This is an agreement ("Agreement") between Tag Along Mail ("Company") and any person ("User") who completes the registration process to open and maintain an account with the Company's Fused Personal service ("Service"). Company and User are collectively referred to as the "parties."
1. Service Terms
a. Description. The Service is proprietary to Company and is protected by intellectual property laws and international intellectual property treaties. User's access to the Service is licensed and not sold. Subject to [the timely payment of all Fees and] the terms and limitations set forth in this Agreement, Company agrees to provide User with a personal, non-transferable and non-exclusive account enabling User to access and use the Service (but not for service bureau, time-sharing, or similar services). The Company reserves all rights not expressly granted to User, including, but not limited to, the right to alter, modify, update, enhance, or improve the Service.
b. Accessibility. User agrees that from time to time the Service may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Company may undertake from time to time; or (iii) causes beyond the control of Company or which are not foreseeable by Company.
c. Equipment. User shall be solely responsible for providing, maintaining and ensuring the compatibility of all hardware, software, electrical and other physical requirements necessary for User's use of the Service, including, without limitation, telecommunications and internet access connections and links, web browsers or other equipment, programs and services required to access and use the Service.
2. Limitations
a. Security. User shall be solely responsible for the security, confidentiality and integrity of all messages and the content that User receives, transmits through or stores on the Service. User shall be solely responsible for any authorized or unauthorized access to User's account by any person. User agrees to bear all responsibility for the confidentiality of User's passwords and all use or charges incurred from use of the Service with User's passwords.
b. Privacy Policy. In an effort to address User's privacy concerns, Company has instituted a privacy policy ("Privacy Policy") which may be found at http://www.Email4u.com.au/secure/privacyinfo.php and is incorporated herein by this reference. Company reserves the right to change the Privacy Policy at any time. User acknowledges that it has read and understands the Privacy Policy and that User has the obligation to periodically review the Privacy Policy from time to time. In the event any provisions contained in this Agreement conflicts with any terms, conditions or clauses contained in the Privacy Policy, the provisions of this Agreement shall govern.
3. Intellectual Property
The intellectual property utilized in providing the Service is the valuable, confidential and copyrighted property of Company. User may use the Service as permitted herein and may not otherwise modify, adapt, translate, or create derivative works based on the Service without the prior written consent of Company. If User wishes to use the Service or any ancillary and interface software utilized in providing the Service in a manner not expressly permitted by this Agreement, User may request express written permission from Company by giving to Company a written description of the intended use and such other information as Company may reasonably request. Such written permission may be given or withheld in the sole discretion of Company. As between the parties, Company owns all right, title, and interest in and to the Service, including without limitation, all ancillary and interface software, all current and future enhancements, revisions, new releases and updates thereof and any derivative works based thereon and all documentation thereto, all copyrights, trade secrets, patents and goodwill therein. As between the parties, User shall retain all rights, if any, which User may have in any images, photographs, illustrations, graphics, audio clips, video clips and text retrieved, viewed or sent by User using the Service. "Tag Along Mail" and the "Tag Along Mail" logo are service marks of Company. All other trademarks, service marks and logos used on the website or through the Service are the trademarks, service marks or logos of their respective owners.
5. User Representations
User represents and warrants to Company that: (a) User is over the age of eighteen (18) and has the power and authority to enter into and perform User's obligations under this Agreement; (b) all information provided by User to Company is truthful, accurate and complete; (c) User shall comply with all terms and conditions of this Agreement, including, without limitation, the provisions set forth in Section 6; (d) User has provided and will maintain accurate and complete registration information with Company, including, without limitation, User's legal name, address and telephone number; and (e) User's access to and/or use of the Service does not and will not constitute a breach or violation of any other agreement, contract, terms of use, or similar policy or understanding to which User is or may be subject.
