Hosted: Terms Of Service (TOS)
This is an Agreement (“ToS,” and “Terms of Service”) between two Parties (“Us” and “Our” and “We”): Advanced State Of Networking, Inc. (“ASON”, “us”, “our” and “we”) and the customer (“Customer(s)”, “Client(s)” “you” and “your”), a business entity that orders or uses our Service.
An independent technology services contractor, we are in the general business of licensing, developing, integrating, operating and marketing certain software as a service, delivered across the internet with related technical support as a packaged Service. More specifically, our Service is intended to deliver tools over the internet for collaboration, including and not limited to email, calendaring, contact, file and task sharing.
You would like to use our Service and we desire to make Service available to you. By ordering or using the Service, you accept the Service in accordance with the entirety of the terms and conditions herein, effective as of your Service Commencement Date.
- Entire Agreement. This document (“Introduction”) and its Addendum(s) contain the entire understanding between Us. The term “Agreement” refers collectively to this Introduction, its Addenda as described below, and any subsequent agreements and transactions (“Amendments”) between Us. Amendments, if any, will serve to supplement the terms and conditions herein to the extent specified above. Pre-printed or standard terms contained in any agreement or other document issued or prepared by you or us, shall be void and of no force and effect. Verbal commitments made by either you or us shall be non-binding.
Addendum 1: Definitions
Addendum 2: General
Addendum 3: Billing
Addendum 4: Cloud
Addendum 5: Support
- Agreement Mechanics. Should any terms or conditions within the Introduction and Addenda potentially conflict, conflict or be inconsistent with each other, the Introduction and Addenda shall govern in the order they are presented herein, for instance, the Introduction governs over all Addenda, and Addendum 1: Definitions, governs over all other Addenda. Should any terms or conditions within this Agreement, or any Amendment, potentially conflict, conflict or be inconsistent with one another, the Amendment shall control over any language in this Agreement. If there are multiple Amendments, the Amendments shall govern in chronological order, for example, with the most recent Amendment governing over all others.
You hereby acknowledge that you have reviewed the terms and conditions in this Agreement and each of the Amendments referred to herein, and We have caused Our duly authorized representatives, who are at least 18 years of age, to execute the Agreement on and as of the Service Commencement Date. This Agreement may be executed (by original signature, faxed signature, or by electronic submission by typing your typing or affirmatively marking an acceptance icon associated with a hyperlink to this Agreement) in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute but one and the same instrument.
USE OF ASON SERVICES CONSTITUTES ACCEPTANCE OF THESE TERMS IN THEIR ENTIRETY.
Addendum 1: Definitions
The following Definitions apply to the Agreement:
Abuse means unacceptable use, such as and not limited to sending spam, viruses and other unsolicited communications. It also means an email address you should monitor for complaints, see operational parameters in the Cloud Addendum: Abuse, and Fair Use.
ActiveSync allows supporting mobile devices to be synchronized with our Service, including mail, calendars, contacts and tasks, in near real-time. Known as “push” software because it pushes updates when they happen, as opposed to polling for changes. Supporting mobile devices include iPhone, Samsung, Goggle and Windows Mobile. ActiveSync was developed by Microsoft, originally released in 1996.
Account means your Usage, all the Service data and preferences we store for each of your users. Sometimes referred to as a “mailbox,” “account” refers to more than email data, also includes, for instance and not limited to files, calendars, address books, tasks and preferences.
Administrator Console see Customer Center.
Authorized User(s) (Admin or Administrator) means a person or people on your team with permissions (privileges) to access Service self-management tools available from the Customer Center. Generally refers to team members other than your End Users.
Blackberry (BES) is an optional Service requiring configuring your users’ Blackberry devices to work with our turn-key, cloud-hosted Blackberry Enterprise Servers (“BES”). Reference our mobile devices FAQ.
Beta is used to describe a part of the Service offering undergoing pre-production evaluation and improvement, generally unsupported, or not fully supported. As opposed to GA. Reference policies described in the Cloud Addendum: Beta, and Billing Addendum: Credit.
Billing Cycle means the automated, monthly count of your Usage, invoicing and payment processing. Reference the Billing Addendum: Billing Cycle.
Billing Manager see Customer Center.
Blacklist means a list of internet addresses or names you have identified and from which you do not wish to receive further communication, or that have otherwise been identified as distributors of Abuse.
Business Hours (“Business Day”) means 8:00 A.M. – 5:00 P.M. EST Monday through Friday, excluding U.S. federal public holidays.
Chat see Customer Center.
Cloud means a system of computer software, servers, networking and storage devices located in one or more Data Centers for the purpose of delivering Service to many internet-connected customers simultaneously.
Customer Center means both the web address where you can find links to, and collectively the online resources we provide you to use and manage your Service, for example, notification of any upcoming Scheduled Maintenance. These resources may change and be eliminated from time to time at our sole discretion, without remedy, and currently include:
Admin Console (Administrator Console) requires log in, provides user authorization, add/delete/change accounts, quotas, passwords, distribution lists, account aliases and other features impacting Service and associated charges. Authorized Users will see a link to access the Admin Console in the top, right-hand corner of the Zimbra web client.
Service Requests (Issue Tracking System, Trouble Ticketing or Ticketing System) accessible after log in to the Help Desk. We use “tickets” to track your requests, their priority and our subsequent dialogue and work together over time. Reference policies described in the Support Addendum: Service Requests.
Data Center or NOC is a physical location at which we rent, lease or own space in buildings purpose-built for housing, powering, cooling, networking and securing computing devices, and connecting them to backbones of the Internet.
GA (“General Availability”) means the software stage of development after Beta, in which the software or feature is Supported.
Getting Started Guide see Customer Center.
Help Desk see Customer Center.
Issue (“Incident”) means any one Service question, problem or request that you document in ITS, or in the case of an Issue affecting multiple customers, we document at the Customer Center Support team situation updates or elsewhere.
IP (“Intellectual Property Rights”) means any patent rights, copyrights, trade secrets, know-how and any other similar rights or intangible assets recognized under any laws or international conventions and in any country or jurisdiction in the world, and all present and future registrations, applications, disclosures, renewals, extensions, continuations or reissues of the foregoing, and not including trademarks, service marks or domain names.
