This page
contains the Terms of Service for:
1.
Malibu.com
Customers to purchase and use Email Hosting Services;
By
initiating an order with Malibu.com you are promising:
In this
Terms of Service the following terms will be used and have the subsequent
definitions assigned to them:
Malibu.com
may modify this Agreement at any time. Customer can reference
http://www.malibu.com/base/tos.aspx for the most current version of
this Agreement. Malibu.com will provide the date for the most recent
modifications on the website. Material changes, as determined by Malibu.com,
will be noticed to Customer using any of the contact methods provided by
Customer. The Customer's continued exercise of the rights provided by this
Agreement, for five business days after notice of the modification is given (or
after 90 days after notice is given in the case of modifications in pricing)
will constitute an affirmative acknowledgement by the Customer that the Customer
has read, understands and agrees with such modification at which time the
modification shall be considered part of this Agreement.
This
Agreement shall become effective as to each Customer on the Effective Date. The
Period of performance of this Agreement will commence on the Effective Date and
will continue for the Initial Period. Thereafter, this Agreement will
automatically renew for successive Renewal Periods unless and until this
Agreement is terminated as herein provided.
On or
before the Effective Date Customer agrees to yearly term for this Agreement and
a payment plan which will determine the amount and timing of Customer's payment
obligations. The amount of such payments shall be determined according to the
pricing schedule in effect on the Effective Date. These fees will remain in
effect unless modified by Malibu.com in accordance with this Agreement.
Customer's first payment shall be due on or before the Effective Date and
remaining payments will be due and payable to Malibu.com in accordance with the
selected payment plan, and will be automatically debited from such Customer's
credit card prior to that date unless other payment arrangements are made with
Malibu.com. Unless terminated in accordance with the other provisions of this
Agreement prior to the expiration of the Initial Period or any Renewal Period
this Agreement shall be automatically renewed for the same term and on the same
payment plan as in effect for the immediately preceding term with the first
payment hereunder due on or before the first day of the Renewal Period. Any
payments not made when due will be subject to an interest charge of 2.5% per
month, unless such rate of interest is not permitted by applicable law in which
case, the interest charge will be the highest interest permitted by applicable
law. If any required payment is not paid in full by Customer when due,
Malibu.com may, in its sole discretion, disable Customer access to email until
payment is received or this Agreement is terminated. Malibu.com reserves the
right, in its sole discretion, to obtain a credit report on Customer at any time
and from time to time.
Malibu.com
may, without limiting or waiving any other right or remedy against Customer, set
off against and apply to any amounts, which are due, and owing to Malibu.com by
Customer all amounts due and owing by Malibu.com to Customer until all amounts
owing to Malibu.com have been paid.
In the
event that this Agreement is terminated or Customer elects not to renew Email
Hosting Services, Malibu.com will work to ensure a smooth transition for
Customer and Customer's data. Customer data is maintained on the Malibu.com
Network for 10 days. Customer must request an export of their data within 10
days of notifying Malibu.com of the termination or non-renewal. Malibu.com will
use commercially reasonable efforts to make the data available to Customer
within 14 days of the request. Payment for any obligation owed by Customer to
Malibu.com must be rendered prior to the transfer of Customer's data export to
Customer.
Either
Malibu.com or Customer, who is not in material breach of this Agreement, may
terminate this Agreement by giving the other party at least 30 days prior
written notice specifying the date of termination. A Customer who terminates
pursuant to the immediately preceding sentence shall be eligible for a refund of
any prepaid fees applicable to a period (measured in full months) after the
effective date of such termination.
Exceptions
to the thirty-day notice requirement include:
1.
Malibu.com
may terminate this Agreement with immediate effect if Customer violates
provisions of Customer's Responsibilities or violates (or causes a violation of)
Malibu.com's Acceptable Use Policy or breaches (or causes a breach of)
Customer's confidentiality obligations.
2.
Customer
shall be deemed to have automatically terminated this Agreement if Customer
fails to accept any proposed modification by Malibu.com.
3.
In the case
of Email Hosting Services, Customer may terminate this Agreement if Malibu.com
fails to comply with the Uptime Guarantee according to the provisions provided
therein.
In the
event Malibu.com terminates this Agreement on account of a material breach,
Customer shall not be entitled to a refund of any amounts previously paid.
Notwithstanding any termination or nonrenewal, this Agreement shall remain in
effect only to the extent that, and only for as long as, it is necessary to
provide the parties with the ability to enforce the rights and remedies that are
intended to survive termination or nonrenewal.
