*Formerly referred to as the Client Services Agreement
EVERYONE.NET'S SERVICES INCLUDE PROPRIETARY MATERIAL, THE USE OF WHICH IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS CUSTOMER AGREEMENT, AS AMENDED FROM TIME TO TIME UPON NOTICE FROM EVERYONE.NET. PROCEEDING WITH THE USE OF THE SERVICES, OR THE CONTINUED USE OF THE SERVICES AFTER RECEIVING NOTICE OF ANY CHANGES, CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS CUSTOMER AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS, PLEASE RETURN TO THE HOME PAGE NOW.
This Customer Agreement ("Agreement") is an agreement between you, an individual or an individual acting on behalf of your employer, a corporation, partnership, or other legal entity that will be using Everyone.net's services ("Customer") and Proofpoint, Inc., acting through its division Everyone.net, with offices at 892 Ross Drive, Sunnyvale, CA 94089 ("Company"). The Company’s services, as set forth in this Agreement, and as Customer has elected to obtain through Customer's Control Center account (the "Services"), include proprietary materials, the use of which is subject to the terms and conditions of this Agreement, Company's Support Terms and any related amendments.
- General Terms and Conditions for Use of Services.
a) Provision of Services. Company agrees to use reasonable commercial efforts to provide to Customer, and Customer accepts, the Services which may be modified or updated by Company from time to time, for use exclusively by users of the Web site owned and operated by Customer ("Customer Site"), in accordance with the terms and conditions of this Agreement. In the event that Customer subscribes to Company's Publisher Mail service , Customer shall obtain either the Publisher Email Service or a Paid Email Service.
b) Branding. All interface components within the Services, including the meta-search query box which may appear on Web pages not hosted by Company, may be Customer-branded and may display Customer's name, logo, trademarks and service marks within the designated area of the Web pages hosted by Company as Customer shall specify from time to time using the automated features included in the Services (collectively, the "Services Pages"). Notwithstanding the foregoing, Company may prominently display on all Services Pages Company's name, logo, trademarks, service marks and a phrase substantially similar to "powered by Everyone.net," or such other phrase as Company may specify from time to time, as well as any names, logos, trademarks, or services marks of third party co-branding clients of Company, unless Customer subscribes to a Paid Email Service.
c) Domain Name. Customer shall be solely responsible for: (i) registering a domain name for the Customer Site, located at the URL provided by Customer to Company in the text input box named "Site URL," with an ICANN approved domain name registrar, reseller, New.net reseller, or any successor organization; (ii) keeping such domain name registration, and the associated Web site, current and active; and (iii) paying all costs associated with such domain name registration. Such domain name shall be the sole property of Customer.
d) Prohibited Customer Site Content. Customer Site shall not contain any content which is defamatory, inaccurate, abusive, obscene, infringing, threatening or which violates any federal, state or local law. The following types of content are inconsistent with Company's corporate policies: (i) pornography or links to any pornographic materials; (ii) content that focuses on alcohol, tobacco, or firearms; (iii) pirated software or other content that violates third party intellectual property rights; (iv) links to sites that violate third party ownership rights; (v) hacking, phreaking, or other methods that violate the rights of computer users; (vi) subject matter advocating illegal activity or content that is collected or distributed illegally; (vii) any content which Company determines to be inconsistent with its corporate policies; (viii) any subject matter, visual or audio content, language or graphics specifically directed toward children under the age of thirteen (13) or made available to users known to be under the age of thirteen (13), unless Customer Site complies with the Children's Online Privacy Protection Act; and (ix) publicly available information which personally identifies any children under the age of thirteen (13).
e) Access to Customer Site. Customer agrees to provide Company full access to all parts of Customer Site upon request for the purpose of determining whether Customer Site complies with Section 1.d. of this Agreement. Customer agrees and acknowledges that if Customer Site, in Company's sole discretion, violates the terms of Section 1.d., Company shall be entitled, and reserves the right, to immediately terminate this Agreement and the Services provided to Customer, without refund of any fees paid or payment of any monies due to Customer hereunder.
