Terms and Conditions

ATMAIL CORE TERMS AND CONDITIONS

Between:
atmail pty ltd, ABN 97 088 876 733 of Unit 22, 224 David Low Way, Peregian Beach QLD, Australia 4573 (atmail);
and
The person identified as the Customer in the Online Application Process (Customer).

 

FORMATION OF AGREEMENT AND INTERPRETATION

1.1 Customer and atmail enter an agreement governed by these terms and conditions by: (a) Customer completing and submitting an Online Application Form, setting out the details of the Services required; (b) atmail processing that form, accepting the application and notifying Customer of that acceptance.

1.2 In this Agreement, unless the context requires otherwise, the following terms have the following meanings:

(a) Account means an account linked to a specific inbox either within the atmail cloud (in relation to cloud implementations) or on the Customer’s equipment (in relation to on premise implementations). If a User has multiple inboxes, each is a separate Account and each counts against the Quota for the relevant Category

(b) Activesync Device means a phone, personal digital assistant or similar hand-held device authorized and licensed by Microsoft to use the ActiveSync Protocol that wirelessly accesses the Internet to synchronize and display PIM Information. Activesync Devices do not include servers, desktop computers, or laptop computers;

(c) Activesync Implementation means those portion(s) of atmail software developed by atmail or for atmail or its subsidiaries that (i) implement the ActiveSync Protocol in accordance with the relevant technical documentation; and (ii) interoperate wirelessly with ActiveSync Devices using that protocol;

(d) Activesync Mailbox means an account maintained by the atmail software that is activated or otherwise enabled for storage or synchronization of any personal information management (PIM) information such as e-mail, calendar, contacts or tasks using the ActiveSync Protocol. For the avoidance of doubt, each unique e-mail address supported by the atmail Software will constitute a separate ActiveSync Mailbox. Each Account with a cloud Service and each Account in the “Pro” Category for an on premise service is so activated;

(e) Activesync Necessary Claims means the claims of a patent or patent application that an entity owns or has the right to sublicense without a fee and that are necessarily infringed by implementing the ActiveSync Protocol in accordance with the relevant technical documentation in order to interoperate with ActiveSync Devices. Activesync Necessary Claims do not include any claims to any underlying or enabling technology that may be used or made available in connection with the ActiveSync Protocol or an ActiveSync Implementation, or to any implementation of technical documentation, specifications or technologies that are merely referred to in the body of the relevant technical documentation;

(f) Activesync Protocol means the Microsoft Exchange ActiveSync Protocol;

(g) Activesync Royalty Periods means periods of twelve (12) consecutive calendar months commencing on the Commencement Date , except that the last Royalty Period shall end on the day upon the last of the ActiveSync Necessary Claims expires;

(h) Agreement means these Core Terms and Conditions, the atmail cloud Services Service Description (in relation to cloud implementations), the atmail On Premise Software Licence Service Description (in relation to on premise implementations) and includes all documents referenced in them including schedules and their attachments;

(i) Category in relation to an Account means one of cloud, Basic, Standard, Pro (or such other categories as are offered by atmail from time to time). The functions available through an Account on the atmail Software are those offered by atmail from time to time in respect of the relevant Category of Account as set out on the atmail website.

(j) Commencement Date means the date that: atmail notifies Customer that it has accepted Customer’s application either without conditions or, if with conditions, when all conditions on that acceptance (in particular credit checks) have been satisfied;

(k) Confidential Information of a party means all information of that party which is disclosed by that party and is marked as confidential or would reasonably be considered to be confidential and, except as otherwise agreed in writing, includes such information disclosed prior to the execution of this Agreement;

(l) Dependencies means requirements of the Customer’s software, hardware, configuration and environment (including third-party services) published by atmail from time to time;

(m) Evaluation Purpose means the evaluation of the atmail cloud Services (in relation to cloud implementations) or of the atmail software (in relation to on premise implementations) by Customer (including configuration or migration of existing mail for use with the atmail Software or atmail cloud Services) for use in the future by Customer’s end users;

(n) Fees means the fees charged by atmail from time to time under this agreement;

(o) GST means any tax in the nature of a goods and services or value added tax that atmail is required to charge in relation to a given supply under this Agreement;

(p) Online Application Form means the form filled out by Customer to apply for the Services to which this Agreement relates;

(q) Renewal Date at any time means the next anniversary of the Commencement Date following the current day;

(r) Service means one of “cloud” and “on premise” as identified in the relevant Online Application Form;

(s) Service Description means the most recent version from time to time of the document made available by atmail setting out terms and conditions specific to the Service;

(t) Tax Invoice means any invoice required to be provided in the course of administering a GST in order to either be entitled to collect the GST or to allow Customer to support a claim for the reimbursement of part or all of the tax;

(u) Term in relation to a cloud Service means a calendar month and in relation to an on premise Service means one year;

(v) User means a person permitted by Customer to use the atmail software. Most Users will be Customer’s end users, although some may be Customer’s staff and contractors.

