Anti-Spam Filtering - Terms of Service

  1. Your Relationship with MarketAccess Communications Inc (“The Company”)
    1. Your use of the Company’s products, services and web sites (referred to collectively as the “Services” in this document) is subject to this agreement (the “Agreement”) between You and the Company.
    2. Unless otherwise agreed in writing with the Company, your agreement with the Company will always include as a minimum the terms and conditions set out in this Agreement (the “Terms”).
  2. Accepting the Terms
    1. In order to use the Services, you must first agree to the Terms. You may not use the Services if you do not accept the Terms.
    2. You can accept the Terms by:
      1. Clicking to accept or agree to the Terms, where this option is made available to you by the Company. (The date of agreeing to the terms becomes the Effective Date of this Agreement.); or
      2. Written or Verbal Acceptance of a Price Quote. To use the Services, you must indicate to the Company how many mailboxes (“Units”) you wish to route through the Services. The Company shall provide a price quote (the “Quote”) and your written or verbal acceptance of this Quote constitutes your Order and acceptance of the Terms of this Agreement. The date of the acceptance of your Order becomes the Effective Date of this Agreement.
    3. Fees and Billing
      1. The Billing Start Date for your use of the Services shall commence on the Effective Date of this Agreement.
      2. On or after the Billing Start Date, the Company shall charge you as follows, for each Service:
        1. Such one-time fees as are set forth in your Order.
        2. In advance, a fee equal to the monthly or annual charge (as may be applicable) for the Service.
        3. In arrears, a fee if the number of Units for which you actually routed mail through the Company’s system during the preceding calendar month that exceeds the number of Units purchased. Such fee shall be equal to the Annual Unit Price set forth in your Order, divided by twelve.
      3. All fees shall be due and payable within 30 days of the placing of your Order. Delinquent payments shall bear interest at one-and-one-half percent (1.5%) per month on the outstanding amount from the payment due date until paid in full. You will be responsible for all reasonable expenses (including legal fees) incurred by the Company in collecting unpaid or delinquent amounts, except where such unpaid or delinquent amounts are due to billing inaccuracies attributable to the Company. The Company reserves the right to suspend the Services (of which it shall provide advance notice, which may be by email) until you pay all past due amounts.
    4. Term The initial term (“Initial Term”) of this Agreement shall commence on the Effective Date and shall continue for the term specified in your Order, or for 12 months if no term is specified in your Order. You may renew this agreement by placing a new Order within 30 days of the expiration of the Initial Term.
    5. Termination Either party may terminate this Agreement for cause upon written notice if the other party fails to cure any material breach of this Agreement within thirty (30) days after receiving written notice of such breach or the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; provided however that the period to cure a breach with respect to payment shall be ten (10) days. Other than as may be provided elsewhere in this Agreement, such termination shall be your sole and exclusive remedy in case of a material breach of this Agreement by the Company.
    6. Your Obligations During the Term of this Agreement, you shall have the following obligations, in addition to those set forth elsewhere in this Agreement.
      1. You are and will remain solely responsible for complying with all laws, rules and regulations regarding the management and administration of your electronic messaging system. You acknowledge and agree that the Company’s responsibilities and liability do not extend to the internal management or administration of your electronic messaging system or messages and that the Company is merely a data-processor.
      2. You agree that you shall not resell the Services or create or offer derivative versions of the Services either directly or through a third party unless specifically authorized by the Company.
      3. The Services are for use with normal business messaging traffic only, and may not be used for any other purpose.
      4. You agree not to, and not to allow third parties or your end-users, to use the Services:
        1. to generate or facilitate unsolicited bulk commercial email;
        2. to violate, or encourage the violation of, the legal rights of others;
        3. for any unlawful, invasive, infringing, defamatory, or fraudulent purpose;
        4. to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
        5. to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users;
        6. to alter, disable, interfere with or circumvent any aspect of the Services;
        7. to test or reverse-engineer the Services in order to find limitations, vulnerabilities or evade filtering capabilities;
        8. to use the Services, or a component of the Services, in a manner not authorized by the Company

 

 

 

  1. Disclaimer THE COMPANY MAKES NO WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY OF THE SERVICES, ACCURACY OR NON-INFRINGEMENT. TO THE EXTENT ANY EXCLUSION OF IMPLIED WARRANTIES DOES NOT APPLY AS A MATTER OF LAW, THEN ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE EFFECTIVE DATE.
  2. Ownership The Services and all intellectual property rights relating to the Services are and shall remain the exclusive property of the Company, its licensors and/or its affiliates.
  3. Limitation of Liability IN NO EVENT WILL THE COMPANY BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR LOSS OF GOODWILL), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR OPERATION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF AGREEMENT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  4. IF PARAGRAPH 9 OF THIS AGREEMENT IS FOUND BY A COURT OF LAW TO HAVE NO FORCE OR EFFECT, THE COMPANY’S LIABILITY FOR ANY DAMAGES UNDER PARAGRAPH 9 SHALL NOT EXCEED THE AMOUNTS PAID HEREUNDER BY YOU TO THE COMPANY DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CAUSATION OF THE DAMAGES.
  5. Assignment Neither party may assign or transfer any part of this Agreement without the written consent of the other party, except to an affiliate, but only if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.
  6. Governing Law This Agreement is governed by the Laws of the Province of Ontario, Canada. FOR ANY DISPUTE RELATING TO THIS AGREEMENT, THE PARTIES CONSENT TO THE JURISDICTION OF, AND THE EXCLUSIVE VENUE OF THE COURTS IN OTTAWA, ONTARIO, CANADA.
  7. Severability If any provision is found unenforceable, it and any related provisions will be interpreted to best accomplish the unenforceable provision’s essential purpose.
  8. Waiver Failure to enforce any provision will not constitute a waiver.

 

 

 

  1. Force Majeure Neither party will be liable for inadequate performance to the extent caused by a circumstance beyond its reasonable control, including, without limitation, Domain Name Server issues outside its direct control, labor strikes or shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages.
  2. Archived Messages If the Services contain archiving functionality, your Messages shall be retained for up to the period set forth in the Order Form (in the Services name), provided that you renew the applicable Services with the Company for each year of such retention period. The retention period shall apply to all data archived under the Services. Failure to renew the applicable Services during the retention period shall terminate the Company’s obligation to retain any of your data or indexes. Following such an event, the Company shall, at your election, (i) delete your data (at no charge) or (ii) extend the period for you to access such data (at the Company’s then-current rates for such).
  3. Outbound Filtering If the Services contain outbound filtering functionality, you agree:
    1. The Company may, at its sole discretion, impose rate-limiting on your outbound messages and reject any messages that exceed the rate limit.
    2. THE COMPANY MAKES NO WARRANTIES AS TO THE AVAILABILITY OF OUTBOUND FILTERING NOR TO THE DELIVERABILITY OF MESSAGES YOU SEND THROUGH THE OUTBOUND FILTER. YOU AGREE TO HOLD THE COMPANY HARMLESS SHOULD ITS OUTBOUND FILTERS BE BLOCKED FROM DELIVERING YOUR MESSAGES.
    3. If you send outbound messages that cause the Company’s servers to be listed on a blacklist service, you agree to compensate the Company for all costs incurred to delist the Company’s servers.
    4. At its sole discretion, the Company may discontinue providing you with outbound filtering and refund you a prorated amount of the outbound filtering fees. This refund shall be your sole remedy should the company discontinue providing you outbound filtering.
  4. Entire Agreement This Agreement, the Order and all documents referenced expressly herein or therein are the parties’ entire agreement relating to its subject and supersede any prior or contemporaneous agreements relating to such subject.

 

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