Knowledge Base see Customer Center.
Outage occurs when service testing fails due to unavailability of a service. Outages are reported in the System Status section of the Customer Center, with live situation Status Updates broadcast from our support team.
Outage Impact is the mailboxes directly impacted by an Outage, excluding those mailboxes indirectly impacted by, for example and not limited to, inability or reduced ability to communicate, share information or work with mailboxes directly impacted.
Quota means a limit. Most customers do not set account quotas. Please do not set account quotas without first reviewing and understanding our Quota Billing Policies & Procedures. Mailbox sizes may be limited in size by individual Quotas, restricting each mailbox’s Usage, and impacting Pricing. Authorized Users may set Quotas using the self-service tools of the Customer Center. A zero (0) quota means “unlimited,” in other words, that the account is not limited to any specific storage size, may grow without restriction.
RBL means Real-time Black(hole) Lists. We subscribe to various RBLs to identify sources of Spam, viruses, and other Abuse, and lists of Abuse sources, updated in real-time. For relevant operational parameters, please see Cloud Addendum: RBLs.
RFC means Request for Comments, a memorandum published by the Internet Engineering Task Force (IETF) describing methods, behaviors, research, or innovations about how the Internet works. Engineers and computer scientists publish discourse as RFCs, either for peer review or to introduce concepts and information. The IETF adopts some RFCs as Internet Standards. For relevant operational parameters, please see Cloud Addendum: Standards.
Resolution for an Issue is answering a question, solving a problem, fulfilling a request to your satisfaction, presenting a mutually acceptable work-around, identifying an existing bug report that accurately describes the Issue, being unable to duplicate the Issue ourselves, or waiting for your response for more than 3 days to our questions, troubleshooting or resolution options. Upon Resolution, we close your relevant ITS ticket.
Scheduled Maintenance is Cloud maintenance we perform with your advanced notification, to maintain or improve Service operation, security, features or maintainability. We use the Customer Center to notify you about upcoming Scheduled Maintenance. For operational parameters, please see Cloud Addendum: Scheduled Maintenance.
Service(s) means products and/or services ordered by you from us.
System Status see Customer Center.
System Up-time see Customer Center.
SPF means Send Policy Framework, an extension to the Simple Mail Transfer Protocol (SMTP) for sending email that works to reduce Spam and other Abuse. SPF allows the owner of an Internet domain to use special record in their domain name server (DNS) information to specify server computers authorized to transmit e-mail for that domain. For example, the owner of the mydomain.org domain can designate which machines are authorized to send e-mail whose sender e-mail address ends with “@mydomain.org”. Our kbase includes instructions on how to configure SPF to help minimize Spam.
Supplemental Service means any service we provide to you other than Service described herein, only under an Amendment. Examples of Supplemental Service include and are not limited to special projects, certain migrations, Professional Services, training and scripting.
Support means (i) Service management by a service delivery team that includes technical support specialists with relevant training and experience, (ii) responsiveness by service delivery team to provide technical assistance 24×7 to Emergencies, (iii) regularly scheduled hours seven days per week, year round; (iv) sales and billing representatives available to assist you during Business Hours, and (v) your access to the Customer Center.
Troubleshooting Tools see Customer Center.
Up-time for a given service is the time from beginning to end of a given calendar period, subtracting the aggregate Outage Lengths outside of Scheduled Maintenance during the given calendar period. Up-time is delivered as a percentage, where 100% means no recorded Outages for a calendar period. We report monthly publicly: see Customer Center.
Usage means each account has a size Reported by us in gigabytes (GB), measuring the total electronic data stored at any one time. The total size of an Account at a time of Reporting is known as account, or mailbox Usage, and may impact Service Pricing.
Addendum 2: General
- Customer Information. You agree you have completed all forms, documents and information, and the information provided is to the best of your knowledge correct, and that we may rely on your supplied information in performing Service, term and conditions of this Agreement. Any materially incorrect data provided to us may cause a delay in Service and Supplemental Services, resulting in additional charges and fees.
- Satisfaction Guarantee. The first 30 days of service is free-of-charge (“Free Trial Period”). You may cancel your services during these first 30 days without further obligation; after 30 days, the entirety of service fees once collected are non-refundable. The Service Level Agreement (SLA) sets forth your sole remedies for any claim relating to Service, including any failure to meet any guarantee set forth in the SLA.
- Cancellation. This Agreement may be canceled at any time with thirty five (35) days notice by either of us in writing, using the Customer Center resources. Also see Billing Addendum: Cancellation.
- Service Change. All products, services and Pricing provided by us are subject to our business policies, practices, and procedures, which we may change at any time and from time to time in our sole discretion without notice to you. We retain the right to change Pricing hereunder if required to by regulation, statute or rule of any governmental entity or applicable rule of law. We will make commercially reasonable efforts to provide thirty (30) days written notice in the event of a material change. If any changes materially, adversely affect your Pricing or Service, your right to terminate this Agreement is your only remedy.
- Service Value. You understand and agree by signing up for Service, you receive material value, equating to no less than the full Service’s entire purchase price, from setup of, access to, licensing, availability of and reservation of our Service, regardless of your actual use (“Usage”) of any Service.
- Not for Resale. Our Service may only be resold with our written approval under the terms of our Reseller Agreement.
- Non-hire: during the term of this agreement and for a period of 24 months following any of our Service to you, We agree that neither party shall directly or indirectly hire, solicit, or encourage to leave the other party’s employment, any employee, consultant or contractor of the other party, or hire any such employee, consultant or contractor who has left the other party’s employment or contractual engagement. The parties acknowledge that either party’s breach of this provision cannot be reasonably or adequately compensated by damages in any action at law, and said breach of this provision of this Agreement will cause the damaged party irreparable injury and damage. The parties expressly agree that the damaged party shall be entitled to injunctive and other equitable relief in the event of, or to prevent, the other party’s breach of this provision of this Agreement. Resort to such equitable relief, however, shall not be construed to be a waiver of any other rights or remedies that the damaged party may have for damages or otherwise. The various rights and remedies of the damaged party under this Agreement or otherwise shall be construed to be cumulative, and no one of them shall be exclusive of any other or of any right or remedy allowed by law.
