This EMAIL SERVICE AGREEMENT ("Agreement") is made by and between SearchFit eCommerce Solutions Pvt. Ltd., an India Corporation ("SESPL") and you and your heirs, agents, successors and assigns (collectively, "Customer"), and is made effective as of the date of electronic acceptance. This agreement sets forth the terms and conditions of your use of SESPL’s Email Services ("Email Services").
The terms "we", "us", or "our" shall refer to SESPL. The terms "you", "your", "user", or "customer" shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
1. Description of Email Services
SESPL’s Email Services provide the ability to send, receive, store, and retrieve electronic mail via the internet using an email address or multiple email addresses linked to your domain name. In order to use the Email Services, you must have a registered domain name with SESPL or another domain name registrar and properly configured domain name records.
The Email Services generally allow you to:
a. Configure multiple POP3, IMAP, and/or web-based email accounts for use in connection with a registered domain name;
b. Manage email accounts via the Plesk Control Panel including creation, deletion, and password configuration;
c. Configure email accounts to work with email clients such as Microsoft Outlook to mobile email clients such as iPhone®, iPad®, BlackBerry®, and Android®
The Email Services include both paid and free services. You acknowledge that the free Email Services may have reduced functionality or capability. You may upgrade to the paid Email Services at any time.
2. Provision and Configuration of the Email Services
Once the Email Services are purchased on a SESPL website or by telephone ("Site"), an email hosting account will be created by SESPL on the Plesk hosting platform. You will receive login credentials unique to Plesk sent to the primary email address set up in your SESPL user account. You must ensure the primary email address is correctly functioning and accessible by you. SESPL is not responsible and assumes no liability for your failure to receive an email notification if such failure results from inaccurate or out-dated account information.
Once you receive access to your Plesk hosting account, you may setup and configure the Email Services.
3. Availability of the Email Services
Subject to the terms and conditions of this Agreement and each of SESPL’s policies and procedures, SESPL shall use commercially reasonable efforts to provide the Email Services on a twenty-four (24) hours a day, seven (7) day per week basis throughout the term of this Agreement. You acknowledge that from time to time, the Email Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunction, (ii) periodic maintenance or update procedures, or (iii) causes beyond the reasonable control of SESPL including, but not limited to, Denial of Service attacks, or black-listing caused by attempts at sending SPAM.
You acknowledge that each Email Services plan has limits ("Plan Limits") that you agree to adhere to. Failure to adhere to the Plan Limits may result in immediate suspension or termination of the Email Services without further notice. SESPL reserves the right to suspend or terminate the Email Services at any time for failure to adhere to the Plan Limits or terms of this Agreement.
The Email Services are compatible with third-party software clients such as Microsoft Outlook or mobile clients such as iPhone®, iPad®, BlackBerry®, and Android®
SESPL makes no representations or warranties about any third-party software, and disclaims any liability or responsibility regarding their use in connection with our Email Services.
5. Spam and Virus Protection
SESPL’s Email Services include spam and virus protection scanning services for both incoming and outgoing email messages and attachments. All email sent to or from your email addresses will automatically be scanned to assist in preventing spam and/or viruses from being transmitted to or from your email accounts, email clients, and/or computer systems. You are able to disable this protection from within your control panel but it is not recommended and you acknowledge that SESPL is not responsible for any adverse effects caused by the disablement of this feature. You acknowledge and agree that our spam and virus protection scanning services are not guaranteed to be 100% effective or error-free. As such, the scanning services may delete email messages or prohibit the transmission to or from your email accounts that you otherwise wish to send or receive. It may also allow the transmission of spam or viruses to or from your email accounts, email clients, and/or computer systems. You acknowledge and agree that SESPL shall assume no liability to you or any third party with respect to our spam and virus scanning services, your failure to send and/or receive email messages and/or attachments, or the transmission of spam and/or viruses to or from your email accounts, email clients, and/or computer systems.
6. Backup, Storage and Data Retention
SESPL’s Email Services are not an archive or backup service. You are solely responsible for maintaining independent backups of your email messages at all times. You acknowledge and agree that SESPL shall assume no liability to you or any third party for any loss, damage, or destruction of your email messages, distribution lists, or other content stored in connection with the Email Services.