1.3 In this Agreement, unless the context requires otherwise:

(a) Terms in the Contract Details have the meanings given to them there;

(b) To the extent of any inconsistency the Service Description takes precedence over the body of this Agreement and over any schedule attached to or referred to in the Service Description;

(c) All references to time and dates are references to the time, or date in Brisbane, Australia; and

(d) The use of a term indicating a gender or genders includes all genders.

1.4 No provision of this Agreement may be construed against a party because that party drafted that term.

 

PROVISION OF SERVICES AND CUSTOMER ASSISTANCE

2.1 atmail will provide the Services to Customer on the terms of the Service Description. atmail and Customer are bound by the terms of the Service Description.

2.2 atmail may suspend the performance of any or all of its obligations under this Agreement by notice to Customer during any period in which the Customer has failed to pay any amount due to atmail under this Agreement. Where an obligation of atmail under this Agreement is dependent upon Customer providing information or assistance or performing an obligation under this Agreement, that obligation of atmail is automatically suspended until the Customer has provided that information or assistance or performed that obligation and any other obligations of atmail under this Agreement are extended by a reasonable period as a result of Customer’s delay.

2.3 The Customer must provide all assistance as is reasonably necessary for atmail to carry out its obligations under this Agreement. The assistance the Customer is required to provide under this clause 2.3 includes, but is not limited to, provision of all access codes, usernames and passwords known by Customer necessary to access, administer or use any of the Services administered by atmail under this Agreement.

2.4 Except where expressly stated to the contrary in this Agreement (including in a Service Description):

(a) atmail gives no licence over anything provided by atmail under this Agreement and atmail retains all rights in relation to the Service and in any material in the course of providing the Service. In particular, software licensed under an open source licence is generally licensed directly by the copyright owners of the relevant work;

(b) atmail has no responsibility for determining the scope or effect of any Services acquired by Customer under this Agreement;

(c) Except to the extent necessary to provide the Service, the storage of material on an atmail server, or the sending of material in an email through the use of the Service does not of itself give atmail any rights in the material.

 

FEES, INVOICING AND GOODS AND SERVICES TAX (“GST”)

3.1 The Fees are published by atmail on its website as varied by atmail from time to time.

3.2 Where the Service is a cloud service, atmail may invoice Customer monthly in arrears. Where the Service is an “on premise” service atmail may invoice Customer immediately for all Activation Keys purchased by Customer, and, where this Agreement is renewed, may invoice Customer for all Activation Keys upon the Renewal Date. atmail will provide Customer with a Tax Invoice in respect of all Australian GST charged and, where it is reasonably able, in respect of any other GST charged. All invoices must be paid in cleared funds to atmail in the currency stated on the invoice without any deductions. In particular, Customer is liable for all bank transfer charges and must, when paying an invoice, ensure that, after deduction of all third party charges and the conversion to the invoiced currency, atmail receives the amount stated on the invoice.

3.3 Except where the parties agree in writing to the contrary, or where the context requires otherwise:

(a) All amounts quoted by atmail are exclusive of GST and all other taxes and duties;

(b) Unless GST is not leviable, atmail may, in addition to the Fees, add to each invoice GST on the value of the invoice at the prevailing rate of GST;

(c) Where no price or other method of calculation of Fees has been agreed in writing, atmail may invoice the Customer for work performed at atmail’s then current published fees or time and materials rates; and

(d) To the extent permitted by law, and except in the event of a total failure by atmail to provide the relevant good or service in breach of this Agreement, all payments made under this Agreement are non-refundable.

3.4 Customer must pay each of atmail’s invoices in full in accordance with the Payment Terms and, where no time is set out in the Payment Terms, within 7 days of the date of the invoice.

3.5 atmail may vary the Fees by notice in writing to Customer at any time. The Fees become effective as set out in that notice or, if it is silent on the issue, 7 days after the Customer receives that notice.