- Privacy: We will treat any and all information we acquire in order to access your computer systems and network, including but not limited to passwords, IP addresses, and access codes, as Confidential Information. We shall not disclose any such Confidential Information to any third parties, except as may be necessary or potentially necessary to assist us in providing Service to you, in anti-fraud detection and payment processing, in response to a subpoena, in response to suspected Abuse or other unlawful use, or for the purpose of backups. Prior to giving third parties access to Confidential Information, we will have executed agreements with the Third Parties substantially mirroring this Privacy section. Within 30 days of your written request, any Confidential Information shall be returned to you or destroyed. We will not access your Accounts except to provide Service, for trouble-shooting purposes, in response to a request from law enforcement, in response to suspected Abuse or other unlawful use, or for purposes of backups. The obligations to maintain the confidentiality of the Confidential Information shall continue for one (1) year after the end of the Agreement.
- Confidential Information:
- Use. Each party agrees to use Confidential Information solely for the purpose of evaluating the commercial potential of and pursuing a business relationship with the other party and to use reasonable care to disclose Confidential Information only to employees, partners or consultants of the receiving party who need access to the Confidential Information in the ordinary course of their employment. “Confidential Information” means all technical and non-technical information concerning the disclosing party’s business not generally known to the public, which is disclosed to the receiving party either in written or oral form, including but not limited to the following information: patents, copyrights, trademarks, brand name, experimental work, purchasing, manufacturing, future and proposed products and services, procurement requirements, business forecasts, trade secrets, know-how, inventions, techniques, processes, algorithms, software, schematics, software source documents, contracts, customer lists, financial information, and sales and marketing plans.
- Ownership. All Confidential Information and any products of the Confidential Information, regardless of which party creates the such products, shall remain the property of the disclosing party, and no license or other rights to such disclosing party’s Confidential Information or products thereof is granted or implied hereby. At the disclosing party’s request and no later than five (5) business days after such request, the receiving party shall promptly destroy or deliver to the disclosing party, at the disclosing party’s option: (a) all materials furnished to the receiving party by the disclosing party; (b) all tangible media of expression in such receiving party’s possession or control that contains Confidential Information; and (c) written certification of such receiving party’s compliance with the obligations contained in this Agreement.
- Independent Development. Each party understands that the receiving party may currently or in the future be developing information internally, or receiving information from third parties that may be similar to the disclosing party’s Confidential Information. Accordingly, nothing in this Agreement shall be construed as a representation or inference that such receiving party will not develop products or services, or have products or services developed that, without violation of this Agreement, compete with the products or services contemplated by the disclosing party’s Confidential Information.
- Injunctive Relief. The parties acknowledge that a breach by either party of any provision of this Agreement will result in irreparable and continuing damage to the other party for which there will be no adequate remedy at law, and such other party shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including monetary damages if appropriate).
- Intellectual Property. Except as otherwise expressly provided herein, nothing contained in this Agreement shall be construed as conferring by implication or otherwise any license or right under any patent, trade name or copyright of ASON., Third-Party Licensor, or Customer.
- Third-Party Services. Provided subject to the following conditions:
- You agree to the Third-Party Service Providers’ current License Agreements as applicable to your jurisdiction. As we are regularly developing our solution, Third-Party Service Providers’ agreements may be changed from time-to-time by us at our sole discretion, without notification or remedy, which include without limitation:
- Use of Third-Party-Services for any purpose other than internal business or personal purposes is prohibited.
- Our Third-Party Service Providers are not responsible to you for any warranty provided by us. We provide no warranty.
- We do not represent or act as an agent of Third-Party Service Providers.
- Your rights to Third-Party Services under this section will automatically terminate upon the termination of all or any portion of our licensing agreement with Third-Party Service Providers and/or the termination of this Agreement.
- You consent to providing Third-Party Service Providers with information that personally identifies (or can be used together with other information to personally identify) you for the sole purpose of providing Third-Party Services to you.
- In the event of a breach of any of these conditions, Third-Party Services Providers will be Third-Party beneficiaries to this agreement.
- The liability of Third-Party Services Providers, will be limited or excluded to the same extent as is provided in the agreements of Third-Party Service Providers.
- We are permitted to immediately terminate your rights and access to Services dependent on Third-Party Services upon a breach of any terms of this Agreement.
- You may not, or permit any third party to: (i) sublicense, rent, lease, sell, offer to sell, distribute, or otherwise transfer rights to the Third-Party Services; (ii) distribute the Third-Party Services or derivative works thereof; (iii) copy the Third-Party Services (other than as expressly provided herein); (iv) remove any proprietary markings, copyright, notices, logos, trademarks, trade names or labels on the Third-Party Services; provided, however, that You may replace Third-Party Services Provider’s company’s logo in the Third-Party Services with your logo; (v) use the embedded database software, if any, as a general SQL server, as a standalone database or with applications other than the Third-Party Services; (vi) use the Third-Party Services on any computer not controlled by the Us; or (vii) allow any third party, other than your End Users to use the Third-Party Services;
- This Agreement only provides a personal, non-transferable, terminable and non-exclusive license to access the Third-Party Software for your internal business. You may not use Third-Party Software on more Mailboxes than the number for which you pay us.
- The Third-Party Service Providers, as our licensors, retains all right, title and interest, including any Intellectual Property Rights, in and to the Third-Party Services and all portions thereof, and no title to the Third-Party Services, or any Intellectual Property Rights in the Third-Party Services, is transferred to you.
- Additionally, you will bind your end users, if any, that are third party consultants, contractors, service providers, agents or representatives to the terms of this Terms of Service: General, Section 11, and perform any act or execute any document that may be required to bind such end users in the jurisdiction in which such end users will be using the Third-Party Services and you will indemnify and hold us harmless from any losses or expenses arising out of or related to a breach of the foregoing requirement.
- Section Headings: Title and headings of sections of this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement.
- Transfer and Assignment: Neither party, other than for collateral purposes, may sell, assign or transfer this Agreement without the prior written consent of the other party, except that either party may assign this Agreement to any of its affiliates or any person or entity who acquires substantially all of its assets.