7. Plan Limits
You acknowledge that the Email Services may be offered with different plan limits. The plan limits will be presented on the Site, and may relate to, including but not limited to: (i) the amount of mail to be sent or received; (ii) the size of the mail to be sent or received; (iv) the size of mailboxes configured; (v) the number of mailboxes configured; (vi) the number of domain names to be used for the Email Services; and, (iii) the number of contacts allowed per address or distribution list.
Additionally, you acknowledge that each Email Services plan has pre-defined controls and restrictions that control the maximum amount of email messages you can send and receive and how that mail is sent. These controls and restrictions are put in place to maintain the integrity and performance of the Email Services.
The following maximum controls and restrictions are in place. Specific settings can be found on the Email Services page at all times on the Site. SESPL reserves the right to modify these controls from time to time as it feels is necessary to maintain the integrity and performance of the Email Services.
Incoming Message Limitations
There are (2) types of incoming message limitations:
1. Maximum 20MB message size. Incoming message over 20MB will be bounced.
2. The amount of disk space allocated to each mailbox. If your mailbox fills up, incoming messages will be bounced. It is your responsibility to review and understand your user and account settings for limiting total disk usage and warning message notifications to prevent this from occurring.
Outgoing Message Limitations
In order to prevent SPAM and the abuse of the SMTP outgoing mail service, the following outgoing message limitations are in place:
1. SMTP Relay quotas per-mailbox. 100 recipients per hour; 500 recipients per day
When you exceed this threshold, you will be denied the ability to send email until the following hour OR day, depending on which threshold you have exceeded. You will receive a connection error message when attempting to send that will say "Daily delivery limit exceeded" or "Hourly delivery limit exceeded".
2. SMTP Relay quotas per-domain. 5,000 emails per week.
When you exceed this threshold, all email messages sent from any email account configured with the Email Services will be denied the ability to send email until the following week. If the threshold is exceeded, users attempting to send email will receive a connection error stating "Weekly delivery limit exceeded".
3. SMTP Relays though the use of web forms. 100 recipients per hour; 1,500 per day.
If a domain name using any web-based forms exceeds either of these thresholds, additional messages sent will simply be discarded until the following hour OR day, depending on the threshold exceeded. The Plesk administrator for the Email Services will receive a courtesy email notifying them that the threshold has been exceeded.
8. SPAM Policy
SESPL complies with the United States Federal CAN-SPAM Act found here:
SESPL and its customers are also governed by California Corporations Code Section 17538.45 related to electronic mail advertisement found here. As it relates to this section, SESPL is an "Electronic Mail Service Provider" and you are a "Registered User".
In order to comply with these regulations, SESPL has created the guidelines below to assist you in compliance. This information is intended solely as a guideline and SESPL does not warrant or guarantee in any way whatsoever that adherence to only these guidelines will prevent your violation of applicable U.S. and local laws. Please consult with appropriate legal counsel if you have any questions on your compliance.
Mailing list subscriber information must include the date and time that the subscription was confirmed, as well as the IP address of the subscriber at the time of the subscription. You must be able to present this information at SESPL’s request.
Lists should not be procured from outside parties unless you have procured a list from an organization that sells or otherwise shares email distribution lists, and all of the following conditions are met:
Modification of Email Headers
You must not modify the headers of any message in such a way that purposefully obfuscates the origin of the message. This includes changing the “From” address in an email client to something other than the real mailbox name. The Email Services will block email messages from being sent in this configuration.
It is strictly prohibited to sell, use, or disseminate software designed specifically to facilitate the practice of spamming in conjunction with your use of the Email Services.
9. Account Suspension
SESPL reserves the right to suspend, disable, or otherwise terminate your access to the Email Services, or take any other measures deemed to be appropriate, at any time and without prior notice, to enforce this Agreement or to ensure the integrity and performance of the Email Services.
You must substantially address all spam-related inquiries from SESPL personnel within 72 hours. Failure to respond within this time period may result in the immediate suspension, disablement, or termination of your Email Services.
10. Term and Termination
This Agreement shall commence on the first day that Services are ordered and paid for and shall remain in force continuously and uninterrupted so long as the Services are active. This Agreement shall renew upon payment of renewal by you.
All Services under this Agreement are provided on a pre-paid or advanced basis.