(i) Customer's Registration. Customer agrees to: (a) provide true, accurate, current and complete information about Customer as prompted by Company's signup form; and (b) maintain and update this information to keep it true, accurate, current and complete. If any information provided by Customer is untrue, inaccurate, not current or incomplete, Company has the right to terminate this Agreement immediately and refuse any and all current and/or future uses of the Services. Customer must be age thirteen (13) or older to use the Services. Customer will receive a password and account upon completing the signup process. Customer is responsible for maintaining the confidentiality of the password and account, and is fully responsible for all activities that occur under Customer's account. Customer agrees to immediately notify Company of any unauthorized use of Customer's password or account, or of any other breach of security.
(ii) User's Registration. All persons using the Services provided by Company on behalf of Customer pursuant to this Agreement ("Users") may be required to sign up and provide personal identifying information, including, without limitation: name and contact information, gender, birth date, occupation and industry, shipping and billing information, credit card numbers and other payment information, behavior patterns, purchase history, and other information. Company may modify the required information fields on the User signup form from time to time. In addition, Company may request Users to fill in optional information fields. Users have the ability to edit the foregoing information at any time. All of the foregoing information is collectively referred to as "Registration Data."
g) Restrictions. Except as expressly set forth above, Customer shall not transmit, display or otherwise make available (or allow Users or any other third party to transmit or make available) the Services or the content thereof to any third party (other than registered users). Except as expressly permitted by Company, Customer shall not alter, delete or modify any attributions included within the Services. Customer shall not indicate that it owns or powers the Services, in any manner, on any Web page of Customer Site, whether those pages are hosted by Customer or by Company.
h) Ownership. Company and its licensors and third party content providers retain all rights and title to, and interest in, all of the information, content, data, designs, software, business methods, materials, and all copyrights, patent rights, trademark rights, service mark rights and other proprietary rights thereto provided pursuant to this Agreement. Except as expressly provided herein, no right or license, with respect to any copyrights, patent rights, trademark rights, service mark rights or other proprietary rights, is granted under this Agreement. All rights not expressly granted hereunder by Company are expressly reserved to Company and its licensors and information and content providers. Under no circumstances shall: any part of the Services be physically transferred to Customer; or Customer be entitled to a license to the underlying software.
- Paid Services (“Paid Services”). The following terms shall apply to Customers purchasing any Paid Services and will apply to those Customers or Users who have subscribed to Paid Services ("Members").
a) Mail Plus Total Protection is an advertisement-free service; therefore, advertisements (including, but not limited to, banner or text ads, "pop-unders" or "skyscrapers") should not appear on the Services Pages accessed by Members. Furthermore, advertisements (other than advertisements relating to Company's services) should not be received by any Members. Company shall use commercially reasonable efforts to ensure that these restrictions are complied with.
b) In addition to the features then available to Company's Publisher Mail Users, Members may enjoy POP and SMTP email protocols (permitting Members to send and receive email using a wide array of email software), a 2GB email mailbox and support services pursuant to Company's Support Terms. Complete features of the Paid Services may be found at everyone.net/mailplus.
c) Fees and Payment.
(i) Before being deemed a Member, and before a Customer or User will be entitled to receive any Paid Email services, Company must first receive from Customer or User, as applicable, and successfully process, the applicable membership fee, as may be indicated on the Company’s one-business Service Agreement. These services may include, but are not limited to, MailPlus upgrade, Extra Storage upgrade or any a-la-carte based upgrades.
(ii) All prices and fees are exclusive of sales, use, withholding, and similar sales tax-like privilege taxes, fees or liabilities (collectively, “Taxes”). Customer or User, as applicable, will pay all such Taxes. If Customer or User provides Company with a sale for resale exemption certificate, sales tax exemption certificate or other applicable exemption certificate, Company will not invoice the Taxes covered by such exemption certificate(s).
(iii) Once the applicable membership fee has been received and successfully processed by Company, Member shall be permitted to enjoy the Paid Email services for a purchase period, or whatever term as indicated in the one_business Service Agreement, subject to the terms and conditions of this Agreement, the End-User Services Agreement, the Support Terms and any related amendments. All fees are due immediately and prior to the provision of the Paid Email Service, and are non-refundable. Company reserves the right to change fees by notifying Members by email thirty (30) days prior to the effective date of the change, to the Member’s email address. Members shall make all payments in U.S. currency with a credit card, which will be billed in advance for any and all fees, or through any other payment methods provided by Company.