Either
party shall have the right to terminate this Agreement in the event either party
(a) terminates or suspends its business, (b) becomes subject to any bankruptcy
or insolvency proceeding under Federal or state statute, (c) becomes insolvent
or becomes subject to direct control by a trustee, receiver or similar
authority, or (d) has wound up or liquidated, voluntarily or otherwise.
Malibu.com
will adhere to the Malibu.com Email Privacy Policy set forth in
http://www.malibu.com/base/privacy.aspx and incorporated herein by reference
with respect to the collection and use of Customer's (or Reseller Account's)
personal information by Malibu.com.
Notwithstanding anything to the contrary stated herein, Malibu.com maintains all
rights, title, and interest in the Email Hosting Services, and all software
applications underlying such Email Hosting Services excluding any software
applications acquired through commercial vendors or the open-source community.
Customer may only use the Email Hosting Services for internal business purposes
and may not use such services in a resale capacity or allow or share access to
such services.
Malibu.com
reserves all rights to use the Email Hosting Services in whatever manner it
chooses, including provision of identical or similar services to other
Malibu.com customers. Nothing herein shall be deemed to restrict such rights.
Malibu.com
makes no promises or warranties that are not expressly provided in the other
terms of this Agreement. In addition, Malibu.com does not warrant (a) that the
functions contained in the Malibu.com Email Hosting Services provided will meet
Customer's requirements or (b) that the operation of the Malibu.com Email
Hosting Services or Email Marketing Services will be uninterrupted, accurate or
error free.
EXCLUSION.
THE WARRANTIES AND GUARANTEES EXPRESSLY PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE
AND IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES AND CONDITIONS, EXPRESSED,
IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT AND
NONINFRINGEMENT.
In the
event that any suit is brought based on a claim that the Email Hosting Services
delivered by Malibu.com infringe any copyright, trade secret, patent or other
property right of any third party, the exclusive remedy against and the only
obligation of Malibu.com shall be for Malibu.com, at its sole option, (i) to
defend Customer against, and if determined appropriate in sole and exclusive
judgment of Malibu.com, settle a claim of infringement, all at the expense of
Malibu.com, or (ii) to procure the right of Customer to continue to use the
Malibu.com Email Hosting Services or Email Marketing Services at issue, or (iii)
to replace or modify the infringing portion of the Malibu.com Email Hosting
Services or Email Marketing Services at issue so that it becomes noninfringing
or (iv) terminate Customer's use of the Malibu.com Email Hosting Services or
Email Marketing Services at issue and refund three months of fees paid by
Customer for using Malibu.com Email Hosting Services. Exclusions: Malibu.com
shall not be liable for infringement claims based on (i) the combination,
operation or use of Malibu.com Email Hosting Services or Email Marketing
Services with hardware, data, content or software not supplied by Malibu.com; or
(ii) modifications to the Malibu.com Software if the modifications were not made
by Malibu.com.
Customer
agrees to indemnify, defend and hold harmless Malibu.com and its directors,
officers, employees and agents, against any and all losses, damages,
liabilities, judgments, awards and costs (including legal and expert witness
fees and expenses) arising out of or related to any breach by Customer of this
Agreement or claims by third parties arising from Customer's (or in the case of
a Reseller, it's Reseller Account's) use of Malibu.com Email Hosting Services
provided by Malibu.com hereunder.
Notwithstanding anything to the contrary herein: (a) Malibu.com will not be
liable for any losses, claims, expenses or damages arising out of use, or
inability to use, the Email Hosting Services or Email Marketing Services; and
(b) Malibu.com will not be liable for unauthorized access to or alteration,
theft or destruction of Customer's (or in the case of a Reseller, its Reseller
Accounts') data files, programs, procedures or information through accident,
fraudulent means or devices, or any other method, unless such access,
alteration, theft or destruction is caused as a result of Malibu.com gross
negligence or intentional misconduct.
The entire
Malibu.com liability and Customer's exclusive remedies against Malibu.com
(whether in contract, tort, warranty, or otherwise) are set forth in this
Agreement. The Malibu.com total liability to Customer for damages (regardless of
the form of action, whether in contract, tort, warranty or otherwise) shall in
no event exceed the fees for the Email Hosting Services paid by Customer to
Malibu.com under this Agreement for the three month period immediately preceding
the event which caused the damage or injury. In respect to any claim against
Malibu.com in respect to any aspect of Email Hosting Services, the customer will
indemnify and hold harmless Malibu.com from the same and all costs and expenses
incurred by Malibu.com in connection therewith.