- LIMITATIONS TO SERVICE: We do not promise that the Service will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information and property. ASON AND/OR ITS THIRD PARTY SERVICE PROVIDER RESERVES THE RIGHT TO REFRAIN FROM PROVIDING ANY OR ALL SERVICES ORDERED AND INSTEAD REFUND THE CUSTOMER’S PAYMENT, WHOLLY OR IN PART, ON THE BASIS THAT THE MINIMUM SYSTEM REQUIREMENTS ARE NOT MET OR THE TECHNICAL NEEDS (INCLUDING WIRING OR OVERCOMING PHYSICAL OR TECHNICAL BARRIERS) OR OTHER REQUIREMENTS OF THE CUSTOMER ARE UNUSUAL OR EXTENSIVE AND BEYOND THE SCOPE OF THIS SERVICE AGREEMENT AS REASONABLY DETERMINED BY ASON AND/OR ITS THIRD PARTY SERVICE PROVIDER AND/OR LICENSOR. ASON MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY SERVICES AND RELATED SUPPORT SERVICES AND AS BETWEEN YOU AND ASON, SUCH SERVICES ARE PROVIDED “AS IS.” Our Service is subject to availability of our qualified team members and our communications services.
- Compliance with Laws: You will strictly comply with all applicable laws and regulations relating in any manner to the distribution of the Service and software including, but not limited to, (i) complying with all applicable United States export laws, rules, and regulations, and (ii) obtaining all necessary export and import licenses or permits and any other government approval necessary for the importation of the software or Service into any country other than the United States. You confirm it will not export or re-export software or Service, directly or indirectly either to (a) any countries that are the subject to United States export restrictions; any End User who you know or has reason to know will utilize them in the design, development or production of nuclear, chemical or biological weapons; or any End User who you know has been prohibited from participating in the United States export transactions by any federal agency of the United States Government. You acknowledge that software and Service may include technical data subject to export and re-export restrictions imposed by United States law.
- You represent and warrant: (a) You have received all necessary permits, licenses, approvals, grants and charters of whatsoever kind necessary to carry out the business in which you are engaged; and (b) you have complied and does comply with all laws, regulations, orders and statutes which may be applicable to you whether local, state, federal or foreign. From the date of this Agreement until the termination hereof, you agree to operate in accordance with and to maintain current all such certifications, permits, licenses, approvals, grants and charters, and to comply with all applicable laws, regulations, orders and statutes, whether local, state, federal or foreign. You agree to indemnify, defend and hold harmless us from all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses, arising out of your failure to comply with this provision.
- We represent and warrant: (a) We have received all necessary permits, licenses, approvals, grants and charters of whatsoever kind necessary to carry out the business in which we are engaged; and (b) We have complied and do comply with all laws, regulations, orders and statutes which may be applicable to us whether local, state, federal or foreign. From the date of this Agreement until the termination hereof, we agree to operate in accordance with and to maintain current all such certifications, permits, licenses, approvals, grants and charters, and to comply with all applicable laws, regulations, orders and statutes, whether local, state, federal or foreign. We agree to indemnify, defend and hold harmless you from all claims, actions, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and expenses, arising out of our failure to comply with this provision.
- FORCE MAJEURE: If we and/or our third party service provider’s ability to render services is impaired by you or circumstances beyond the control of us and/or our third party service provider, we and/or our third party service provider may choose not to provide Service, at our sole discretion, without remedy.
- LIMITATION OF REMEDY: NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT SHALL THE LIABILITY OF ASON, ITS EMPLOYEES AND INDEPENDENT CONTRACTORS, AND/OR ITS THIRD-PARTY SERVICE PROVIDER(S) EXCEED THE AMOUNT YOU PAID FOR THE SERVICES, DURING THE PERIOD OF ANY FAILURE, DELAY, OR NON-PERFORMANCE OF SAID SERVICES, THAT GAVE RISE TO THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT SHALL ASON, ITS EMPLOYEES AND INDEPENDENT CONTRACTORS, AND/OR ITS THIRD-PARTY SERVICE PROVIDER(S) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXPENSES COSTS, PROFITS, LOST SAVINGS OR EARNINGS, LOST OR CORRUPTED DATA, OR OTHER LIABILITY ARISING OUT OF, OR RELATED TO, THE SERVICES PROVIDED BY ASON AND/OR ITS THIRD PARTY SERVICE PROVIDER(S) OR OUT OF THE INSTALLATION, DE-INSTALLATION, USE OF, OR INABILITY TO USE YOUR COMPUTER SOFTWARE, HARDWARE, PERIPHERALS, OR THE NETWORK RESULTING FROM THE SERVICES PROVIDED HEREUNDER. OUR THIRD-PARTY SERVICES PROVIDERS SHALL BE THIRD-PARTY BENIFICIARIES TO THESE LIMITATIONS AND EXCLUSIONS OF LIABILITY.
- RELEASE OF LIABILITY: BY AGREEING TO THESE TERMS, NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT YOU AFFIRMATIVELY RELEASE AND HOLD HARMLESS ASON, ITS EMPLOYEES AND INDEPENDENT CONTRACTORS, AND/OR ITS THIRD PARTY SERVICE PROVIDER(S) FROM AND AGAINST ANY LOSS, LIABILITY, OR DAMAGE THAT YOU, YOUR ORGANIZATION OR A THIRD PARTY MAY SUFFER, INCLUDING AND NOT LIMITED TO ANY LOSS OF ANY DATA AND THE NON-FUNCTIONING OF ANY COMPONENT OR ELEMENT OF YOUR COMPUTER SOFTWARE, HARDWARE OR NETWORK RESULTING FROM ASON, ITS EMPLOYEES , INDEPENDENT CONTRACTORS, THIRD PARTY SERVICE PROVIDERS, AGENTS, AND LICENSORS, REGARDLESS OF WARRANTIES, DISCLAIMERS AND WAIVERS.
- Notices: Unless specifically noted otherwise, all notices required to be given to either party shall be sent to the names and e-mail address as presented by you and to us at: .
- Severability: Each provision of this Agreement and any Amendment(s) must be interpreted in a way that is valid under applicable law. If any provision is held invalid, the remaining provisions of the Agreement and any Amendment(s) will remain in full effect.
