Service.
7. MAINTENANCE AND SUSPENSION OF SERVICES
7.1 Customer shall employ all necessary employees, contractors, or agents with sufficient technical training and experience to respond to and fix all technical problems concerning the use of the Email Service, , and the API in conjunction with Customer's systems. Tucows may from time to time perform maintenance on or otherwise suspend and temporarily shut down the Email Service or both. Tucows will make commercially reasonable efforts to minimize any disruption of the Email Service.
7.2 Notwithstanding the foregoing, Tucows may, in its unilateral discretion, immediately suspend the Email Service if Tucows deems it necessary to terminate Prohibited Use, hacking attempts, service attacks or any other malicious activities either directed at or originating from Customer’s or any User’s domains or servers.
8.1 Although information transmitted to Tucows is stored in operating environments which Tucows believe are within industry standards for security, Customer agrees, and shall ensure that its Users are advised and agree, that no data transmission over the Internet can be guaranteed 100% secure. Tucows is not responsible for any interception or interruption of any communications through the Internet. Customer agrees that it and its Users are responsible for maintaining the security of access codes, and will ensure its Users are so advised and agree.
10. THIRD PARTY INFORMATION
10.1 Independent third parties may supply some or all of the software and information used in one or more components of the Email Service. While Tucows makes every effort to ensure the accuracy of all information, Tucows makes no warranty as to the accuracy of any such information.
11. REPRESENTATIONS AND WARRANTIES
11.1 Customer acknowledges and agrees that Tucows does not guarantee that the API, or Email Service will meet the requirements of Customer or its Users. The API, and Email Service are provided “as is” without any warranty of any kind.
11.2 Customer acknowledges that: a) as Viruses are frequently created and distributed, the anti-virus component of the Email Service is intended to detect only specific known Viruses and some unknown Virus behavior patterns. Tucows does not warrant that the Email Service will detect all Viruses present on a User’s computer system, network or email server; CUSTOMER IS ADVISED TO ENSURE IT, AND ITS USERS, HAVE SUFFICIENT CONTENT BACK-UP IN PLACE; and b) purveyors of Bulk Email and Junk Email, are constantly seeking to evade systems designed to block Bulk Email and Junk Email, and that a User may not wish all Bulk Email and Junk Email to be blocked, and that the Bulk Email and Junk Email component of the Email Service will not detect or block all Bulk Email or Junk Email, and may additionally block email which the User did not wish to have blocked. Tucows does not warrant that the Email Service will block all Bulk Email or Junk Email, or only block Bulk Email and Junk Email.
11.3 WITH REGARD TO THE API, EMAIL SERVICES AND SUPPORT THEREFORE, AND RIGHT TO PROVIDE SAME, TUCOWS (AND EACH OF ITS SUPPLIERS): A) EXPRESSLY DISCLAIMS ALL WARRANTIES AND/OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, TITLE, NON-INFRINGEMENT, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY OR SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS; b) DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE API OR EMAIL SERVICE WILL MEET THE CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF THE API OR EMAIL SERVICE, WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE API OR EMAIL SERVICE WILL BE CORRECTED; AND C) NEITHER WARRANTS NOR MAKES ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF API OR EMAIL SERVICE, OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, QUALITY, RELIABILITY, OR OTHERWISE. SHOULD ANY OR ALL OF THE API OR THE EMAIL SERVICE, PROVE DEFECTIVE IN WHOLE OR PART, THE CUSTOMER ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
11.4 TUCOWS AND ITS SUPPLIERS, SHALL NOT BE LIABLE FOR ANY MISREPRESENTATION, BREACH OF ANY IMPLIED OR EXPRESS WARRANTY OR CONDITION, OR BREACH OF ANY OTHER TERM (INCLUDING A FUNDAMENTAL BREACH OR BREACH OF A FUN-DAMENTAL TERM), OR BE OTHERWISE LIABLE IN CONTRACT, TORT, OR OTHERWISE FOR: (A) INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES; (B) LOSS OF REVENUE; (C) LOSS OF PROFITS; (D) LOSS OF BUSINESS OR GOODWILL; (E) LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, SOFTWARE OR HARDWARE; (F) LOST EMAIL OR (G) PUNITIVE DAMAGES; EVEN IF TUCOWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE SOLE REMEDY BELOW FAILS OF ITS ESSENTIAL PURPOSE.
11.5 CUSTOMER’S SOLE REMEDY IN THE CASE OF ANY LOSS OR DAMAGE RESULTING FROM ANY MISREP-RESENTATION, BREACH OF CONTRACT, NEGLIGENCE, ERROR OR DEFECT IN THE PRODUCTS OR SERVICES PROVIDED BY TUCOWS HEREUNDER SHALL BE TERMINATION OF THIS AGREEMENT, AND THE RETURN OF ANY UNUSED DEPOSIT.
