Updated February 25, 2022
The following Terms of Service (collectively, the “Terms”) govern your access to and use of the AdaptiveMail platform, website and other services (collectively, the “Services”).
2.1 User Accounts
2.2 Account Holder Responsibilities
All account holders and users agree not to access or use the Website in any manner:
- That violates any applicable federal, state, local or international law or regulation, or advocates, promotes or assists in any unlawful act, constitutes an illegal threat or violates export control laws.
- To transmit or introduce offensive materials, including those involving profanity, violence, sexual conduct, pornography or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- To monitor or attempt to gain unauthorized access to: (a) an account or computer not belonging to you; (b) any data, information or communications on any network or system not owned by you, without authorization; (c) any system or network user accounts or passwords of other users, without authorization; or (d) e-mail addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, password robbery, spidering and harvesting).
- That is false, deceptive, misleading or fraudulent, including but not limited to: (a) any attempt to impersonate any person or entity, including any other user, AdaptiveMail or a AdaptiveMail employee; (b) to misrepresent your identity or affiliation with any person or organization; and (c) any attempt to give the impression that you are posting materials from any person or entity other than yourself if that is not the case, including but not limited to altering your IP source address.
- To monitor or copy materials on the Website for any unauthorized purpose or access the Website via any automatic device, process or means of access such as a robot or spider.
- That may have a detrimental effect on the Website or platform’s function, user interaction or security, including but not limited to: (a) gaining unauthorized access to, or attempting to compromise the security of, any network, system, computing facility, equipment, data or information; (b) attempting to intercept, redirect or otherwise interfere with communications intended for others; (c) disabling, damaging, overburdening or impairing the Website or any server, computer or database connected to or accessed by the Website; (d) modifying, blocking or otherwise interfering with the display of the Website; (e) interfering with another user’s ability to access, use and enjoy the Website; (f) accessing another user’s registration information or user account without that user’s express written permission; (g) transmitting or introducing any malicious or technologically harmful element to the Website such as a spyware program, virus, Trojan horse, worm or logic bomb; (h) performing, without AdaptiveMail’s express prior written authorization, scalability testing, load testing, probing, scanning, penetration or vulnerability testing of the Website, including without limitation the Community Services; and (i) engaging in any activities that results in any server being the target of a denial of service attack.
2.3 Notification of Violation
2.4 AdaptiveMail Disclaimer
We may, but are under no obligation to, monitor or content provided by users. We are not responsible for the accuracy, completeness, appropriateness or legality of any customer content or data that is stored in either the customer’s enterprise cloud or provided by the customer to the AdaptiveMail cloud.
3.0 RESPONSIBILITIES AND RESTRICTIONS
3.1 Intellectual Property
The Website in its entirety and the AdaptiveMail Platform Content is owned by AdaptiveMail and is protected by United States and international laws regarding copyrights, patents, trademarks, trade secrets and other intellectual property or proprietary rights. You are permitted to use the Website and platform only for legitimate business purposes as agreed upon in these terms and/or the Customer Agreement.
3.2 Provision of Services
AdaptiveMail will provide to Customer the Services pursuant to the relevant Customer Agreement during the applicable Term. Services will be provided pursuant to this Agreement and the specifications set forth in the applicable Customer Agreement, and substantially in accordance with the specifications set forth in the SLA.
3.3 Customer Responsibilities
Customer is responsible for all activity that occurs under Customer’s accounts by or on behalf of Customer. Customer agrees to(a) be solely responsible for all User activity, which must be in accordance with this Agreement and the Documentation, (b) be solely responsible for Customer Data (other than with respect to the AdaptiveMail obligations set forth in the Agreement) (c) obtain and maintain during the Term all necessary consents, agreements and approvals from individuals or any other third parties for all actual or intended uses of information, data or other content Customer will use in connection with the Services, (d) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify AdaptiveMail promptly of any known unauthorized access or use, and (e) use the Services only in accordance with applicable laws and regulations.
Customer will not (a) use, or permit the use of, the Services except as expressly authorized under this Agreement or the Documentation, (b) interfere with or disrupt the integrity or performance of the AdaptiveMail Platform or content contained therein, or (c) disrupt, disable, translate, decompile, or reverse engineer the Services, or (d) take any other action with respect to the Services not expressly permitted under this Agreement or the Documentation.
3.5 Third Party Content
Third-party materials and free and open source software (“FOSS”) provided by us to you may be accompanied by licensing terms, in which case such licensing terms shall govern your use of that third-party software or FOSS. Mention of third parties and third-party products in any materials provided to you is for informational purposes only and constitutes neither an endorsement nor a recommendation. All third-party product specifications and descriptions are supplied by the respective vendor or supplier, and AdaptiveMail shall have no responsibility with regard to the selection, performance or use of such vendors or products. To the extent you access or use such software, all understandings, agreements or warranties, if any, shall be directly between the vendor and you.
No right, title or interest in or to AdaptiveMail Website and platform is transferred to you.
4.0 FEES AND PAYMENT
All fees associated with the use of the AdaptiveMail platform and services will be paid through the Microsoft marketplace.
Except as otherwise specified herein or in a Customer Agreement, (a) Fees will be quoted and paid in United States dollars and (b) payment obligations are non-cancelable and Fees paid are nonrefundable.
4.3 Overdue Fees
If any Fees are not received from Customer by the due date, then at AdaptiveMail’s discretion, such Fees may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4 Suspension of Services
Except with respect to any Fees disputed in good faith by Customer, if any Fees for the AdaptiveMail Platform or Professional Services are sixty (60) or more days overdue, AdaptiveMail may, without limiting AdaptiveMail’s other rights and remedies, suspend Professional Services and Customer’s use of the AdaptiveMail Platform until such amounts are paid in full.
The Fees are exclusive of all taxes, levies, duties or similar governmental assessments of any nature (collectively, “Taxes“). Customer is responsible for paying all Taxes associated with Customer purchases hereunder except for those based on AdaptiveMail’s net income, property, or employee withholdings. Taxes shall not be deducted from the payments to AdaptiveMail, except as required by law, in which case the amount payable shall be increased as necessary, so that after making all required deductions and withholdings, AdaptiveMail receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made.
4.6 Audit Rights
AdaptiveMail shall have the right to audit Customer’s compliance with this Agreement at any time during the Term. Customer shall cooperate following any reasonable request by AdaptiveMail in connection with such audit.
5.0 PROPRIETARY RIGHTS
5.1 AdaptiveMail Ownership
Subject to any rights expressly granted to Customer in the Agreement, AdaptiveMail and its licensors, as applicable, reserve all right, title and interest in and to the Services, including information presented in any form and intellectual property rights (“AdaptiveMail Intellectual Property”).
5.2 Customer Ownership and Licenses
As between AdaptiveMail and Customer, Customer owns all rights, title and interest in and to (a) all Customer Data and (b) any information supplied by Customer to AdaptiveMail as may be specified in any Customer Agreement (collectively, “Customer Materials”). Customer grants AdaptiveMail a non-exclusive, non-transferable, royalty free, non-sublicenseable (except as needed for the provision of Services or as set forth herein) worldwide right to access and use Customer Materials solely to provide the Services to Customer at Customer’s request. No other rights or implied licenses in Customer Materials are granted to AdaptiveMail other than as expressly set forth herein.
5.3 Feedback and Derivative Works
Customer is not required to provide (a) any suggestions, enhancement requests, recommendations or other feedback (“Feedback”) or (b) any ideas, technology, developments, derivative works or other intellectual property (“Derivative Works”) related to the Services or any test features, services or products to which Customer is given access. If Customer does so, Customer grants AdaptiveMail a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use, or incorporate into any of its services, any Feedback or Derivative Works.
Customer may only create Derivative Works relating to the Services or any test features, services or products to which Customer is given access, with prior written consent from AdaptiveMail.
6.1 Definition of Confidential Information
As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Discloser“) to the other Party (“Recipient“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
Customer Confidential Information will include, but is not limited to, Customer Data whether stored in the customer’s cloud or the Adaptivemail cloud. AdaptiveMail’s Confidential Information includes, but is not limited to, the AdaptiveMail Platform, information or technology used in connection with the Services, this Agreement and all Customer Agreements. Confidential Information of each Discloser includes Discloser’s non-public business and marketing plans, technology and technical information, product plans and designs, and business processes. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to Discloser, (b) was known to Recipient prior to its disclosure by Discloser without breach of any obligation owed to Discloser, (c) is received from a third party without any obligation of confidentiality, or (d) was independently developed by Recipient without reference to or use of Discloser’s Confidential Information.