6. Prohibited Uses
User is solely responsible for any and all acts and omissions that occur under User's account or password, and User agrees not to engage in unacceptable use of the Service, which includes, without limitation, use of the Service to: (a) disseminate, store or transmit unsolicited messages, chain letters or unsolicited commercial email; (b) disseminate or transmit material that, to a reasonable person may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening or malicious; (c) disseminate, store or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property right of any person; (d) create a false identity or to otherwise attempt to mislead any person as to the identity or origin of any communication; (e) export, re-export or permit downloading of any message or content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses or exemptions; (f) interfere, disrupt or attempt to gain unauthorized access to other accounts on the Service or any other computer network; (g) disseminate, store or transmit viruses, trojan horses or any other malicious code or program; or (h) engage in any other activity deemed by the Company to be in conflict with the spirit or intent of this Agreement.
7. Termination
This Agreement is effective upon User's acceptance as set forth herein and shall continue in full force until terminated. User may terminate this Agreement for any reason upon thirty (30) days prior notice to Company. This Agreement will terminate automatically without notice from Company if User fails to comply with any provision of this Agreement. Company reserves the right, in its sole discretion and without notice, at any time and for any reason, to: (a) remove or disable access to all or any portion of the Service; (b) suspend User's access to or use of all or any portion of the Service; and (c) terminate this Agreement. Termination for any reason shall not affect Company's entitlement to any sums due hereunder, or any additional remedies provided by law or equity. Under no circumstances shall User be entitled to any refund on any portion of fees paid in connection with this Agreement.
8. Disclaimer of Warranties
THE SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT USER'S SOLE RISK. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE SERVICE. COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO THE SERVICE.
9. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO USER OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICE OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, USER'S USE OR INABILITY TO USE THE SERVICE, ANY CHANGES TO OR INACCESSIBILITY OF THE SERVICE, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR AGREEMENT ENTERED INTO THROUGH THE SERVICE, OR ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SERVICE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL COMPANY'S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE TOTAL FEES PAID, IF ANY, BY USER TO COMPANY HEREUNDER. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO USER. IF USER IS DISSATISFIED WITH THE SERVICE, USER'S SOLE AND EXCLUSIVE REMEDY SHALL BE FOR USER TO DISCONTINUE USE OF THE SERVICE AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7.
COMPANY IS NOT AN INSURER WITH REGARD TO PERFORMANCE OF THE SERVICE. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN ORDER FOR USER TO OBTAIN THE RIGHTS TO USE THE SERVICE AT THE SPECIFIED PRICE, IF ANY. USER AGREES TO ASSUME THE RISK FOR: (i) ALL LIABILITIES DISCLAIMED BY COMPANY CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
10. Indemnification
User agrees to indemnify, hold harmless and defend Company, its members, officers, employees and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any person or entity, arising out of or relating to: (a) this Agreement; (b) User's use of the Service, including any data or work transmitted or received by User; and (c) any unacceptable use of the Service by User or through User's account, including, without limitation, any statement, data or content made, transmitted or republished by User which is prohibited as unacceptable at Section 6.
11. Miscellaneous
a. Independent Contractors. The parties and their respective personnel, are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
b. Amendment. Company shall have the right, at any time and without notice, to add to or modify the terms of this Agreement, simply by delivering such amended terms to User by email at the address provided to Company by User. User's access to or use of the Service after the date such amended terms are delivered to User shall be deemed to constitute acceptance of such amended terms.
c. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
d. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, then such provision will be enforced to the maximum extent possible and the other provisions will remain fully effective and enforceable.
e. Notice. All notices shall be in writing and shall be deemed to be delivered when sent by first-class mail, postage prepaid, or when sent by facsimile or e-mail to either party's last known post office, facsimile or e-mail address, respectively. User hereby consents to notice by email. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, provide to the other party.
f. Law. This Agreement shall be treated as though it were executed and were to be performed in Queensland, Australia. This Agreement shall be interpreted in accordance with and governed by the laws of the State of Queensland, Australia, without regard to conflict of law principles.
g. Forum. All actions, claims or disputes arising under or relating to this Agreement shall be brought in the federal or state courts in the State of Queensland. The parties irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over each of the parties by the federal and/or state courts in the State of Queensland. The parties hereby irrevocably waive any and all objections which any party may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts in the State of Queensland and to the laying of venue of any such suit, action or proceeding brought in any such federal or state court in the State of Queensland.
h. Process. The parties irrevocably submit and consent, and irrevocably waive any and all objections which any party may now or hereafter have, to process being served in any such suit, action or proceeding referred to in the preceding subsection pursuant to the rules of the applicable court, including, without limitation, service by certified or registered mail, return receipt requested. No provision of this section shall affect the right of any party to serve process in any manner permitted by law or limit the right of any party to bring suits, actions or proceedings to enforce in any lawful manner a judgment issued by the state or federal courts of the State of Queensland, Australia.
i. Action. No action arising under this Agreement may be brought by User more than one year after the cause of action has accrued.
j. Attorney's Fees. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled.
k. Headings. The captions and headings of this Agreement are included for ease of reference only and will be disregarded in interpreting or construing this Agreement.
l. Force Majeure. If the performance of any part of this Agreement by either party (other than the payment of money) is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
m. Survival. The terms and provisions of Sections 2, 3, 5, 6, 7, 8, 9, 10 and 11 shall survive any termination or expiration of this Agreement.
n. Entire Agreement. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Service.
Support Scope
The following outlines the scope of support that Tag Along Mail offers. Because email hosting by nature relies on a combination of customer supplied client software and products it is important to define what is supported by our company and what is the responsibility of the customer.
We will ensure:
* Our email service is always up!
* We provide all initial support necessary for you to access our system and use it's full functionality
* We answer the phone when you call, and resolve your problems in a timely manner
You need to ensure:
* That you are connected to the internet!
* Settings we provide you to get the system operational on your computer do not get changed
* If you install new software like an operating system, anti virus or firewall, you need to make sure you backup your settings and emails.
The reality is that we have developed this product to be available 100% of the time. In almost all cases the problems our customers face are cased by one of the above reasons. We are more than happy to give you support in these cases, however we are limited to what we can do, other than point you in the right direction.
In the case that we are required to reconfigure/restore such a system, we reserve the right to charge a fee of $69 per hour.
Acceptable Use Policy
This Acceptable Use Policy ("AUP") as amended from time to time applies as follows: TagAlong Mail Customers (to the extent they use Email Hosting Services and/or Email Marketing Services) agree to comply with this AUP and Resellers agree to be responsible to TagAlong Mail for assuring that each Reseller Account and their Users will be similarly bound as if the Reseller Accounts were Customers of TagAlong Mail under this AUP. Customer acknowledges and agrees that it is responsible for continual compliance with this policy, in order to ensure the integrity, security and reliability of the Email Hosting Services, the Email Marketing Services, and its networks, systems, facilities and data. A breach of the AUP by Reseller Account will be deemed to be a breach by the Reseller.
Definitions
In this AUP the following terms will be used and have the subsequent definitions assigned to them:
* TagAlong Mail Network: the network infrastructure, hardware, and software used to provide the Email Hosting Services and Email Marketing Services.
* Email Hosting Services: the capability acquired from TagAlong Mail to send and receive email through the Internet, via SMTP, POP3, IMAP4, and HTTP protocols.
* Email Marketing Services: the capability acquired from TagAlong Mail to send permission-based Bulk Email.
* Bulk Email: the simultaneous transmission of a single email message to a list of contacts.
* TagAlong Mail: the company providing Email Hosting Services and Email Marketing Services pursuant to this Agreement.
* Customer(s): purchaser(s) of Email Hosting Services and/or Email Marketing Services directly from TagAlong Mail, including Resellers.
* Reseller(s): purchaser(s) of Email Hosting Services and/or Email Marketing Services from TagAlong Mail for the purpose of reselling the services to their respective customers. Provisions pertaining specifically to Resellers override conflicting provisions applicable generally to Customers.
* Reseller Account(s): purchaser(s) of Email Hosting Services and/or Email Marketing Services from Resellers.
* User(s): user(s) of Email Hosting Services, whether purchased directly from TagAlong Mail or from a Reseller.