 

CONFIDENTIALITY AND PRIVACY

4.1 Each party must keep the Confidential Information of the other party confidential and must not disclose that information to any third party without the written consent of the other party. Each party must use the Confidential Information of the other party only for the purpose of complying with its obligations under this Agreement.

4.2 A party’s obligations of confidentiality in this Agreement do not apply to information which:

(a) Is or becomes generally known other than through a breach of this Agreement;

(b) That party can prove was developed independently by that party without reference to the Confidential Information of the other party;

(c) Is rightfully received by that party from a third party without an obligation of confidentiality; or

(d) That party can prove was known to that party prior to the disclosure of the information by the other party.

4.3 If the parties have executed a separate confidentiality or non-disclosure agreement, then, except to the extent of inconsistency (in which case the terms of this Agreement take priority), the obligations in this Agreement are in addition to and run parallel with the obligations in that agreement.

 

WARRANTIES AND LIABILITY

5.1 To the extent permitted by law, atmail excludes all warranties, guarantees and conditions that would otherwise be implied into this Agreement by law. Where atmail is not able to exclude such a warranty, guarantee or condition, atmail limits, to the extent permitted by law, its liability for a breach of that warranty, guarantee or condition to one or more of the following at atmail’s option:

(a) In the case of goods, any one or more of the following:

(i) The replacement of the goods or the supply of equivalent goods;

(ii) The repair of the goods;

(iii) The payment of the cost of replacing the goods or of acquiring equivalent goods;

(iv) The payment of the cost of having the goods repaired; and

(b) In the case of services:

(i) The supplying of the services again; or

(ii) The payment of the cost of having the services supplied again.

5.2 atmail has no liability to any person arising under or in relation to this Agreement (whether in tort, contract, equity or otherwise) for any loss in the nature of consequential or economic loss. In particular, atmail has no liability to any person for any: lost profits; loss of savings, income or revenue; revenue not meeting targets or certain levels; uptime or availability of internet connectivity or of the ability of third parties to access a website; loss of opportunity; or loss of or corruption of data. The exclusions in this clause 5.2 apply even in respect of loss or damage that was foreseeable or about which either or both of the parties were aware was likely to arise.

5.3 Customer must ensure it has adequate backups of all data to which atmail will have access in the course of the engagement. Customer must ensure that it is able to restore such backups in the event of any data becoming corrupted. atmail has no liability for any loss resulting from any damage to or loss of data arising out of or which occurs as a result of the relationship between atmail and Customer. atmail does not warrant that all data in Customer’s existing or legacy systems can be imported into any new system provided by atmail. This clause 5.3 does not apply to email data stored on atmail’s servers in the course of the operation of the Service.

5.4 The total aggregate liability of atmail for all loss or damage in respect of all claims arising out of or in relation to this Agreement or out of or in relation to the relationships contemplated by this Agreement whether arising in tort (including negligence), contract, equity or otherwise is limited to the total of all Fees received by atmail under this Agreement in the twelve months following the Commencement Date

 

TERM AND TERMINATION

6.1 This Agreement commences on the Commencement Date and continues for a period of time equal to the Term unless terminated earlier.

6.2 Unless terminated in accordance with clause 6.3, this Agreement will automatically renew and remain in force and effect, under the same terms, conditions and Fees for additional periods equal to the Term, each a Renewal Term. Any number of Renewal Terms under this clause 6.2 may occur.

6.3 Customer may terminate this Agreement without cause:

(a) In respect of a cloud Service, by giving written notice to atmail with that termination becoming effective at the end of the calendar month in which it is given; and

(b) In respect of an on premise Service, by giving at least 14 days written notice with that termination becoming effective on the first Renewal Date following the expiry of that notice period.

6.4 Subject to clause 6.5, a party may terminate this Agreement immediately by written notice where:

(a) The other party commits a breach of a term of this Agreement, other than a failure to pay money, and that breach is not remedied within 30 days of written notice of that breach from the first party; or

(b) The other party becomes insolvent or unable to pay its debts when they fall due;

(c) In the case of atmail, an attempt to charge Customer’s credit card for any fees incurred under this Agreement fails three or more times; or

(d) The other party fails to pay (in full and in cleared funds) money due under this Agreement by the time that payment is due.

6.5 Each party must cease use of and return to the disclosing party the disclosing party’s Confidential Information within 14 days of the termination or expiry of this Agreement. The receiving party may destroy the disclosing party’s Confidential Information instead of returning it under this clause 6.5 if the disclosing party gives its prior written permission to that destruction. Each party must ensure that, after the expiry of the 14 day period referred to in this clause 6.5 it retains none of the other party’s Confidential Information.

6.6 Upon termination of this Agreement:

(a) The Customer is not entitled to any refund of any amounts paid in advance;

(b) All outstanding invoices become due and payable immediately;

(c) atmail may invoice the Customer for all work accrued but not billed at the date of termination. Such an invoice is payable within 7 days of the date of the invoice.

6.7 Each clause which by its nature and the circumstances ought to survive the termination of this Agreement survives. The following clauses also survive the termination or expiry of this Agreement: 4, 5, 6, 7, 8, 9.

 

ACTIVESYNC COMPONENT

7.1 At any time Customer may use up to the number of current ActiveSync Mailboxes that the Customer has purchased from atmail. The provision of ActiveSync Mailboxes to the Customer is for the sole purpose of allowing the atmail software to interoperate with ActiveSync Devices. Customer’s use of each ActiveSync Mailboxes is subject to the following conditions:

(a) No distribution license or other rights are provided to Customer;

(b) Use of the atmail software is

(i) Limited to internal use by customers of Customer as part of the hosting of the atmail software for the sole purpose of providing access by ActiveSync Devices to the ActiveSync Mailboxes of customers of Customer maintained by the atmail software; and

(ii) Conditioned on the annual Royalties being timely paid in compliance with Section 3 of atmail’s confidential patent licence agreement in relation to the Microsoft Exchange ActiveSync Protocol;

(c) atmail has the right, to the extent legally permissible, to audit Customer for compliance with the terms of this section 7.2 under the terms of section 8;

(d) Customer must ensure that its customers and all users of atmail software agree to and are bound by the following condition on their right to access and use the atmail software:
“The provision of this service to you does not grant, and you do not receive, any rights under any Microsoft intellectual property with respect to any device or software that you use to access this service.”

(e) Customer will maintain accurate and adequate books and records related to their compliance during each ActiveSync Royalty Period with all terms and conditions of this clause 7.2 (collectively, “Audit Information”) until the date that is three years from the end of the last ActiveSync Royalty Period.

 

ACTIVESYNC AUDIT

8.1 If required by atmail, Customer will provide access to Audit Information to a nationally recognized independent certified public accountant (“Auditor”) selected by atmail and approved by Customer (such approval not to be unreasonably delayed or withheld), for purposes of conducting an audit of Customer’s compliance with the terms of this Agreement. Customer must be given at least 30 days notice of any audit and the access will be limited to those portions of the Audit Information necessary to verify Customer’s compliance with this Agreement. The Auditor will use reasonable and customary care to protect the confidentiality of Audit Information. Audits will be conducted during regular business hours at Customer’s facilities. The Auditor may be escorted by Customer’s personnel when on Customer’s premises and will not unreasonably interfere with Customer’s normal course of business. Following conclusion of the audit, the Auditor will provide both atmail and Customer with a report of the results of the audit.

8.2 Audits will not be performed more than once every 12 months, unless an audit discloses a Material Discrepancy, in which case follow-up audits may be conducted until the Material Discrepancy has been resolved. Customer will pay the costs of any audit(s) that reveal a Material Discrepancy within 30 days of receipt of an invoice for such costs; otherwise, atmail will be responsible for the costs. “Material Discrepancy” means (i) with respect to fees in respect of ActiveSync Mailboxes, the greater of 5% or $10,000 when compared to the amount that was reported during the period subject to audit; and/or (ii) with respect to other terms of this Agreement, material non-compliance with any other material terms.

 

DISPUTE RESOLUTION

9.1 Subject to clause 9.2, prior to commencing any action in any court or any action in any other form of judicial of quasi-judicial forum relating to this Agreement the parties must comply with the requirements of this clause 9.

9.2 Nothing in this clause 9 prevents either party seeking urgent interlocutory relief from a court in relation to any breach or potential breach of an obligation of confidentiality or in relation to any other matter of urgency.

9.3 Where a party gives written notice to the other party of a dispute in respect of a matter the subject of this Agreement, Customer must cause a senior representative with authority to settle the dispute to be available and to speak with an atmail representative with a view to resolving the dispute.

9.4 Where a dispute remains unresolved for a period of 21 days of a notice under clause 9.3, each party must endeavour to settle the dispute by mediation. Such mediation must be conducted: in accordance with the LEADR Mediation Rules; in Brisbane. Qld, Australia; and by a mediator who is independent of the parties and appointed by agreement of the parties or, failing agreement, within 7 days of receiving any party’s notice of dispute, by a person appointed by the Chair of LEADR, (ACN 008 651 232, Level 1, 13-15 Bridge Street, Sydney NSW 2000; telephone: 02 9251 3366, fax: 02 9251 3733, email: leadr@leadr.com.au) or the Chair’s designated representative.

9.5 Once the parties have concluded a mediation under clause 9.4 each party is released from the requirements of clause 9.1 in relation to that dispute.

9.6 The discussions between the parties under this clause 9 are made on a “without prejudice” basis; and cannot be tendered or referred to in evidence in any judicial or quasi judicial proceedings without the consent of the party making the relevant statement.

 

GENERAL

10.1 Except as set out in this Agreement to the contrary, nothing in this Agreement:

(a) Gives either party the ability to act or incur liability on behalf of the other party; or

(b) Creates a relationship of joint venturers, principal and agent or employee and employer between the parties.

10.2 Except where expressly set out to the contrary, nothing in this Agreement grants either party any rights over any intellectual property rights (including copyright, patents, and rights to the registration of such rights) held by the other party at any time during the term of this Agreement. Where such intellectual property rights arise as a result of the performance of this Agreement by or on behalf of atmail, those rights vest on creation in atmail.

10.3 This Agreement cannot be varied except in writing signed by both parties.

10.4 A waiver of rights under this Agreement can only occur in writing signed by the party granting the waiver. Except to the extent set out in the waiver, a waiver is only effective in relation to the specific facts and rights set out in it and does not operate to waive any other rights or to waive the same rights in respect of different facts or circumstances.

10.5 Where a part of this Agreement is held by a court to be illegal or otherwise unenforceable, and the unenforceability of that part does not substantially alter the character of the bargain that would have been in existence between the parties had that part been enforceable, that part is severed and the balance of this Agreement will continue unaffected.

10.6 This contract is governed by the laws in force in the State of Queensland, Australia. Each party submits to the non-exclusive jurisdiction of the courts of that State. The language of this Agreement is English and all notices given under this Agreement must be given in English.

10.7 Except to the extent the context requires otherwise, where an act, right or obligation under this Agreement is subject to the consent of a party, it may grant or withhold that consent in its sole discretion and is not required to provide a reason for that grant or withholding.

10.8 Notices under this Agreement must be given in writing. Notices under this Agreement may be given to the address of the party listed at the front of this Agreement, or, where another address is notified by that party in accordance with this Agreement, the address most recently notified by that party. If Customer has an email account on an atmail service atmail may give notices under this Agreement to that email account.

10.9 Neither party is liable for a failure to perform its obligations under this Agreement other than obligations to pay money if that failure is as a result of a cause outside the reasonable control of that party. Causes outside the reasonable control of a party include, without limitation, Acts of God (including fire, flood, earthquake, storm, hurricane or other natural disaster), war, invasion, act of foreign enemies, hostilities (regardless of whether war is declared), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, labour dispute, strike lockout or interruption or failure of electricity. Where a party is prevented from complying with its obligations under this clause for a period of 14 days either party may immediately terminate this Agreement by notice in writing.

10.10 This Agreement sets out the whole of the agreement between the parties in relation to its subject matter. It supersedes and replaces all prior negotiations and correspondence. In particular none of the following are of any effect unless agreed in writing by the parties in accordance with clause 10.3: documents and emails exchanged between the parties, annotations on any cheques or accompanying any other transfer of money; any terms on purchase or order documents; or any other correspondence between the parties.

 

SERVICE DESCRIPTION: ATMAIL CLOUD SERVICE

 

INTERPRETATION

1.1 In this Service Description, unless the context requires otherwise, the following terms have the following meanings:

(a) Acceptable Use Policy means Attachment A to this Service Description;

(b) Service means a cloud based email facility which:

(i) Provides email services to each of Customer’s Users, up to the total number of Users purchased by Customer;

(ii) The ability of Customer to manage the email accounts of Customer’s Users through a browser-based interface; and

(iii) 10 GB of email storage space per User with a size limit per message of 10 MB;

(c) Support Terms means the “Standard” support set out in the atmail Support Program made available from the atmail website, as that support is varied from time to time;

(d) User means a person permitted by Customer to use the atmail cloud services. Most Users will be Customer’s end users, although some may be Customer’s staff and contractors.

 

PROVISION OF SERVICE

2.1 Where the atmail cloud service is accessed in an evaluation mode then the atmail cloud service must be used for Evaluation Purposes only.

2.2 atmail will provide to Customer the Service during the term of this Agreement.

2.3 Customer must ensure that each User complies with the Acceptable Use Policy.

2.4 atmail must provide support to Customer in accordance with the Support Terms and subject to Customer’s compliance with all Dependencies. Customer and atmail may negotiate additional support if the Support Terms are not sufficient for Customer’s needs.

2.5 Customer may vary the number of Accounts at any time. The fees for this Service are determined by reference to the number of Accounts during the course of a month.

2.6 atmail may geographically locate the nodes which process and store the data used in providing the Service at its discretion. atmail gives no assurance that any processing or storage node used by the Service will be located in or outside of any particular jurisdiction. atmail may change the location of such nodes at its discretion and without notice to Customer. Customer understands that atmail uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage and related technology required to run the Service. Customer understands that the technical processing and transmission of the Service, including any content, may be transferred unencrypted and involve (a) transmissions over various networks and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

 

ACCEPTABLE USE POLICY FOR SERVICES

 

INTERPRETATION

1.1 In this atmail on-premises Software Licence Service Description terms have the meanings given to them in the Core Terms and Conditions and, unless the context requires otherwise, the following terms have the following meanings:

(a) atmail software means software provided to Customer by atmail other than Third Party Software.

(b) Contract Year means the period from the Commencement Date up to, but excluding, the first Renewal Date (the first Contract Year) and, thereafter, the calendar year from each Renewal Date up to, but excluding, the next is a separate Contract Year;

(c) Quota for a Category means the total number of Accounts Customer has purchased a licence in relation to. If the atmail software is in Evaluation Mode, the Quota is 5 Pro Accounts.

(d) Service means the licence set out in clause 2.

(e) Third Party Software means software any intellectual property rights in which are held by a person other than atmail. Third Party Software includes all open source software included as part of a software solution provided by atmail.

 

LICENCE

2.1 atmail grants Customer a licence over the atmail software. Subject to clause 2.2, the terms of the licence are:

(a) Customer may install and operate one unique instance per licence of the atmail software on Customer’s hardware and at Customer’s premises;

(b) Customer must ensure that the number of Accounts in each Category is less than or equal to the Quota for that Category. If there are Accounts in excess of the Quota for a Category the software is not licensed: in relation to the Accounts in excess of the Quota; or , if any specific Account which is in excess of the Quota cannot be identified, in relation to all Accounts in the relevant Category;

(c) Customer must ensure that each Account used on the atmail software is properly activated for the relevant Contract Year using a valid licence key provided by atmail;

(d) The use of the atmail software is conditional on the Customer’s payment of all Fees in full in cleared funds by the due date for payment.

2.2 Clause 2.1 notwithstanding, Customer may install and use the atmail software for Evaluation Purposes.

2.3 Except to the extent permitted by relevant laws which cannot be excluded by contract Customer must not:

(a) Attempt to reverse engineer any licence key;

(b) Produce or use any conterfeit licence key;

(c) Modify any part of the atmail software to enable the atmail software to operate without a valid licence key or to otherwise tamper with the licensing component of the atmail software.

2.4 If the Customer is in breach of clause 2.3 the Licence granted in clause 2.1 automatically terminates but may be reinstated on such terms as atmail considers appropriate. Despite such a termination, Customer must continue to comply with its payment obligations under this Agreement and Customer is not entitled to any refund of any amounts paid prior to the termination.

2.5 Accounts which are activated in the “Pro” Category may use the ActiveSync Protocol. Otherwise, nothing in this clause 2 permits Customer to make use of any ActiveSync Mailbox or any part of the atmail software which uses the ActiveSync Protocol except for.

 

FEES

3.1 All Fees under this service description are annual fees. The Fees in relation to a Quota or an increase in a Quota is a fixed amount regardless of the number of Accounts actually in use. Customer is not entitled to any refund if the number of Accounts in use for a Category is less than the Quota for that Category.