Malibu.com
shall not be liable for any special, incidental, indirect or consequential
damages or for loss of profit, revenue, or data, even if Malibu.com shall have
been advised of the possibility of such potential loss or damages.
No
assignment is allowed.
Except as
expressly provided herein, no waiver, amendment, or modification of any
provision of this Agreement shall be effective unless agreed to by both parties
in writing. No failure or delay by either party in exercising any rights, power,
or remedy under this Agreement shall operate as a waiver of any such right,
power, or remedy.
This
Agreement comprises the complete, final and entire Agreement between Malibu.com
and Customer and supersedes any and all prior agreements between the parties
regarding the subject matter contained herein. Should any term of this Agreement
be finally determined by a court of competent jurisdiction to be invalid,
unenforceable or otherwise contrary to law and equity, the parties agree that
such provision shall be construed, limited, modified or, if necessary, severed,
to the extent necessary to eliminate its invalidity or unenforceability, and
that the other provisions of this Agreement shall remain unaffected. Each party
agrees to pay all reasonable costs and expenses the other party incurs in
successfully enforcing this Agreement, including expert witness and reasonable
attorneys' fees.
Neither
party shall be liable for any delay or failure in performance due to Force
Majeure, which shall mean acts of God, earthquake, labor disputes, changes in
law, regulation or government policy, riots, war, fire, flood, insurrection,
acts of terrorism, sabotage, embargo, epidemics, acts or omissions of vendors or
suppliers, transportation difficulties, unavailability of interruption or delay
in telecommunications or third party services (including DNS propagation),
failure of third party software or hardware or inability to obtain raw
materials, supplies, or power used in or equipment needed for provision of a Web
site or other occurrences which are beyond either party's reasonable control. In
the event that Malibu.com is prevented or delayed in the delivery or
installation of Malibu.com Email Hosting Services for reasons beyond its
control, such delivery or installation shall take place as soon thereafter as is
reasonably possible.
All notices
to a party shall be in writing and shall be made either through email or U.S.
mail, postage prepaid. Notices to Malibu.com should be directed to Malibu.com at
the address below. Notices to the Customer will be sent to the Authorized
Administrative Contact as reflected in Customer's account set up.
Malibu.com.
228 Commercial Street
#424
Nevada City, CA 95959
Attn: Customer Relations
The parties
may change the address or designated recipient of notices hereunder by giving
the other party at least five days prior notice thereof. Notices by email shall
be deemed given when sent unless an undeliverable response is received. Notices
by U.S. mail shall be deemed given three days after being deposited in the mail
regardless of whether actually delivered or returned as undeliverable.
The
validity, construction, and performance of this Agreement shall be governed by
the laws of the State of California, excluding that body of law known as
conflicts of laws and the United Nations Convention on Contracts for the Sale of
Goods. Malibu.com and Customer agree to submit to the exclusive jurisdiction of
the Circuit Court located in Nevada County, California in any action or
proceeding arising out of or relating to, this Agreement; and the parties waive
all objections based on venue or forum non convenient with respect to such
courts and they agree not to commence any legal or equitable proceeding in any
other court. The parties further agree that any mediation arising out of or
relating to, this Agreement shall take place in Nevada County, California.
Each party
shall retain in confidence the terms of this Agreement and all proprietary and
confidential information transmitted to the other that the disclosing party has
identified in writing, or orally and then subsequently identified in writing, as
being proprietary and/or confidential, and will make no use of such information
except under the terms and during the Term of this Agreement. However, neither
party shall have an obligation to maintain the confidentiality of information
that (a) it has rightfully received from another party prior to its receipt from
the disclosing party; (b) the disclosing party has disclosed to a third party
without any obligation to maintain such information in confidence, (c) enters
the public domain or becomes generally known to the public by some action other
than breach of this Agreement by the receiving party; or (d) is independently
developed by the receiving party. Each party shall safeguard proprietary and
confidential information disclosed by the other using the same degree of care it
uses to safeguard its own proprietary and confidential information but, in no
event, shall use less than a reasonable degree of care. Each party's obligation
under this paragraph shall extend for a period of three years following
termination or expiration of this Agreement. A party shall be entitled to all
legal and equitable remedies, including but not limited to injunctive relief,
whether temporary, preliminary or final, without proof of actual damages. In the
event of a termination of this Agreement, each party agrees to return to the
other within 60 days of a request, any property, data sheets, schematics,
samples, customer lists, confidential information, in whatever form or media
which are used by a disclosing party or which are furnished to a recipient.