You may terminate this Agreement at any time without written notice. Upon termination, SESPL shall terminate access to the Email Services and any Data provided in connection with the Email Services immediately.
You agree to release, defend, indemnify and hold harmless SESPL, its parent companies, subsidiaries, affiliates, shareholders, agents, directors, officers, and employees from and against any and all claims, demands, liabilities, losses, damages or costs, including reasonable attorney's fees, arising out of or related in any way to this Agreement, the Services provided hereunder by SESPL, the Site or your account manager, your account with SESPL, Your use of the Services, and/or disputes arising in connection with the Services.
12. Warranty Disclaimer
SESPL, ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, AGENTS, DIRECTORS, OFFICERS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, THE SERVICES PROVIDED HEREUNDER, THE SITE OR ANY WEB SITES LINKED TO THE SITE, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ALL SERVICES, AS WELL AS THE SITE, ARE PROVIDED "AS IS". YOUR SUBSCRIPTION TO, AND USE OF, SESPL’S SERVICES AND ITS SITE ARE ENTIRELY AT YOUR RISK. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, IN WHICH EVENT THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
13. Limitations of Liability
YOU AGREE THAT SESPL WILL NOT BE LIABLE FOR ANY (1) SUSPENSION OR LOSS OF THE SERVICES (2) USE OF THE SERVICES, (3) INTERRUPTION OF THE SERVICES OR INTERRUPTION OF YOUR BUSINESS, (4) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO OUR SITE OR SERVICES OR DELAYS OR ACCESS INTERRUPTIONS YOU EXPERIENCE IN RELATION TO THE SERVICES; (5) LOSS OR LIABILITY RESULTING FROM ACTS OF OR EVENTS BEYOND OUR CONTROL (6) DATA NON-DELIVERY, MIS-DELIVERY, CORRUPTION, DESTRUCTION OR OTHER MODIFICATION; (7) OR LOSS OR LIABILITY RESULTING FROM THE UNAUTHORIZED USE OR MISUSE OF YOUR ACCOUNT IDENTIFIER OR PASSWORD. YOU ALSO AGREE THAT SESPL WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE USE OF THE SERVICES, BUT IN NO EVENT GREATER THAN THE AMOUNT FOR THE PRIOR 3 MONTHS OF SERVICES PAID FOR UNDER THIS AGREEMENT. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
The terms of this Agreement and information and data that one party (the "Receiving Party") has received or will receive from the other party (the "Disclosing Party") in connection with the this Agreement are proprietary and confidential information ("Proprietary Information") of the disclosing party, including without limitation, any and all technical and non-technical information.
Each of the parties agrees that they will not use, disseminate, or in any way disclose any Proprietary Information of the other party to any third party (except as required by law), nor use the Proprietary Information for any purpose not permitted under this Agreement. The nondisclosure obligations set forth in this section shall not apply to information that was previously available in the public domain prior to or during the term of this Agreement.
You may not assign any of your rights or privileges, or delegate any of its duties or obligations hereunder, in whole or in part, by operational of law or otherwise, to any third party without the prior written consent of SESPL. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
SESPL reserves the right, in its sole and absolute discretion, to change or modify this Agreement, and any policies or agreements which are incorporated herein, at any time and without notice. Any such changes or modification shall be effective immediately upon posting to the Site. If you do not agree to be bound by this Agreement as last revised as indicated by the “Last Revised” date located at the bottom of this Agreement, do not use or continue to use the Services. SESPL may occasionally notify you of changes or modifications to this Agreement or the Services by email so it is very important that you keep your account information current and up to date. SESPL is not responsible and assumes no liability for your failure to receive an email notification if such failure results from inaccurate or out-dated account information.
This Agreement constitutes the entire agreement between the parties concerning the subject matter herein and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter herein. Any of the provisions of this Agreement which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof or affecting the validity or unenforceability of any of the terms of this Agreement in any other jurisdiction. A waiver by either party of a breach or violation of any provision of this Agreement will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of this Agreement. The headings contained in this Agreement are for convenience only and shall not affect meaning or interpretation of this Agreement.
16. Governing Law
This Agreement and its subject matter shall be governed in accordance with the laws of India without regard to conflict of laws and principles contained therein. All controversies arising hereunder shall be brought in the courts located in India.