12.1 Customer, at its own expense, will indemnify, defend and hold harmless Tucows and its employees, directors, officers, representatives, agents, affiliates and third party beneficiaries (including Tucows’ suppliers), against any claim, suit, action, or other proceeding brought against Tucows based on or arising from any claim or alleged claim (i) relating to any product or service of Customer, including, but not limited to, Customer's advertising, systems and other processes, fees charged, billing practices and customer service; or (ii) relating to any agreement with any User of Customer. Customer will not enter into any settlement or compromise of any such indemnifiable claim without Tucows' prior written consent, which consent shall not be unreasonably withheld. Customer will pay any and all costs, damages, and expenses, including, but not limited to, reasonable attorneys' fees and costs awarded against or otherwise incurred by Tucows in connection with or arising from any such indemnifiable claim, suit, action or proceeding.
12.2 If Tucows is threatened with suit by a third party, it may seek written reiteration of Customer’s indemnification obligations; any failure by Customer to provide said written assurance may result in suspension or termination of its account.
13.1 This Agreement:
(a) shall be governed and construed in accordance with the laws of Ontario and Canada, including their choice of law provisions, and the venue shall be in Toronto, Ontario;
(b) may be executed in two or more counterparts, each deemed an original, and all of which together shall constitute one and the same contract;
(c) may be modified by Tucows without the written consent of Customer, so long as the amendment or modification is generally applicable to all Customers;
(d) binds and benefits only the parties and their respective successors and permitted assigns. Customer shall not assign this Agreement without the prior written consent of Tucows, such consent not to be unreasonably withheld.
13.2 Each Party agrees:
(a) it has had the opportunity to obtain independent legal advice for the review and negotiation hereof, and so ambiguity will not be presumptively construed against Tucows;
(b) all restrictions in this Agreement are reasonable and valid, and waives all defences to strict enforcement thereof to the fullest extent permitted by law;
(c) a violation of any intellectual property usage, confidentiality, non-solicit or policy related provisions of this Agreement will result in immediate and irreparable damage to the other party which shall then, in addition to any other rights to relief, be entitled to temporary and permanent injunctions and such other relief as any court of competent jurisdiction may deem just and proper, without posting of any security or proof of actual damage;
(d) neither shall be liable for any delay or failure to perform hereunder if such delay or failure is due to any contingency beyond its reasonable control including acts of God, war, explosion, fire, flood or civil disturbance, or failure of a supplier to fulfill its obligations;
(e) section headings are for ease of reference only, and have no interpretive value;
(f) expiration or termination will not relieve either party from its obligations arising hereunder prior to such expiration or termination. Rights and obligations which by their nature would ordinarily be expected to survive expiration or termination will remain in effect, including but not limited to Sections 5, 8, 10, 11, 12;
(g) to execute such further documents reasonably requested by the other party to achieve the intent of this Agreement;
(h) the Agreement is the entire agreement between the parties, superseding all prior understandings, oral or written, relating to the subject matter of this Agreement.
(i) Nothing herein creates an agency, partnership, joint venture, employment, franchise, distributorship, dealership or other similar or special relationship between the parties, who hereby intend to establish the relationship of independent contractors.
(j) No provision hereof shall be deemed waived by any act, delay, omission or acquiescence on the part of either party or their respective employees or agents, nor shall any waiver by either party of a breach or default of a provision by the other, constitute a change in the terms hereof or waive any subsequent breach.
(k) All notices shall be in writing and either sent via facsimile, registered mail, courier, or by electronic mail. Notices shall be deemed received: upon actual receipt, if couriered; on the date indicated in the return receipt, if sent by registered mail; upon confirmation, as evidenced by a fax transmittal sheet; or upon confirmation, as evidenced by a delivery receipt, if sent electronically. All notices should be sent to the attention of the General Counsel, if to Tucows, with a copy to Email Services Product Manager and to the attention of the President, if to Customer, at the address set forth below.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement effective as of the later date set forth below.
Tucows.com Co: Customer:
(Please print) (Please print)
ATTACHMENT “A” TO EMAIL SERVICES AGREEMENT
Pursuant to the terms and conditions of their EMAIL SERVICES AGREEMENT, of which this Fee Schedule is a part, Customer agrees to pay to Tucows the following sums for services provided under the Agreement:
Base Mailbox Fee............................................ $0.50/month
Fifty (50) U.S. cents per month
(As defined in Section 2.1(b) each Mailbox includes five (5) gigabytes of base storage).
Each Additional Five (5) Gigabytes of Storage in a Single Mailbox............................................................ $0.50/month
Fifty (50) U.S. cents per month
Mail Forwarding Account Fee........................ $0.02/month
Two (2) U.S. cents per month
(As defined in Section 1(k))
Filtering-only Mailbox Fee.............................. $0.10/month
Ten (10) U.S. cents per month
Tucows.com Co: Customer: