These Terms of Service (“TOS”) apply to and shall be incorporated by reference into each Email Professor agreement with Dundee Internet Services, Inc., dba Email Professors (Hereinafter, “Eps”) and the customer who is named in such contract(s) (Hereinafter, “Customer”). All references in this document stated as “TOS” shall be considered EPs’s Standard Terms (of Service) and Conditions of Use.
Between the Customer and Eps
- EPs will provide the Customer access to its hosted product(s) and/or other services on a subscription basis as described in their applicable Contract (Hereinafter Service Contract), with the understanding that their Service may be modified, upgraded, or enhanced from time to time. (Hereinafter “Services”) The Customer is solely responsible for their website content, email messages, or other materials they produce and may provide to Eps, to use in conjunction with their Email Professor’s agreement.
- The Customer, at their sole discretion, may decide to obtain other software vendors/products/support/development, from one or more third parties, for use in conjunction with their EPs Services. The Customer acknowledges and agrees that EPS shall have no responsibility for such third-party involvement or their delivery.
- Initial consultative services involving an EPs employee, such as configuration assistance and one-on-one training, is available to the customer at no charge..
Billing and Payment
- Any written cost estimate or proposal provided to the Customer prior to the execution of the actual Service Contract reflects EPs then-current understanding of the Customer’s project requirements based on information disclosed by the Customer. If EPs determines that time or materials will be in excess of those quoted in writing to the Customer (By email, postal mail, fax or text), additional charges must be authorized by the Customer in writing (By email, postal mail, fax or text), prior to EPs performance or use.
- The customer is invoiced for the fees for Services (the “Fees”) in accordance with the prices set forth in the applicable Service Contract. Unless otherwise stated, all set-up and one-time Fees are due on or after the Effective Date, the date of the signed Service Contract, Minimum Monthly Fees are invoiced on or after the Effective Date of the signed Service Contract regardless of whether the Customer uses the Services as of that date.
- All invoices, not subject to a good faith dispute, are due upon receipt and shall be paid via credit card or check as specified in the applicable Service Contract. To the extent that Customer has a good faith dispute regarding any invoice, Customer shall, within ninety (90) days after the invoice date, provide EPS with written notice of such dispute as well as reasonable supporting documentation (a “Notice of Dispute”). The parties shall promptly work together to resolve such dispute. If the Customer does not provide a Notice of Dispute within a ninety (90) day period, then Customer’s right to dispute such invoice shall be deemed waived. EPs reserves the right to accrue interest on undisputed amounts not received within thirty (30) days after the invoice date, at a rate the lesser of: (i) two percent (2%) per month, or (ii) the maximum rate permitted under applicable law, from the date due until paid in full. If EPs has not received any payment (and/or Notice of Dispute) within said thirty (30) day period, then EPs, at their discretion, may suspend the Customer’s access to the applicable Service(s) and/or hosted data within five (5) business days prior to notifying Customer of their past due amount. Any suspension of Services will not relieve the Customer of their obligation to pay all amounts due.
- The Fees set forth in each Service Contract are exclusive of any applicable sales, use, excise, and similar taxes. EPs will bill, and the Customer will pay, the amount of any such taxes assessed on the performance of any Services, excluding any tax related to the income of EPs. The Customer agrees to reimburse EPS for any tax, as well as any interest and penalties levied against EPs for the delivery of Services to the Customer.
- Customer shall retain all their rights, title, and interest in and to any software, hardware, data, tools, techniques, or other materials that the Customer provides to EPS in connection with the Services.
- EPs will retain all rights, title, and interest in and to any software, hardware, data, tools, techniques, or other materials that it uses or develops in connection with its provision of the Services, subject to the Customer’s rights to the Customer Materials and Customer’s Confidential Information. The Services and all of their elements shall remain the property of EPs, or where applicable, Eps’ supplier. Customer shall have no right, title or interest therein except as specified above. All repairs, modifications, upgrades, and enhancements, including, without limitation any Customer suggestions for new features or functionality of the Services, are the property of EPs.
- EPs grants the Customer non-exclusive rights to use Services with the terms and conditions set forth in this agreement only. EPs and the Customer agree there is nothing in any agreement that shall prevent EPs from using the expertise, ideas, and know-how learned while performing the Services for any purpose, including providing similar services to third parties, provided that EPs does not violate its obligation of confidentiality to the Customer.
- The Customer shall own all the rights, title, and interest in and to any data that EPs collects and stores on behalf of the Customer while providing Services (the “Data”). The Data shall be deemed Customer’s Confidential Information (defined below). Customer grants EPs a non-exclusive, nontransferable right to (a) capture and maintain their Data in connection with EPs provision of Services to Customer and enforcement of its rights as described in the applicable Service Contract.
- EPs and Customer trademarks, trade names, service marks, and logos, whether or not registered (“Marks”) shall be the sole and exclusive property of the respective owning party, which shall own all rights, title and interest therein. Each party may further: (i) use the other party’s name and/or logo within product literature, press release(s), social media, and other marketing materials; quote the other party’s statements in one or more press releases; and/or (iii) make such other use of the other party’s name and/or logo as may be agreed between the parties. Additionally, EPs may include the Customer’s name and/or logo within its list of customers for general promotional purposes. Each party shall comply with the other party’s trademark use guidelines as such are communicated to the using party in writing and each shall use the other party’s Marks in a manner which is consistent with industry practice. Neither party grants to the other any title, interest or other rights in any Marks.
- If when Customer wishes anonymity, they must notify [email protected]emailprofessors.com, call, text, or use postal mail to inform EPs of their request.
- Customer agrees to abide by all laws, rules, and regulations that are applicable to its use of the Services. The customer has and will maintain all rights as shall be required to allow EPs to provide the Services to Customer as set forth in the applicable Service Contract, including without limitation from advertisers, and to permit EPS to collect and store the Data pursuant to the applicable Service Contract. The customer is responsible for the Customer Content.
- EPs shall use reasonable efforts to make the Services secure. EPS shall not make Customer’s passwords available to anyone who is not an authorized agent or employee of Eps.
“EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION 5, CUSTOMER’S USE OF SERVICES IS AT SOLE RISK OF THE CUSTOMER, ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT GUARANTEE OR WARRANTY OF ANY KIND. EPs SHALL USE REASONABLE EFFORTS TO MAINTAIN PERFORMANCE OF HOSTED SERVICES; HOWEVER, EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, EPs MAKES NO WARRANTY AND SPECIFICALLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES EITHER EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A SPECIFIC PURPOSE. EPs DOES NOT WARRANT THAT THE SERVICES (OR ANY OF THEM) WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. EPs DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE HOSTED SITE AND/OR OTHER PORTIONS OF THE INTERNET.”
- If Services do not conform to a warranty set forth in the above DISCLAIMER, then EPs sole obligations (and the Customer’s sole remedies) shall be to (i) re-perform the Services in conformance with the warranty without charge to Customer; or (ii) refund the Fees paid by Customer for the nonconforming Services. EPs shall provide (i) or (ii) within sixty (60) days following Customer’s written notice to Dundee.net that the Services do not conform to such warranty.
LIMITATION OF LIABILITY
“IN NO EVENT SHALL EITHER PARTY BE ACCOUNTABLE TO THE OTHER OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR ASSOCIATED DAMAGES; INCLUDING WITHOUT RESTRICTION, LOST PROFITS, MISSING DATA (OR ITS USE). HOWEVER, CAUSED AND BASED ON ANY THEORY OF LIABILITY, ARISING OUT OF OR RELATING TO SERVICES, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED, OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR: (A) EITHER PARTY’S OBLIGATION TO INDEMNIFY THE OTHER AS PROVIDED IN SECTION BELOW, CUSTOMER’S OBLIGATION TO PAY AMOUNTS DUE AND OWING UNDER A SERVICE CONTRACT; AND/OR (B) A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT; EACH PARTY’S LIABILITY SHALL BE LIMITED TO THE AMOUNT PAID (OR OWING) BY CUSTOMER UNDER THE APPLICABLE SERVICE CONTRACT FOR SERVICES PROVIDED IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM”
- EPs agrees to defend, protect, and hold Customer and its officers, directors, employees, and agents harmless from and against all damages, costs, liabilities, expenses. This includes without limitation reasonable attorney’s fees and settlement amounts incurred in connection with any suit, claim, or action by any third party (a “Claim”). In addition, that the technology used by EPs or any of the EPs Materials, when used within the scope of managed email services, infringes any patent enforceable in the United States. Or infringes on copyright, trademark, or service mark of a third party and/or arising from or relating to EPs gross negligence or willful misconduct.