 

SOFTWARE ACTIVATION

4.1 The atmail software is initially distributed in an evaluation mode. This mode allows certain limited functionality for the atmail Software. When atmail software is in its evaluation mode it must be used for Evaluation Purposes only.

4.2 The atmail software may be put into its production mode by entering a valid licence key supplied by atmail. Each licence key contains the date period during which the atmail software is licensed and other details, including the Quota for each Category of Account. The atmail software will operate in production mode during the period determined by the licence keys entered in the atmail Software. More than one licence key may be entered into the atmail software during any one validity period and any Quotas on the licence key are cumulative with others already entered. All licence keys run from the date of issue of that licence key until the next Renewal Date. If all licence keys entered in the atmail software expire the atmail software will operate with limited functionality.

4.3 atmail issues licence keys in respect of Accounts purchased by Customer. atmail is not required to provide a licence key in relation to a purchase unless and until atmail has received full payment of the Fees for that purchase.

 

INCREASING THE NUMBER OF ACCOUNTS IN A CATEGORY

5.1 Customer may increase the Quota for any Category by: purchasing additional Accounts for that Category from atmail (including through the atmail Software’s administrative interface); and activating those additional Accounts as described in clause [4]. The price charged for additional Accounts is the annual fee prorated until the Renewal Date.

 

SERVICE DESCRIPTION: ATMAIL ON-PREMISES SOFTWARE LICENCE

 

Use of Services provided by atmail is subject to the following:

 

PROHIBITIONS

1.1 Customer and its Users (collectively, “You”) must not use the Service or any part of it:

(a) To infringe, in the course of infringing, or for the purpose of storing any material produced as a result of an infringement of, any Intellectual Property Right of any person;

(b) To circumvent, in the course of circumventing, or for the purpose of storing any material produced as a result of the circumvention of, any technological protection measure or equivalent term in any Relevant Jurisdiction;

(c) In a manner otherwise in breach of any legislation relating to any Intellectual Property Right;

(d) To gain access to any material without the permission of all relevant persons;

(e) In any manner which is in breach of any relevant law in any Relevant Jurisdiction, whether civil or criminal, including laws related to fraud, cybercrime, sedition, harassment, sexual harassment, defamation, stalking, nuisance or assault;

(f) To store or disseminate any material in breach of any laws relating to censorship or content regulation in any Relevant Jurisdiction;

(g) To create or distribute any spam or unsolicited commercial message;

(i) Commercial electronic messages must include information about the individual or organisation who authorised the sending of the message.

(ii) Commercial electronic messages must contain a functional unsubscribe facility.

(iii) An electronic address list produced using address harvesting software must not be supplied, acquired or used.

(h) In a manner intended or likely to: create an unusual workload on any of the equipment used in the course of providing the Service; or adversely affect the provision by atmail or any other person of any service (including services similar to the Services) to any person.

 

OBLIGATIONS

2.1 You must:

(a) Keep secret each username and password you use to access the Services; and

(b) Indemnify atmail against all loss it suffers as a result of each breach of this policy by you.

2.2 You are responsible for all use of this Service through your account. You must ensure that each person who uses this Service through your account complies with these terms and conditions.

 

PERMISSIONS

3.1 Where you post or store any content through the use of the Service you permit atmail to:

(a) Store, distribute and make that content available through the use of the Service to the extent reasonably incidental to the ordinary operation of the Service; and

(b) Authorize third parties to do any of these things.

 

DISCLAIMER

4.1 To the extent permitted by law and except where atmail enters into an agreement with you to the contrary: atmail has no liability to you as a result of any use of, or any content accessed through use of, the Service by you, or by any other person; and all warranties, guarantees and conditions which might otherwise be implied with respect to the supply of the Service are excluded. Where atmail is not able to exclude such a warranty, guarantee or condition, then, to the extent permitted by law, atmail’s liability to you for the breach of such a condition is limited, at atmail’s option, to the resupply of the Service or payment of the cost of having the Service supplied again.

 

INTERPRETATION

5.1 In this policy the following terms have the following meanings:

(a) Intellectual Property Right includes all rights or entitlements (whether arising before or after the execution of this Agreement) with respect to copyright (including moral rights), patent, trade marks, design, circuit layouts, trade or business names, and all rights to the registration of such rights or entitlements anywhere in the world.

(b) Relevant Jurisdictions means each jurisdiction which has a relevant connection between either you, atmail or your activities in the course of using the Services.