- Remedies Cumulative: Any rights of termination, cancellation, liquidated damages or other remedies prescribed in this Agreement and Amendment(s) are cumulative and are not intended to be exclusive of other remedies to which the injured party may be entitled at law or equity in case of any breach or threatened breach by the other party of any provision of this Agreement. Use of one or more remedies shall not bar use of any other remedy for the purpose of enforcing provisions of this Agreement; provided, however, that a party shall not be entitled to retaining the benefit of inconsistent remedies. This Agreement is governed by the laws of the State of Illinois, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Cook County, Illinois. You and we waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
Addendum 3: Billing Policies and Procedures
- Pricing. In U.S. dollars unless otherwise specified and can be found on our website, by periodic Reporting, and by using the Customer Center resources. Prices do not include applicable taxes, if any. You agree to pay or reimburse us for any and all applicable taxes. If you choose to continue to use our products or services after receiving notice of any Service or Price change, at our sole discretion, the change may apply to you immediately after the date you received notice and be reflected in your . Please see our .
- Order Processing. To validate your chosen form of payment you may be charged $1.00 (US) and refunded $1.00 (US). Coincident with your order, this validation should not show up on your credit card statement. Please contact us at your earliest convenience if our Order Processing does not meet your expectations, we will resolve any Issues promptly: use the Customer Center’s Help Desk , or call us.
- Fraud Protection: For the protection of our customers, we use various automatic systems to record transactions and orders, and to detect and prevent prospective fraud and probable violators of our , such as and not limited to people using stolen credit cards to sign up for service and try to send out . You understand we use these systems for your protection, and if you are having Issues signing up for services, it is possible you have been incorrectly identified by our fraud protection systems. Please call our Billing department directly by Phone for assistance, or contact us by completing this , we will verify your information, and sign you up for service manually at your convenience.
- Term. Term of Service (“Term”) is prepaid month-to-month (“monthly”) or if available, prepaid annually (“annual” or “yearly”).
- Free Trial Period. Lasts at least 30 consecutive days, including weekends and holidays. Welcome! You are considered a Customer by us and should receive Support. While you may receive Reporting titled the Invoice Preview, you will not be actually invoiced nor charged for Service until after your Free Trial Period expires, unless of course you cancel Service before your Free Trial Period Expires (see Section 14). You are not entitled to more than one Free Trial Period (see ).
- Monthly. If you select a prepaid monthly Term, your first invoice will include the prorated time period between the end of your Free Trial Period and the beginning of the following, first month of paid Service, in addition to the first month of paid Service, as applicable.
- Annual. If you select a prepaid annual Term, your Service start date for Annual billing purposes will be the first of the month following the end of your Free Trial Period. So, you received the benefit of using the Account(s) until the last day of the month your free trial period ends in without any additional charge. In effect, this means there’s a Free Trial Period of longer than 30 days for most customers selecting an Annual Term. Example: you order service with an Annual Term on the 10th of March. You won’t be billed for service until the 1st of May, providing about an extra 3 weeks Service free of additional charge.
- Billing Cycle. Our automated billing process closes on the 28th of every month, when your Usage is calculated.
- Overview. Not only mailboxes are counted, but also features such as storage (GB) used.
- Phase 1. 21st of the month: initial mailbox/feature count. Invoice Preview sent for additions/changes to Account(s).
- Phase 2. 28th of the month: final mailbox/feature count. Next month’s invoice, if any, is based on this count.
- Phase 3. 1st of the month: invoicing and report, if due.
- Phase 4. 3rd of the month: payment processing, if due.
- Phase 1. 21st of the month: We count your mailboxes/features for the first time for the current month. If based on this count you would get an invoice, then we email you an Invoice Preview with an attached mailbox/feature report. The purpose of the Invoice Preview is to provide time to adjust your accounts and avoid service fees before Phase 2, when we make the definitive count for the month.
- Phase 2. 28th of the month: We count your mailboxes/features again, providing the definitive, monthly account report we use to generate your invoice in Phase 3, assuming you have an associated payment due.
- Phase 3. Around the first of the month: If the definitive report shows you have a payment due, then we will send you an invoice with an attached mailbox report for your reference. If there’s an issue with the invoice, please contact us within 48 hours, before Phase 4′s automatic payment processing.
- Phase 4. Approximately two days later: our system processes payment for outstanding invoices, using your credit card or other electronic payment method on file.
- Changing Term.
- Monthly to Annual. Use the Customer Center resources to change (“upgrade”) the Term from month-to-month to annual. You may opt to go Annual any time, and benefit from its material discounts.
- Annual to Monthly. When you select an annual Term, either at ordering or upgrade, you may not change the Term to Monthly until the end of your annual term. You may only opt to switch to a monthly term at the end of your annual term.
- Adding Service. Answers the question: when will you be billed for accounts you’ve added?
We have invested in reporting, self-service systems, and customized, up-to-date documentation to provide you with the maximum practical autonomy with your Service. You are solely responsible for consequences of your configuration changes, Service additions. To change your order, please use the self-service tools available from the to add/delete mailboxes, change quotas, etc. Using , you may also change your contact information and as permitted, Service Term. You may, of course, contact us for assistance to make changes to Services. Because we subscribe to a “teach-to-fish” philosophy, in such cases where changes can be made independently by you, we will usually instruct you how to make changes yourself so that you can expedite future changes independently. One-time setup fees, if any, may be applicable each time you make a net-addition to a resource such as and not limited to the number of accounts in any given calendar month (see ).
- Monthly Change. Charged at your following final mailbox/feature count, on the 28th, for the next month’s Service. For example: you add a mailbox on the second (2nd) of this month. On the 28th of this month, we automatically count your mailboxes/feature, and invoice you for them around the first of next month, including the new mailbox. We automatically charge your credit card, or other electronic payment method, on file around the third of next month. Note: you received the benefit of using the account from the 2nd until the 28th of this month without any additional charge!
- Annual Change. Charged at your following final mailbox/feature count, on the 28th, and automatically prorated to the anniversary of your Term. For example: with six months remaining in your Term, you add an account (“mailbox”) on the second (2nd) of this month. On the 28th of this month, we automatically count your mailboxes, and invoice you around the 1st of next month, only for the new mailbox and only prorated for the six months remaining in your Term, around the first of next month. Like the Monthly example above, you received the benefit of using the account from the 2nd until the 28th of this month without any additional charge.
- Avoiding New Fees. Remove new service you added prior to the close of the billing cycle. For instance, if you added mailboxes, subtract them before the automatic, final count on the 28th of the month.
- Payment. Payment for Service is due in advance. There are no returns. Credit card, e-check and PayPal payments may be made securely through the ‘s resources, or by Phone. Neither cash or check payments are not accepted without our management’s written approval. A late charge fee of 1.5% per month or the maximum interest allowable by law, whichever is lower, shall apply to any late payments made by you to us. You are responsible for all non-recurring and recurring charges after Service Commencement Date. You may update your payment method using the ‘s resources.
- Whistle-blower. You agree to report of any payments, or requests for payments other than those described herein at your earliest opportunity, and of such activity may entitle you to waived Service charges, at our sole discretion.
- Credit Card. When you choose to provide your credit card information to us, you agree that we may charge your credit card for amounts due for Service periodically, without your further approval, until Service is canceled by you or us. Payments for Service once made are non-refundable. You affirmatively agree not to request any refund from your credit card company for our Service. Payments over $1,000.00 at any one time, or in any one calendar month, on an American Express credit card may be subject to an additional, 5% transaction service fee.
- Credit Card Expiration. By sending an email to the contact listed by you, we will automatically attempt to warn you three times over an approximately two week period if your credit card has expired or is declined. You acknowledge that all services may be immediately suspended or terminated (“Interruption”) at our sole discretion and without further warning if any payments for services are past due by more than 10 days or if any charges made by us to you are declined or charge-backs are claimed against any outstanding invoiced amount. Such Interruption does not relieve you from the obligation to pay Service charges.
- Renewal. Your account will renew automatically at the then current, same periodic rates and plan, unless we terminate it, or you terminate it prior to the 28th of the month preceding the end of your Term (“Automatic Renewal Date)”. You must cancel your subscription pursuant to Section 14 Cancellation before the Automatic Renewal Date to avoid automatic, non-refundable Service fees.
- Credit. At our sole discretion, any credits we offer or are due under our will be provided as credit toward future Service. We shall not provide any credits for work stoppage or service outages necessary to provide . Credit will not be offered nor provided for any performance issues, downtime or interruptions, in part or in full, due to “ ” services, devices or software.
- Blackberry (BES) Network Fees. BES licensing and support is included in the Blackberry (BES) , however, you are soley responsible for the cost of required telecommunication services, such as and not limited to your mobile operator’s fees to connect to the BES network.
- Billing Department Availability. , unless otherwise scheduled in writing in advance.
- Supplemental Service. If we choose to provide any without additional fees, we are not obligated to provide any subsequent, Supplemental Service without additional fees. Cumulative, additional charges for hourly work may apply for rapid response (“Emergency”) services, requests for specific, senior or multiple technicians, on-premises services and service outside of , as agreed upon in writing prior to services.
- Counting (“Measurement”). At least twice each month our automated system counts your mailboxes and Service features, along with the storage size in (GB) of your Accounts in aggregate (“pooled”). See Billing Report, below.
- Counted (paid outside of your free, 30-day trial).
- Accounts (“mailboxes”),
- storage size, including all email viewable in all folders, as well as all attachments, calendars, contacts, tasks, documents, briefcases, files, and other information directly associated with each account;
- legal compliance archives (LCA), if any;
- Blackberry Enterprise Server (BES) accounts; and
- any other Service usage and features listed on the Pricing page, excepting those Uncounted, described herein below.
- Uncounted (free). Not affecting measurement and reporting, therefore provided free-of-additional charge.
- Backups we store for you. 4 times your usage to accommodate !
- Bandwidth. Transfer of data to and from ASON.
- Legal Compliance Archives. Any storage devoted to archiving inbound and outbound email and attachments for your accounts is not counted against your total storage.
- Annual Term free storage. Every GB is paid for Monthly Term accounts, whereas the first 25GB of storage per account, pooled, is provided free-of-charge for Annual Term accounts. For instance, if you have 4 accounts, and an Annual Term, you may have up to 100GB of storage between the four accounts before you should expect any extra charges for account storage size.
- Rounding. Occurs after the storage for all accounts is pooled. Different for Annual vs. Monthly Term accounts.
- Monthly Term. Rounded to the nearest GB.
- Annual Term. Rounded up to the nearest 100MB (tenth of a GB).
- Account Quotas. Do not set your quotas without reading this section first! Quotas limit your Accounts’ sizes, and educated quota-management will save you money and time. Most customers use quota-unlimited accounts, setting 0 for all their accounts’ quotas.
- Default account quota. By default, quotas for both Annual and Monthly Term accounts are set to 0, quota-unlimited, to avoid bouncing mail when reaching maximum quota, account full conditions.
- Quota-unlimited accounts. Zero quota means “unlimited,” only because it removes an account’s size limit. You will be billed for the total account storage actually used for each of your accounts.
- Quota-limited accounts. Unlike the default, zero quota, quota-unlimited accounts, if you set a quota other than zero for an account, you will be charged for the quota(s) you have set, pooled across all of your accounts. For instance, if you have three (3) Accounts, each with 1GB quotas, then you will be billed for three (3) GB storage, regardless of how much storage you are using.
- Quota units. Quotas are set in megabytes (MB). They’re not gigabytes (GB)! Use whole numbers greater than 0 to set quotas, where there are approximately 1,000 MBs in 1 GB.
- Changing quota. Create and set variable for any one or more of your Accounts with the Customer Center .
- Mixing quota unlimited and limited accounts. Billed grouped into those accounts for which you’ve quota-limited, and those you’ve quota-unlimited.
- Max quota (“Max account size”). The maximum quota you may set for any account is currently about 50,000 MB, or 50 GB. See Cloud Addendum: , for system behavior when an account is full.
- Billing Report. Automatically attached to your previews and invoices, the Billing Report details all of your accounts, along with their features and storage. Use the Billing Report to understand the basis for Service pricing, as well as conveniently see the current status and authorization-level for each of your accounts.