- The Customer agrees to defend, indemnify, and hold EPs and its officers, directors, employees, and agents harmless from and against any and all damages, costs, liabilities, expenses. This includes without limitation reasonable attorney’s fees and settlement amounts incurred in connection with any suit, claim or action arising from or relating to the Customer’s breach of any of its obligations set forth in Section 4. OR Customer’s gross negligence or willful misconduct.
- Each indemnifying party’s responsibilities as set forth in this Section 7 are subject to the other party: to give the indemnifying party prompt written notice of any such Claim. Or giving the indemnifying party sole control over the defense and settlement of any such Claim AND providing full assistance for the defense of any such Claim, at the indemnifying party’s cost.
Term & Termination
- Unless agreed prior to the start of service, early termination of Services occurs (Section 8.2), the term of each Service Contract shall begin on the Effective Date (as define within the Service Contract) and continue for the period specified: Unless the applicable Hosting Contract otherwise provides, the Service Contract shall automatically renew for successive and consecutive 12 month periods (each a “Renewal Term”), unless either party provides written notice of nonrenewal no fewer than ninety (90) days prior to the expiration of the then-current Minimum Term or Renewal Term.
- Either party may terminate the Service Contract for the other party’s breach of a material obligation by providing at least a thirty (30) day prior written notice of the breach as provided in Section 9 below. However, if the breaching party cures the breach within the thirty-day notice period, the Service Contract shall not terminate. If Customer’s use of the Services is in violation of any terms of the Service Contract or adversely impacts EPs ability to provide services to other customers, Dundee.net may; (i) Immediately suspend the Customer’s use of the Services and provide written notice of the suspension to the Customer; and/or (ii) terminate the applicable Services upon written notice to the Customer, reasonably describing the violation; such termination to be effective if the violation is not cured within three (3) days of the date the notice is delivered to the Customer. However, this timeframe may change due to the nature of the violation. In the event of termination by EPs, the Customer shall pay to EPs all amounts due and owing under applicable Services as of the termination date (including any fees relating to the unexpired portion of the Minimum Term or then-current Renewal Term).
- Any notice of the Customer’s election to terminate Services must be sent via email to EPs customer service cancellation address: [email protected]
- Upon termination, each party shall immediately return to the other, all Confidential Information in its possession, subject to any remaining rights in such property that may exist under applicable Services Contract. EPs reserves the right to hold and prevent the copying and/or export of the Customer Data until all undisputed amounts owing by the Customer under the applicable Service Contract are paid in full. If EPs exercises its right to discontinue or disable Services as provided in a Services Contract and, within six (6) months thereafter, Customer has not paid Eps all undisputed amounts owing, EPs shall then have the right to delete such Data.
Except for Customer’s notice of termination of any Services (Section 8 above which shall be via email to [email protected]), notices to and by all parties shall be sent via: (i) personal delivery; (ii) certified mail, return receipt requested; (iii) recognized overnight courier with a printed confirmation of receipt; (iv) facsimile at the fax number noticed on the cover page of the applicable Service Contract (or such other fax number as a party may designate by written notice delivered in accordance with this provision); or (v) email at the address indicated on the cover page of the applicable Service Contract (or to such other address as a party may specify by written notice sent in accordance with this provision).
“Confidential Information” shall mean any non-public information of the other party that is designated as confidential, or that the receiving party knew or reasonably should have known was confidential. The terms and conditions of each Service Contract shall be considered Eps and the Customer Confidential Information.
Confidential Information shall not include any information which a party can demonstrate (i) was rightfully in its possession prior to the date of disclosure to it by the other party; (ii) at the time of disclosure or later, is published or becomes part of the public domain through no act or failure to act on the part of a party; (iii) a party has developed independently without reference to any Confidential Information of the other party; or (iv) came into such party’s possession from a third-party who had a bona fide right to make such information available.
The party receiving Confidential Information will not at any time release to any person (or use it) except as expressly permitted in the appropriate Service Contract. Each party shall limit disclosure of Confidential Information to its employees or agents who have a need to know related to the parties’ business relationship. A receiving party may disclose Confidential Information of the other party as required by court order or other compulsory legal processes, provided that the receiving party first notify the other party of the obligated disclosure as soon as reasonably practicable: an advance of the compelled disclosure.
Upon termination of a Service Contract, the recipient of Confidential Information shall promptly deliver to the other party or destroy any and all such information in its possession or under its control, and any copies made except by prior written authorization. The recipient of Confidential Information may retain, subject to these Terms, a copy of the Confidential Information as required for compliance with its internal recordkeeping requirements and shall not be deemed to have violated its obligations with respect to returning or destroying Confidential Information to the extent such Confidential Information is located on electronic back-up in accordance with such recipient’s normal procedures for backing-up data and where such back-up is not accessible to such recipient’s employees or officers other than those employees and officers whose duties relate to information technology support for the recipient.
- Each Service Contract is governed in all respects by the laws of the State of Michigan. The exclusive jurisdiction and venue for all disputes arising out of or relating to any Service Contract shall be the state and federal courts located in Monroe County, Michigan. The prevailing party in any such dispute shall be entitled to attorneys’ fees and its litigation or related expenses in any suit or proceeding with respect to the subject matter of a Service Contract, arising from, or related to it, or to interpret or enforce the Service Contract. In the event the Customer is outside of the United States, where the Agreement is in conflict with local law, the Agreement will be governed by local law.
- EPs relationship with Customer is that of an independent contractor, and nothing is construed, to create a partnership, agency, joint venture or employment relationship.
- All notices permitted or required under a Service Contract shall be in writing and shall be by personal delivery, facsimile transmission, electronic mail, overnight courier, or US mail, and deemed received upon personal delivery, acknowledgment of receipt of facsimile transmission, when sent upon email transmission, the promised delivery date after deposit with overnight courier, or five (5) days after deposit in the US mail. Notices shall be sent to the person who has signed the Service Contractor to any other person or address as either party may specify in writing. Each party shall deem a document faxed to it as an original document.
- If any provision of these Terms or any Service is unenforceable or illegal under any applicable law or is so held by applicable court decision, such unenforceability or invalidity shall not render the Service Contract unenforceable or invalid as a whole. In such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or court decisions. Provisions that should reasonably be considered to survive termination of a Service Contract shall survive.
- Neither party shall be accountable under the Service Contract because of any failure or delay in the performance of its obligations (except for the payment of money) because of any cause beyond the reasonable control of such party.
- Neither party may assign, voluntarily, by operation of law or otherwise, any rights or obligations under the Service Contract without the other party’s prior written consent.
Entire Agreement; Modification
Each Service Schedule completely and exclusively states the agreement of the parties regarding its subject matter. Each Service Schedule supersedes, and its terms govern, all prior proposals, agreements, or other communications between the parties, oral or written, regarding its subject matter. Neither these Terms nor any Service Schedule shall be modified except by a subsequently dated written amendment signed on behalf of each party by its duly authorized representatives, and any provision on a purchase order purporting to supplement or vary the provisions of a Service Schedule shall be void. Any handwritten modification to a Service Schedule shall be void unless the person signing said Service Schedule on behalf of EPS initials such handwritten modification