Unless a written cancellation notice is received, the Company will use the current Member billing profile to renew the Paid Email service at the end of the service. Cancellation notices must be received thirty (30) days prior to the end of the current term and sent to firstname.lastname@example.org.
Company reserves the right to suspend or terminate Members Paid Email Service if credit card charges are denied or if Member fails to make timely payments. Such suspension or termination shall not relieve Member of the obligation to pay the fees due. Member agrees to pay to Company, Company's reasonable expenses, including attorneys' fees and collection agency fees, incurred in enforcing Company's rights under this Agreement.
Support Services. Company will provide customer support as set forth by Company's Support Terms.
a) License Grant of Marks. Subject to all the terms and conditions of this Agreement, each party ("Licensor") hereby grants the other party ("Licensee") a non-exclusive, non-transferable, non-sublicensable license to use the Licensor Marks solely for furthering the purpose of this Agreement and as provided herein. "Licensor Marks" refer solely to the names, trademarks, service marks and logos as provided by Licensor in writing specifically for use under this Agreement and which are incorporated herein by this reference. However, Licensor, in its sole discretion from time to time may, upon written notice to Licensee, change the appearance and/or style of any Licensor Mark, or add to or subtract from the Licensor Marks previously licensed. Unless required earlier by a court order or to avoid potential infringement liability, Licensee will have fourteen (14) days from its receipt of notice to implement any such changes. Licensee hereby acknowledges and agrees that: (i) the Licensor Marks are owned solely and exclusively by Licensor or its affiliates; (ii) the Licensee has no rights, title or interest in or to the Licensor Marks, except as set forth herein; and (iii) all use of the Licensor Marks by Licensee will inure to the benefit of Licensor and its affiliates. Licensee agrees not to apply for registration of any of the Licensor Marks (or any mark confusingly similar thereto) anywhere in the world. Licensee agrees that it will not engage, participate or otherwise become involved in any activity or course of action that diminishes and/or tarnishes the image and/or reputation of Licensor or of any Licensor Mark
b) Use and Display of Marks. Licensee acknowledges and agrees that the presentation and image of the Licensor Marks should be uniform and consistent with this Agreement and with respect to all services, activities and products associated with the Licensor Marks. Accordingly, Licensee agrees to use the Licensor Marks solely in the manner in which Licensor will specify from time to time, and the Licensee agrees to cooperate in facilitating the Licensor's monitoring of the Licensee's use of the Licensor Marks, including but not limited to the nature and quality of the services and products offered by the Licensee in connection with the Licensor Marks.
c)License Grant of Content. Subject to all the terms and conditions of this Agreement, Licensor hereby grants Licensee a non-exclusive, non-transferable, non-sublicensable license to use the Content as defined herein. "Content" refers solely to the content or other materials provided by Licensor to Licensee specifically for use under this Agreement and incorporated herein by this reference.
- Term; Termination.
a) Unless expressly provided otherwise in a written agreement between Company and Customer, this Agreement shall commence on the date of acceptance by Customer and shall remain in full force and effect unless and until terminated as provided below, unless Customer subscribes to a Paid Email Service in which case this Agreement shall commence by the next business day upon Company's approval of Customer's payment to Company and shall continue on a month-to-month or annual basis, as indicated in the order form, in full force and effect unless and until terminated as provided below.
Unless expressly provided otherwise in a written agreement between Company and Customer, either Company or Customer may terminate this Agreement at any time by providing thirty (30) days prior to the end of the current term written notice to the other party. Customer may cancel any of the individual Services at any time; however, this Agreement shall remain in effect with respect to the Services which Customer continues to use. Customers who subscribe to a Paid Email Service must send a cancellation request via email to email@example.com. Customers who cancel a Paid Email Service within fourteen (14) days of an initial signup will be provided with a full refund. No refunds are provided for early cancellation of renewal term.
This Agreement may be terminated by a party for cause immediately by written notice upon the occurrence of any of the following events: (i) the other ceases to do business or otherwise terminates its business operations, except as a result of an assignment permitted under Section 12.a. below; (ii) the other fails to promptly secure or renew any license, registration, permit, authorization or approval for the conduct of its business in the manner contemplated by this Agreement, or if any such license, registration, permit, authorization, or approval is revoked or suspended and not reinstated; or (iii) the other becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against the other.
This Agreement may be terminated by Company immediately by written notice if Customer: (i) contacts any User who Company identifies as having stated a preference not to be contacted by Customer; (ii) uses or discloses Registration Data, or other information arising from Users' use of the Services, in breach of the terms of this Agreement; (iii) violates any term of Section 1.d. of this Agreement; (iv) violates the terms and conditions of this Agreement as determined by Company in Company's sole discretion; or (v) fails to make timely payment for any applicable Paid Email Service . Company shall have no obligation to refund any of Customer's fees due to early termination of the Paid Email Service.
Upon termination of this Agreement, Company will maintain User accounts, and email messages for thirty (30) days. Users shall have access to their accounts and Customer shall have access to the names and email addresses of its Users during this thirty (30) day period. However, Company shall have no obligation to provide Customer with Users' names and email addresses after this thirty (30) day period.
Survival. Sections 1(f)(iii), 1(g), 4(e), 4(f) and 5 through and including 12, and, except as otherwise expressly provided herein, any right of action for breach of this Agreement prior to termination, shall survive any termination of this Agreement.
- Warranty Disclaimer. COMPANY AND ITS THIRD PARTY SUPPLIERS MAKE NO WARRANTIES TO CUSTOMER OR ANY PERSON OR ENTITY WITH RESPECT TO ANY INFORMATION, CONTENT OR OTHER MATERIALS OR SERVICES PROVIDED OR MADE AVAILABLE BY THEM HEREUNDER, AND DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND SUCH ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. FURTHERMORE, COMPANY AND ITS THIRD PARTY SUPPLIERS DO NOT GUARANTEE THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY DATA INFORMATION OR DATA SUPPLIED, AND SHALL NOT BE LIABLE FOR ANY ERRORS, OMISSIONS, INTERRUPTIONS, LOSS OF DATA OR DELAYS THEREIN OR FOR THE RESULTS OBTAINED FROM THE USE OF SUCH DATA OR INFORMATION OR FOR ANY DAMAGES WHATSOEVER ARISING IN CONNECTION WITH USE OF THE DATA OR INFORMATION BY CUSTOMER OR ITS USERS.
- Compliance with Applicable Law. Customer represents and warrants that Customer's use of the Services shall comply with any and all applicable laws, rules, and regulations of any governmental body, agency, or other competent authority.
Customer shall defend (or settle, if desired and authorized by Company) at Customer's expense any claim or suit against Company, its affiliates or their officers, directors, employees, contractors, agents or other representatives arising out of or relating to: (i) any assertion that the information, content, domain name or other materials or services provided or made available by or under the authority of Customer, or the use thereof as specifically authorized by Customer, infringe any copyright, trademark or other intellectual property rights of any third party, or are a misappropriation of any third party's trade secrets, or contain any libelous, defamatory, disparaging, pornographic or obscene materials; (ii) the use of the Services by Customer or its Users; (iii) any assertion that Customer has misused the Registration Data of Users who Company identifies as having stated a preference not to be contacted by Customer; or (iv) Customer's use of User information not in accordance with the terms and conditions of this Agreement; or (v) any assertion that Customer has not complied with the Children's Online Privacy Protection Act.
Customer shall indemnify and hold harmless Company against and from damages, costs and attorneys' fees, if any, incurred in defending and/or resolving such claim or suit, provided that: (i) Customer is promptly notified in writing of such claim or suit; and (ii) Company furnishes to Customer, on request, information available to Company for such defense.
- Waiver of Damages; Limited Liability.