- Bold words. Highlights change. The account or feature is new, or its name has changed since your last Billing Report.
- Row color.
- Yellow. Quota-unlimited pricing (default). You’re billed for total, pooled usage.
- White. Quota-limited pricing. You’re billed for total, pooled quotas.
- Gray. Closed status. See below.
- Current Status. As of the date Generated. Use the Admin Console to change the status of accounts.
- Active. This is the default, normal status of accounts.
- Locked. Locked accounts cannot send nor receive email. If due to too many failed password attempts, unlock accounts in the Admin Console. If due to suspension for non-payment, please call our Billing Department, or visit the Customer Center, use our Help Desk ticketing system to request unlocking mailboxes.
- Closed. Only available for customers with a Monthly term, Closed accounts receive a discount, see . Closed accounts cannot receive nor send email.
- Blackberry (BES). “1″ means the account has registered on one of the ASON BES servers.
- LCA. “1″ means the account is registered for Legal Compliance Archiving ().
- Admin Console Access. “1″ means the account is an Authorized User, can login to the Admin Console.
- PAST PURCHASES, AND FEATURES included free with Pending purchases, if any (only applies to annual terms). The totals to which you’re entitled without additional charge. If you have an Annual term, and you’ve purchased additional storage or accounts in some earlier month, it will be recorded here. Also account features, such as storage, included free-of-additional-charge with any new mailboxes reported. All available discounts are applied before determining new accounts and features pending purchase.
- NEW ACCOUNTS AND FEATURES PENDING PURCHASE, as of this report. The net difference between the sub-totals of “In Use” and “Past Purchases…” is your “Pending purchases.” If the report is a Billing Report, “Pending purchases” are the totals based on which you will be invoiced. If the report is an Invoice Preview or Self-generated Report, these totals are for your information as you may make changes before final totals for invoicing are calculated on the 28th of the month.
- Minimum Requirements. We recommend exceeding the minimum requirements. The more up-to-date your systems are, the better performance your team will get. You understand the older your computers and operating system, and slower your broadband connection, the longer it will take to access and/or use Service, and for us to perform technical support for you. While we support most up-to-date, popular browsers, including Safari, Chrome and Explorer, we recommend the free Firefox web browser for best performance across all operating systems. Other software and devices may be supported, please with questions.
- All computers must have a minimum of 10GB of available hard disk space and 2048 MB of available RAM
- Applicable password(s) must be available in the event remote control support is requested and deliverable by us
- Operating Systems
- Microsoft Windows XP SP2 or greater
- Macintosh 10.5 operation system or greater
- Desktop clients
- For Outlook synchronization: Outlook 2003, 2007, 2010 or 2013 with .PST files of under 2GB (larger sizes may work)
- For CalDav and CardDav synchronization: Macintosh 10.5 operation system or greater, iPhone 3.0 or greater, or an up-to-date copy of Thunderbird
- For IMAP/POP support: any standard IMAP/POP client software
- Mobile Devices
- For iPhone connectivity, iPhone 2.1 or greater
- For synchronization, at your own cost you must have access to the BES network through your telephone provider
- Broadband. We assume broadband services are installed, adequate and operational prior to the time of Service, including connections to any broadband router or “modem.”
- Firewall and Traffic-shaping. We also assume you are not using traffic shaping or other firewalling or security techniques that may negatively impact Service performance.
- Email Throttling. For the protection of our customers, we throttle outbound email to help prevent . We do not publish parameters of this system to further discourage abuse. Request increase for an account, or a domain, using the Customer Center’s Help Desk web .
- RBLs and Internet Standards. We subscribe to various , and require mail servers with which we communicate to conform to generally accepted standards as recognized by published Requests for Comments ( ). We use these systems and policies for your protection, even though they sometimes will cause Issues, for example and not limited to the outright rejection of some inbound email. If you suspect you are not receiving email from a specific individual or group, please verify the Issue by duplicating it, request we investigate the issue, using the Customer Center’s Help Desk web , and including the full header information of email not reaching your mailbox(es), by having the mail cc:’d to another account at which you can receive the mail, or by faxing it to us (contact us for the fax number please).
- Defaults. We use certain default settings and policies (“Defaults”) for your convenience and protection, even though they sometimes will cause Issues, for example and not limited to requiring End Users to reset passwords prior to login, changes to your default preferences, and ticketing requests to personalize default settings for you. For any you cannot change yourself using the ‘s self-service tools, you may submit a to change Default settings. Some examples of defaults include:
1. Retention. Email and data in your mailboxes are set to remain there until you cause them to be deleted, except for the messages in the Trash and Junk directories. It is our standard practice to delete messages left in Trash and Junk folders after 30 days.
2. Security. Among other security settings, to lock mailboxes with a certain number of failed consecutive login attempts.
- Quota reached (“Account full”). When an account reaches 90% or more of its , we automatically send a warning to the Account’s user. If a mailbox reaches 100% of its quota, it is “full.” When an Account is full, messages can no longer be received by the Account, nor can you add other types of data like calendars or files until you either A) delete some account data to make more room, or else B) raise the account’s quota. For up to 5 days after an account is full, we will continue to store in-bound mail for delivery. After 5 days if neither option A) nor B) is taken, then we will return email to senders. Reference Billing Addendum: .
6. Security. We make commercially reasonable efforts to enable the secure transfer of data, such as and not limited to email to and from our , by using public SSL certificates to offer 256-bit SSL/TLS encryption of network services. Secured services include the following : SMTP (outbound mail), POP (inbound mail), IMAP (inbound mail and synchronization), LDAP (directory services) and HTTP (web mail, mobile and desktop synchronization). We make commercially reasonable efforts to secure our Cloud, physically by highly restricting and securing infrastructure administration, and hosting our Cloud in Data Centers monitored by live security guards, video surveillance, biometric and security code access.