6.2 Protection of Confidential Information
Except as otherwise permitted in writing by Discloser, Recipient will (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) and use Discloser’s Confidential Information only for purposes of this Agreement, and (b) Recipient will limit access to Confidential Information of Discloser to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have agreed to confidentiality obligations with Recipient that are no less stringent than those herein. In addition to the foregoing, Recipient may disclose Confidential Information in any due diligence of Recipient in connection with any corporate transaction, provided that such disclosure is made under a binding obligation of confidentiality with terms similar to those herein.
6.3 Protection of Customer Data
Without limiting the above, AdaptiveMail will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data. Except (a) in order to provide the Services, (b) to prevent or address service or technical problems in connection with support matters, or (c) as expressly permitted in writing by Customer, AdaptiveMail will not modify Customer Data or disclose Customer Data (unless compelled by law in accordance with Section 6.4 (Compelled Disclosure).
6.4 Compelled Disclosure
Recipient may disclose Confidential Information of Discloser to the extent required or compelled by law to do so, provided Recipient gives Discloser prior notice of such compelled disclosure (unless notice is prohibited by law) and reasonable assistance, at Discloser’s cost, if Discloser wishes to contest the disclosure. If Recipient is compelled by law to disclose Discloser’s Confidential Information as part of a civil proceeding, and Discloser is not contesting the disclosure, Discloser will reimburse Recipient for its reasonable cost of compiling and providing secure access to such Confidential Information.
7.0 WARRANTIES AND DISCLAIMERS
7.1 Mutual Warranties
Each Party represents and warrants that (a) it has the legal power to enter into this Agreement, (b) it will use commercially reasonable efforts through the use of anti-virus protection not to transmit to the other Party any Disabling Code, and (c) it will comply with all applicable laws with respect to its rights and obligations pursuant to this Agreement.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, ADAPTIVEMAIL MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.1 Indemnification by Customer
Customer will defend, indemnify and hold harmless AdaptiveMail against any Claim made or brought against AdaptiveMail by a third party (a) relating to or arising from Customer’s use of the Services in violation of this Agreement, or (b) relating to or arising from AdaptiveMail’s permitted use of Customer Data, Customer Materials, or Customer’s breach of any AdaptiveMail Terms of Service or any other terms and conditions of a third party agreed to by Customer in connection with, or relating to, the Services; provided that AdaptiveMail (i) promptly gives Customer written notice of the Claim; (ii) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim without AdaptiveMail’s written approval, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases AdaptiveMail of all liability); and (iii) provides to Customer all reasonable assistance, at Customer’s expense.
8.2 Exclusive Remedy
This Section 8 (Indemnification) states the indemnifying Party’s sole liability to, and the indemnified Party’s exclusive remedy against, the other Party for any type of Claim described in this Section.
9.0 LIMITATION OF LIABILITY
9.1 Limitation of Liability
EXCEPT FOR (A) DAMAGES ARISING FROM A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS OR (B) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.
9.2 Exclusion of Consequential and Related Damages.
IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING WILL NOT APPLY (A) TO A VIOLATION OF CONFIDENTIALITY OBLIGATIONS OR (B) TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.0 TERM AND TERMINATION
10.1 Term of Agreement
This Agreement commences on the Effective Date and will remain in effect until the earlier of (a) the expiration or termination of all Customer Agreements under this Agreement or (b) the termination of this Agreement in accordance with this Section. Upon termination of this Agreement for any reason, all rights and subscriptions granted to Customer including all Customer Agreements will immediately terminate and Customer will cease using the Services. For avoidance of doubt, upon termination of any Customer Agreement, the Services provided pursuant to such Customer Agreement shall cease and Customer shall stop using such Services.
10.2 Automatic Renewal
Subscriptions for the AdaptiveMail Platform commence on the Order Date specified in the applicable Customer Agreement and continue for the subscription Term specified therein, unless otherwise terminated. Except as otherwise specified herein or in the applicable Customer Agreement, all subscriptions will automatically renew for additional periods of one year (each a “Renewal Term”) at the list price in effect at the time of renewal unless either Party gives the other Party written notice of non-renewal at least 60 days prior to the end of the applicable Term or Renewal Term.
10.3 Termination for Cause
A Party may terminate this Agreement or any applicable Customer Agreement for cause: (a) upon 30 days’ written notice to the other Party of a material breach (including details sufficient to identify the material breach) if such breach remains uncured at the expiration of such period, (b) immediately for material violations of confidentiality obligations, or (c) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Any provision of this Agreement that expressly or by implication is intended to survive termination, regardless of the date, cause or manner of such termination, and including but not limited to rights of action accruing prior to termination and payment obligations, will survive such termination and will continue in full force and effect.
10.5 Refund or Payment upon Termination
Upon any termination for cause by Customer, AdaptiveMail will refund Customer a pro-rata portion of any prepaid AdaptiveMail Platform Fees that cover the remainder of the Term starting the first day of the calendar month following the effective date of termination and a pro-rata portion of any prepaid Professional Services Fees that cover Professional Services that have not been delivered starting the first day of the calendar month following the effective date of termination. Upon any termination for cause by AdaptiveMail, Customer will pay any unpaid Fees covering the remainder of the Term of all subscriptions under the applicable Customer Agreements after the effective date of termination and for any Professional Services provided up to the date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to AdaptiveMail for the period prior to the effective date of termination.
10.6 Downloading of Customer Data
During any Term under an Customer Agreement and for the period 30 days after termination or expiration of the Agreement or the applicable Customer Agreement, Customer may download Customer Data stored in the AdaptiveMail cloud used in connection with such Customer Agreement using the tools of the AdaptiveMail Platform. After expiration of the 30-day period, AdaptiveMail will have no obligation to maintain or make available the applicable Customer Data and will thereafter, unless legally prohibited, delete or make permanently unreadable all Customer Data in AdaptiveMail systems or otherwise in AdaptiveMail’s possession.
11.0 DISPUTE RESOLUTION, GOVERNING LAW & NOTICES
11.1 Dispute Resolution, Governing Law
The Parties will use reasonable efforts to resolve any dispute between them in good faith prior to initiating legal action. Any claim or cause of action under or relating to this Agreement will be brought in the state or federal courts located in King County, Washington and the Parties agree to submit to the exclusive personal jurisdiction of such courts. This Agreement will be governed by the laws of the State of Washington, excluding choice of law principles.
11.2 Manner of Giving Notice
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given upon: (a) delivery by traceable courier, (b) upon delivery via mailing (confirmed receipt signature/return receipt requested), (c) the second business day after sending by confirmed facsimile, or (d) the second business day after sending via email. Notices to AdaptiveMail will be addressed to the CEO at 3532 217th PL SE , Bothell, Washington 98021 or in the case of Customer, sent to the address and contact set forth on the Customer Agreement, or as designated from time to time in writing by the Parties. Billing-related notices will be addressed to the relevant billing contact designated by Customer on the Customer Agreement.
11.3 Waiver of Jury Trial
Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12.0 GENERAL PROVISIONS
12.1 No Dependence on Future Functionality
Customer agrees that Customer is not entering into this Agreement or any Customer Agreement contingent on the provision of any future functionality relating in any way to the Services unless expressly provided in any Customer Agreement and no statement or other information made or provided orally or otherwise shall be binding unless specifically set forth in an Customer Agreement.
12.2 Export Compliance
Each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports or otherwise restricted from doing business with any U.S. company, and Customer will not access or use the Services in violation of any U.S. or international export embargo, prohibition or restriction.
12.3 Force Majeure
Neither Party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the failing Party’s reasonable control, including without limitation acts of God, civil commotion, strikes, terrorism, failure of third-party networks or services or the public Internet, power outages, labor disputes or governmental demands or restrictions.
12.4 Relationship of the Parties
The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
12.5 No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement, unless expressly stated otherwise.
12.6 Waiver and Cumulative Remedies
No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld or delayed). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Customer Agreements), without consent of the other Party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.