Subject to
the terms of this Agreement Malibu.com will provide Email Hosting Services to
Customers.Malibu.com acknowledges that each Customer will select a specific
package of Email Hosting Services and Malibu.com will provide only those Email
Hosting Services that Customer has selected to receive. Extra storage,
customizable webmail sites, and other features may be available on an upgrade
basis. Malibu.com is not responsible for providing any Customer with access to
the Internet or paying for such services or for providing any equipment
necessary to make a connection to the Internet, including but not limited to
computers and network equipment.
If any
information provided by Customer is false or inaccurate, Malibu.com retains the
right to terminate the Customer's right to use the Email Hosting Services
without prior notice or opportunity to cure.
Customer
will adhere to the Malibu.com Acceptable Use Policy set forth at
http://www.malibu.com/base/aup.aspx and incorporated herein by
reference with respect to the use of the Email Hosting Services.
Guarantee
by Malibu.com that the Email Hosting Services will be available 99% of the time
during any calendar month, subject to and in accordance with the further
provisions of this Agreement.
Malibu.com
provides to Customers the Uptime Guarantee, also known as a Service Level
Agreement ("SLA"), during any period in which a Customer may use the Email
Hosting Services. The Uptime Guarantee includes only the functioning of all
network infrastructures within the Malibu.com Network and does not include
Scheduled Downtime. The Uptime Guarantee does not apply when Customer is unable
to send and receive email as a result of a failure external to the Malibu.com
Network or failures, irregularities or inconsistencies in Customer's connection
to the Internet or in any systems or software outside of the Malibu.com Network.
If
Malibu.com fails to meet the Uptime Guarantee during any calendar month, the
Customer may request a refund in the amount equal to the percentage of Users
that were adversely affected times ten percent (10%) of customer's monthly fee
for each 30 (thirty) minutes of continuous downtime they experience less 99% of
total time.. The refund will not exceed one hundred percent (100%) of Customer's
monthly fee.
Refunds
will be issued in the form of a credit towards Customer's next invoice, unless
the affected month is Customer's last month of service, in which case the refund
will be issued via check or credit card within 60 (sixty) calendar days from the
end of the last service month.
If
Malibu.com fails to comply with the Uptime Guarantee according to the provisions
provided herein, Malibu.com will waive the 30 (thirty) day notification period
for Termination, as outlined below.
Malibu.com
provides filtering of Junk Email as a part of the Email Hosting Services. Some
of this filtering may be turned off at Customer's option. Email messages that
are identified to be viruses will be rejected or deleted. Email messages that
are identified to be spam, phishing or other disruptive content will be
rejected, deleted or tagged and delivered. Malibu.com makes reasonable efforts
to configure its automated software to accurately identify all forms of Junk
Email. However, Customer acknowledges and agrees that it is not possible to
assure that Malibu.com will at all times accurately identify such content and
that Malibu.com is not obligated to do so. Malibu.com does not guarantee that it
will at all times accurately identify and block all (or any) of the Junk Email
that Customer (or any Reseller Account) receives through the use of the Email
Hosting Services. Malibu.com also does not guarantee that the emails that are
identified or blocked by the filtering software truly contain Junk Email
content. Customer acknowledges and agrees that Malibu.com shall have no
liability to Customer or a third party (including in the case of a Reseller any
Reseller Account) with respect to its Junk Email filter, any failure to receive
any email as a result thereof, any receipt of Junk Email or the transmission of
any viruses to Customer's or any other computer system or email program.
Customer agrees to run a desktop virus scanner and firewall on computers that
are connected to the Internet as an additional line of defense and to reduce the
risk of systems being infected by viruses. Customer agrees to and understands
the risks associated with using the Email Hosting Services and receiving and
transmitting email messages via the Internet. Reseller shall insure that its
Reseller Accounts understand and agrees to the limitations set forth in this
Section as if they were a Customer of Malibu.com and shall hold Malibu.com
harmless from any claim asserted by a Reseller Customer which could not be
asserted by a Customer hereunder. Customer also acknowledges that email sent
through Malibu.com may not reach the intended recipient. The same techniques
that Malibu.com applies to protect you from Junk Email are used by
third-parties. Malibu.com cannot guarantee successful delivery of all email
messages, and makes no representation or warranty that such delivery will take
place.
The Email
Hosting Services have the fixed storage limit per mailbox, which Customer
subscribes and pays for, and which can be upgraded for a fee. There is also a
size limit per email message, which cannot be upgraded. Email messages when
received may not be stored if the size of such email would put the destination
mailbox over its storage limit or if the size of the message exceeds the per
email message size limit. Malibu.com has no responsibility to and will not
monitor the size of a mailbox in order to prevent it from reaching its storage
limit. Customer understands and agrees that Malibu.com assumes no responsibility
for the deletion of or failure to store email messages in excess of the agreed
fixed storage limit.
Customer's
email messages are backed up to Data Backups. The Data Backups consist of a
snapshot of the contents within each mailbox at a specific moment in time. The
Data Backups may not store every email that is transferred or received using the
Email Hosting Service, but rather it stores a copy of the email messages that
exist within each mailbox during the time the Data Backups are processed each
day. Copies of email messages may remain in the Data Backups for approximately
two (2) weeks even after the email messages are deleted from the mailbox.
Authorized Malibu.com employees may access email messages in the Data Backups
only to perform data restores and to verify that the Data Backups operations are
occurring correctly.
In the
event that email messages are deleted from a mailbox as a result of something
other than a failure of the Malibu.com Network, and wishes for those email
messages to be restored, a data restore may be requested from any of the still
available recent Data Backups snapshots.
Customer
will designate qualified personnel to act as liaisons between Customer and
Malibu.com, and provide electronically or in writing to Malibu.com the name(s)
of such currently designated personnel at all times.
Customer is
solely responsible for Content , including any subsequent changes or updates.
Customer represents and warrants that Content: (a) will not infringe or violate
the rights of any third party including, but not limited to, intellectual
property, privacy or publicity rights of others; (b) is not abusive, profane or
offensive to a reasonable person; or (c) will not be hateful or threatening.
Violations of the foregoing may result in early termination of Email Hosting
Services by Malibu.com in the sole discretion of Malibu.com. Content shall mean
and refer to the content of all emails through the Email Hosting Services.
Customer is
solely responsible for the Content of its transmissions. Customer agrees that
the transmission of technical data, which is exported from the United States
through the Malibu.com Network, will comply with U.S. law regarding the same.
Customer further agrees that the Malibu.com Email Hosting Services provided to
Customer hereunder will not be used (a) for illegal purposes or (b) to interfere
with or disrupt other network users, network services or network equipment.
Interference or disruptions include, but are not limited to, distribution of
unsolicited advertising or chain letters, propagation of computer worms and
viruses, and use of the network to make unauthorized entry to any other machine
accessible via the network. Violations of the foregoing may result in early
termination of Email Hosting Services by Malibu.com in the sole discretion of
Malibu.com.
Upon
expiration or termination of this Agreement, Customer must discontinue use of
the Email Hosting Services and relinquish use of the IP address or address
blocks assigned to it by Malibu.com in connection with the Malibu.com Email
Hosting Services, including pointing the DNS for Customer's domain name(s) away
from Malibu.com services.
Customer is
solely responsible for the administration of all end user login names and
passwords for the purpose of authenticating and authorizing access to the
Malibu.com Email Hosting Services. Malibu.com provides a Control Panel that
allows Customers to administer most aspects of the Email Hosting Services,
including but not limited to the end user login names and passwords. Customer
are responsible to Malibu.com for maintaining the confidentiality of their
Control Panel password and account and responsible for all activities (whether
by Customer or by others) that occur under the Customer's password or account.
Customer agrees to notify Malibu.com immediately of any unauthorized use of a
password or account or any other breach of security. Malibu.com cannot and will
not be liable for any loss or damage arising from the failure by a Customer to
protect its password or account information.
Customer is
solely responsible for handling all communication, technical support to and
business relations with end users who Customer has authorized to use the Email
Hosting Services, including but not limited to responding to inquiries and
questions from end users.
Malibu.com
generally performs all system maintenance activities during a scheduled
maintenance window. These windows are necessary to upgrade the system components
that allow Malibu.com to meet service level commitments. The maintenance windows
are currently scheduled for Saturdays and Sundays from 12:00 a.m. to 4:00 a.m.
EST, though not every maintenance window is utilized. The maintenance schedule
can also change.
Malibu.com
attempts to perform all maintenance without the need for service downtime.
However, occasionally downtime is required. Malibu.com will schedule at most one
maintenance window per quarter (3 consecutive calendar months) where downtime
may accrue for core Email Hosting Services, which include SMTP, POP3, IMAP and
webmail. Downtime for other services such as Control panel and API may occur
during any maintenance window. If downtime is planned for any service during
maintenance, Malibu.com will make an announcement prior to the date of activity.