7. Scheduled Maintenance. occurs during regular, planned periods.
a. Major maintenance. We have a standard maintenance period every Saturday evening from 10:00 pm to Sunday morning at 10:00 am. Services are normally available during this period. We attempt to minimize major, scheduled service interruptions, resulting in an average of fewer than 4 such periods annually, not more than once in any 30-day period.
b. Minor maintenance. Additionally, within the major maintenance window and without advanced warning, between 11:30 pm to 12:30 am CST/CDT on Saturday evenings, we may test, apply fixes or improvements to Zimbra. This may cause services to be unavailable for some users or groups for from 5 to 30 minutes, most often less than 10 minutes. Fixes, tests or improvements during this time, announced or not, are also considered Scheduled Maintenance.
c. Notification. We shall attempt to notify and coordinate with you a minimum of 4 days in advance and no less than twenty-four (24) hours in advance of all non-emergency maintenance. By e-mail, RSS newsfeed (“News”) on our blog, or Systems Status, we shall advise you of the expected duration of the maintenance window and the impact of the work to be performed. No further notice of maintenance windows may be provided to you.
d. Frequency. We make commercially reasonable efforts to schedule maintenance no more than once a month at times most convenient for the majority of those customers affected. We may schedule maintenance as often as we deem necessary to maintain system reliability and integrity, at our sole discretion.
A. Objective. Service reliability is our primary objective. While we recognize a primary value of our Service is innovative, new features, we are conservative about our upgrades. It is our policy to prioritize the stability and reliability of Zimbra over introducing new features and bug-fixes.
B. Testing Procedures. Revolve around our sandbox servers, a testbed simulating the Zimbra cloud environment, and involving much of our team. We will list minor issues that may impact your experience in our public blog and privately by email before the planned upgrade, along with any material new features, fixes. The decision to upgrade Zimbra may be reversed all the way up to the actual night of the upgrade by engineering for a variety of reasons, including for one example, failure of full-backups to complete as expected.
a. Upgrade the sandbox – Systems Administration
b. Administrative testing – Systems Engineering
c. Client-side testing – Support Specialists. Reference our .
d. Issue review and go/no-go decision – Operations Manager
9. Fair Use (“Acceptable Use”). We have not set a fixed upper limit on the amount of emails, bandwidth, telephone or online support requests you may make annually. While we understand that each of the organizations we serve are composed of unique persons, we have based our and on reasonable use by the average Customer (collectively referred to as “Acceptable Use”). We reserve the right to monitor and record the nature and quantity of Service requested by each Customer. Notwithstanding anything else in this Agreement, we may immediately interrupt Service and terminate this Agreement without remedy for any one or more of the following reasons, at our sole discretion. Should we decide to terminate this Agreement for one or more of the reasons set forth below, we will notify you by email, chat or phone. Within three (3) days of receiving the termination notice, you may set forth reasons why termination is not warranted. We will consider your objections and thereafter render a decision. Any decision not to terminate your Service does not preclude us from terminating your account at a later date should there be another violation, either the same or different as prior violations, of this Acceptable Use policy, or for other reasons set forth in this Agreement. We consider unacceptable use of our Service.
a. requiring materially more Service than we have reasonably expected,
b. resale of Service, by us,
c. sending Spam or viruses, or other fraudulent uses,
d. using profanity or other abuse of any one our team, partners, affiliates or other customers,
e. allowing any non-customer to use your account and receive support services,
f. publishing an incorrect SPF record and failing to correct it promptly,
g. allowing any Account to be used by more than one End User,
h. distributing infringing material.
10. Beta: Our normal service guarantees, if any, do not apply to beta services and features, and service at all times is no more than best effort. Should you agree to participate in Beta-testing by using Beta services, you will provide helpful feedback so we can prepare the service for production.
- Abuse. Mailbox aliases named postmaster@ and abuse@ your domain name are established by default for you at Service commencement. You must monitor these addresses for complaints of , and respond promptly to affected recipients with a plan to prevent further complaints from past and future recipients.
Addendum 5: Support Policies & Procedures
- Help Desk Support. Only for the purposes of supporting our paid Service, we are also in the business of making attempts to diagnose computer problems and deliver basic computer trouble-shooting over the phone, and web. Help Desk Support for your is provided at our sole discretion.
- Support Guarantee. We will make commercially reasonable efforts to help you make best use of our Service. Yet no service is right for everyone. If we can’t satisfy your needs, and you want to move your Service, we’ll help you move. We appreciate the opportunity to remedy any Service problems you may experience quickly and at no additional cost if you warn us in writing that such problem(s) will lead you to terminate Service with us, and provide us 30 days to cure such problem(s). Furthermore, in the event you remain unsatisfied after providing us reasonable opportunity to remedy your service per the terms of this Agreement, within 10 days of your written request using the Customer Center’s , we will make your Accounts’ ZCS backup available to you on disk or across the internet to help you restore your information elsewhere. See .
- Support Availability. Unless otherwise scheduled in advance or responding to an Emergency, we make commercially reasonable efforts to be available to respond to your requests for support at the following :
- Help Desk: 7 days/week, including nationally recognized holidays, 7AM-11PM
- Engineering, Programming & Professional Services: 7 days/week, 8AM-8PM
- Out-of-scope Support (“Supplemental Service”). Desktop or operating system support, support for software used outside of its intended purpose or unsupported by its manufacturer or labeled “,” support of use of our services in violation of the terms of this Agreement, end-user training delivered to more than 2 people simultaneously, programming, senior technicians and advanced technology services, as determined by us at our sole discretion, will be delivered as , mutually agreed on by Us in writing, and in advance of Supplemental Service. All Supplemental Service is performed on an “as is, as available” basis.
- Service Requests. We make commercially reasonable efforts to make Help Desk Support available by chat, phone, and , the Customer Center’s Help Desk’s issue tracking system. We maintain the ticketing system to enable you to describe and prioritize Issues. Contact with us may not be recorded beyond what is documented in ITS. Requests for Service are accepted at any time through ITS. We make commercially reasonable efforts to keep tickets generated by ITS accessible to you in a ticketing history section for the life of this Agreement. For transparency, tracking and continuity purposes, you are expected to use ITS whenever practical, and to describe specifically, and prioritize service requests with reasonable accuracy. Response to support requests is provided on a first come, first served basis, and other factors, at our sole discretion. We make reasonable efforts to prioritize in-bound requests for service from you and other customers with the same, or similar ticket priorities. To help improve our availability to meet your needs, support requiring senior or specific technicians should be scheduled a minimum of 5 Business days in advance.