Sending Spam
No Customer may send, or attempt to send, unsolicited email messages ("Spam"). Spam is not only annoying to Internet users; it violates federal and state laws and seriously affects the efficiency and cost-effectiveness of the Email Hosting Services and Email Marketing Services. Sending Spam can lead to industry blacklisting of Customer's business and mail servers, resulting in interruption and/or termination of Customer's Email Hosting Services and/or Email Marketing Services.
Specifically, Customer shall not:
1. Send, or attempt to send, Spam of any kind from the TagAlong Mail Network;
2. Send, or attempt to send, Spam of any kind from third-party networks using a return email address that is hosted on the TagAlong Mail Network, or referencing an email address hosted on the TagAlong Mail Network;
3. Send email messages which result in complaints from the recipient or from the recipient's email provider, or which result in blacklisting of the sender's email address or mail server;
4. Send email messages which are excessive and/or intended to harass or annoy others;
5. Continue to send email to a recipient that has indicated that he/she does not wish to receive it;
6. Take any actions intended to cloak the Customer's identity or contact information, including but not limited to intentionally omitting, deleting, forging or misrepresenting message headers or return addresses; or
7. Take any other action that results in blacklisting of the sender's email address or mail server, or negatively impacts other Customers who use the Email Hosting Services.
In the absence of positive, verifiable proof to the contrary by a Customer, TagAlong Mail will consider complaints by recipients of emails to be conclusive that the recipient did not subscribe or otherwise request the email(s) about which a complaint was generated.
Security
Customer is prohibited from violating, or attempting to violate, the security of TagAlong Mail Network. Any violations may result in criminal and civil liabilities to the Customer. TagAlong Mail will investigate any alleged violations and will cooperate with law enforcement agencies if a criminal violation is suspected. Examples of violations of the security of the TagAlong Mail Network include, but are not limited to: (i) accessing data not intended for Customer, (ii) logging into a server or account which the Customer is not authorized to access, (iii) attempting to probe, scan or test the vulnerability of a system, (iv) breach of security or authentication measures, (v) attempting to interfere with service to any User, host or network, or (vi) taking any action in order to obtain services to which the Customer is not entitled.
Illegal Use
The Email Hosting Services and Email Marketing Services may only be used for lawful purposes. For example, Customer may not use the TagAlong Mail Network to create, transmit, distribute, or store content that: (i) violates a trademark, copyright, trade secret or other intellectual property rights of others, (ii) violates export control laws or regulations, (iii) violates the privacy, publicity or other personal rights of others, (iv) impairs the privacy of communications, (v) contains obscene, offensive, unlawful, defamatory, harassing, abusive, fraudulent, or otherwise objectionable content as reasonably determined by TagAlong Mail, (vi) encourages conduct that would constitute a criminal offense or give rise to civil liability, (vii) constitutes deceptive online marketing, (viii) violates reasonable regulations of TagAlong Mail, (ix) causes technical disturbances to the TagAlong Mail Network, its affiliated networks, or the network used by Customer to access the Email Hosting Services or Email Marketing Services, or violate the policies of such networks, including, but not limited to, intentional introduction of any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system or data, or (x) assists, encourages or permits any persons in engaging in any of the activities described in this section. If Customer becomes aware of any such activities, Customer is obligated to immediately notify TagAlong Mail and take all other appropriate actions to cause such activities to cease.
Content
Customer is responsible for all content that is transmitted, received and stored by TagAlong Mail through Customer's use of the Email Hosting Services and Email Marketing Services. TagAlong Mail takes no responsibility for content passing through or stored on the TagAlong Mail Network, including but not limited to, viruses, mail floods or other disabling features, or content provided on third party websites that are linked to by content passing through or stored on the TagAlong Mail Network. TagAlong Mail does not adopt, nor warrant the accuracy of, the content of any linked website and undertakes no responsibility to update the content. Use of any information obtained via the TagAlong Mail Network is at Customer's own risk.
Consequences of Unacceptable Use
TagAlong Mail reserves the right to suspend or terminate Customer's access to the Email Hosting Services and/or Email Marketing Services upon notice of a violation of this policy as well as, in the case of a Reseller, such right of the Reseller and the Reseller Accounts of such Reseller upon violation of this policy by the Reseller or its Reseller Accounts. Indirect or attempted violations of this policy, and actual or attempted violations by a third party on behalf of Customer, shall be considered violations of this policy by Customer.
Potential Materials
Customer agrees that it shall not violate any copyright or trademark right of TagAlong Mail or other intellectual property right of TagAlong Mail with respect to any material provided to Customer by TagAlong Mail, including any promotional or marketing material.
Administration of Policy
Customer understands that the administration of this policy requires the exercise of discretion and judgment by TagAlong Mail. TagAlong Mail agrees to exercise good faith in its administration of this policy and in making determinations under the policy. However, Customer agrees that any and all determinations by TagAlong Mail in connection with the administration and enforcement of this policy shall be final and binding.
Requirements for Using Email Hosting Services
The following requirements apply only for Customer's use of the Email Hosting Services. It does not apply to Customer's use of the Email Marketing Services.
1. Sending Bulk Mail: Customers may not use the Email Hosting Services to send "Opt-in" Bulk Email. TagAlong Mail defines "Opt-in" Bulk Email ("Bulk Email") as email messages of similar content that are sent to more than 250 recipients within a relatively short period of time. The term .Opt-in. means that the recipients have signed up to receive the emails voluntarily, and implies that the Bulk Email is not Spam. This restriction does not apply when sending mail to Customer's mailboxes hosted on the TagAlong Mail Network. TagAlong Mail has measures in place to prevent Bulk Email from being sent through its servers, and any attempt to do so may not be delivered and may result in interruption and/or termination of Customer's Email Hosting Services. Attempts to circumvent this Bulk Email restriction by breaking up bulk mailings over a period of time or by sending from multiple email accounts will itself be considered a violation of this policy.
2. Receiving Bulk Email: Customer may not use the Email Hosting Services for the purpose of receiving Bulk Email. Submitting any email address that is hosted on the TagAlong Mail Network to Bulk Mail organizations such as Safelists, FFAs and spam databases is expressly prohibited. Customer shall permit TagAlong Mail to block Bulk Mail from such organizations.
3. Bounces: The TagAlong Mail Network is not set up to process bounce messages for Bulk Email. Therefore, a Customer may not send Bulk Email from third-party networks using a return address that is hosted on the TagAlong Mail Network, unless it assures that not more than 100 bounce emails will arrive to the TagAlong Mail Network as the result of sending Bulk Email from a third-party network.
4. Shared Mailboxes: Mailboxes are intended for single-user use, by a natural person. Attempting to log into a single mailbox simultaneously from more than one computer, or using automated tools such as Fetchmail or Microsoft Exchange Connector to virtualize one mailbox into multiple mailboxes is expressly prohibited.
5. Automated Use: Mailboxes are not intended for automated use such as sending emails from web servers, or receiving emails by automated programs. Such use is permitted provided Customer does not violate any conditions of this AUP; however TagAlong Mail does not provide technical support for this type of use.
Requirements for Using Email Marketing Services
The following requirements apply only for Customer's use of the Email Marketing Services. It does not apply to Customer's use of the Email Hosting Services.
1. Opt-In: Customer may only send Bulk Email to recipients who have knowingly requested to receive Bulk Email communications from Customer.
2. Unsubscribe: Each email must contain an unsubscribe link to provide the recipient with the ability to opt-out of future emails. If the opt-out election is made, the recipient's address will be automatically removed from Customer's mailing list, and Customer may not subsequently add the recipient back to any list.
3. Valid Content and Contact Information: All Bulk Email messages must contain an email subject line that clearly describes the subject matter contained in the email and a "From" address that accurately identifies Customer as the sender. All messages must also contain valid contact information, including Customer's physical address.
4. Throttling: Customer agrees to any throttling or monitoring actions implemented by TagAlong Mail in the event of a Bulk Email attempt resulting in excess bounced messages.
5. Message Inspection: Bulk Email messages are subject to the review and approval by TagAlong Mail before transmission.