CUSTOMER AGREES THAT NEITHER COMPANY NOR COMPANY'S AFFILIATES SHALL BE LIABLE OR OBLIGATED (EXCEPT AS SET FORTH HEREIN) UNDER THIS AGREEMENT OR UNDER PRINCIPLES OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY DAMAGES WHATSOEVER, INCLUDING INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF OR RELATING TO COMPANY'S SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Customer acknowledges that Pursuant to Section 512 of the Digital Millennium Copyright Act, Company has a policy providing for termination of account holders who are repeat offenders. However, CUSTOMER ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF COMPLIANCE OR REASONABLE ATTEMPTS TO: (i) COMPLY WITH UNITED STATES COPYRIGHT ACT; OR (ii) SATISFY REQUIREMENTS TO QUALIFY FOR THE SAFE HARBORS DESIGNATED IN SECTION 512 OF THE DIGITAL MILLENNIUM COPYRIGHT ACT.
IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY AND ALL MATTERS RELATING TO THIS AGREEMENT FOR ANY AGGREGATE AMOUNT IN EXCESS OF $500.00 U.S.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITIES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SOME USERS.
If Customer has chosen the virus scanner, please be advised that this virus scanner may not be able to detect or repair all viruses and variants, as new viruses and variants frequently appear. Please be aware that there is a risk involved whenever downloading email attachments to Customer’s and/or User’s computer or sending email attachments to others and that, as provided in the End-User Agreement, neither Everyone.net nor its licensors are responsible for any damages caused by Customer’s decision to do so.
- Relationship of Parties. The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement, and is solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith. Neither party nor its agents or employees are the representatives of the other party for any purpose, and neither party has the power or authority as agent, employee, or any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. The parties agree that the use of the term "Customer" herein is not intended to have any legal significance and is merely used as a matter of convenience.
- Notices. Notices under this Agreement shall be sufficient only if: (i) personally delivered; (ii) delivered by a major commercial rapid delivery courier service; (iii) mailed, postage or charges prepaid, by certified or registered mail, return receipt requested; (iv) successfully mailed electronically; or (v) successfully faxed or emailed to a party at its fax or email address last provided to the other party. If not received sooner, notice by mail shall be deemed received five (5) business days after deposit in the U.S. mails.
- Amendment. Company may modify this Agreement at any time, and such modifications shall be effective immediately upon posting or other notification to Customer. Customer's continued access or use of the Services shall be deemed its conclusive acceptance of the modified Agreement.
a) Prohibition Against Assignment. Neither this Agreement nor any rights, licenses or obligations hereunder, may be assigned by Customer, in whole or in part, without the prior written consent of Company. Any attempted assignment in violation of this section will be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the parties' successors and assigns.
b) Applicable Law; Attorneys' Fees. Unless expressly provided otherwise in a written agreement between Company and Customer: (i) this Agreement shall be governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles; (ii) in any action to enforce this Agreement, the prevailing party will be entitled to costs and attorneys' fees; and (iii) the sole jurisdiction and venue for any legal actions arising under this Agreement shall be in either the U.S. District Court for the Northern District of California or the Superior Court of California for Santa Clara County.
c) Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersede all prior discussions, documents, agreements and prior course of dealing.
d) Waiver. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
e)Severability. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision(s) shall be limited or eliminated to the minimum extent necessary so that the provision and this Agreement shall otherwise remain in full force and effect and enforceable.
f) Force Majeure. Company shall not be liable, nor in breach of this Agreement, by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, fires, earthquakes, power shortages, acts of God, or any other cause which is beyond the reasonable control of the parties.
g)Publicity. Customer acknowledges and agrees that during and after the term of this Agreement, Company shall have the right to use Customer's name, logo, URL, Web site screen captures, and description in Company's marketing, publicity, and promotional activities and materials, including, but not limited to, press releases, marketing collateral, and print, radio and television advertisements, without further consent or approval of Customer. The parties understand and agree, however, that nothing in this Agreement shall obligate Company to actually use Customer's name, statements or testimonials in connection with Company's marketing.
h)Third Party Beneficiaries. Company's third party licensors and information providers are intended beneficiaries of this Agreement.
i) Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
THE PERSON ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER.