1.1 "Provider" is Savicom
1.2 "User" means the person who activates the Savicom account and performs the administrative functions over a mailing list.
1.3 "User Data" means all User preferences, recipient email addresses, scheduled messages, or other data entered into the Savicom software.
1.4 "List Server" means the data storage and software services provided to the User including but not limited to the mail sending service and the recipient list administration service.
1.5 "Physical Server" means the serving computers, hardware and operating system, and software necessary to operate and support the List Server in accordance with this Agreement.
2.0 Scope of Services. We will provide you with the following specific services:
2.1 Provider is not responsible for User Data. The User is ultimately and solely responsible for the backup of User Data.
2.2 List Server Connection and Access. We will provide connection of the List Server System to the Internet, including all telecommunications equipment and connections for the List Server to provide access on a 24-hour-a-day, 7-day-a-week basis, with the exception of scheduled maintenance outages and interruption to Physical Server Connection and Access beyond our control caused by, for example, acts of nature, third-party equipment or transmission failures, or security breaches.
2.3 Hardware, Equipment and Software. You are responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access us. We make no representations, warranties, or assurances that your equipment will be compatible with our service.
3.0 Payment Terms. Except for the "Free" license, you agree to the following payment terms in consideration for the services provided:
3.1 Service Fee. You will pay us a monthly Service Fee for the services we provide under this Agreement according to our current Price Schedule, which is available on our web site or upon request. The Service Fee will be automatically billed until the account is cancelled, regardless of account activity. The Service Fee may be billed to up to five days prior to the start of the month in which service is activated. If you first begin using our services after the first of the month, we will prorate your first month's Service Fee. The Service Fee is subject to adjustment, with notice, according to the current Price Schedule.
3.2 Cancellation. It is the User's responsibility to inform the Provider of any service changes or cancellations by contacting Savicom sales. In the event you cancel your service, you will be charged in full for the entire month in which you canceled your service. If you have pre-paid for services and received a discount, no refund will be issued for pre-paid fees.
3.3 Breach. In the event we terminate this Agreement because of a breach, you will be charged in full for the entire month in which the breach occurred. If you have pre-paid for services and received a discount, no refund will be issued for pre-paid fees.
3.4 Tax. These fees are exclusive of any and all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the services provided under this Agreement.
4.0 Representations and Warranties. Our obligations under this Agreement are conditioned upon the following representations and warranties:
4.1 Compliance with Law. You represent and warrant that you will comply with all applicable state and federal laws in your performance of this Agreement and in the use and operation of the List Server, including laws governing technology, software and trade secrets.
4.2 Authority to Contract. You represent and warrant that you have full authority and right to enter into this Agreement and that there are no conflicting claims relating to the rights granted by this Agreement.
4.3 Non-Infringement. You represent and warrant that your performance of this Agreement and use of the List Server, shall not infringe the copyright, intellectual property right, or other proprietary rights of any third party.
4.4 Our Performance. We represent and warrant that our services shall be performed in a professional and workmanlike manner, and the computer servers will be operated in accordance with our obligations as defined by this Agreement.
4.5 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED ABOVE, WE MAKE NO WARRANTY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, AND ALL SERVICES ARE PROVIDED ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT.
5.0 You expressly agree that use of our List Server is at your own risk.
Neither we, our employees, affiliates, agents, third-party information providers, merchants, licensors or the like, warranty that our service will not be interrupted or error free; nor do we make any warranty as to the correctness of information sent from our service, or the resulting recipients of said information, unless otherwise expressly stated in this Agreement.
5.1 Under no circumstances, including negligence, will we, our officers, agents or anyone else involved in creating, producing or distributing our service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use our service. We will further not be liable for results from mistakes, omissions, interruptions, deletions of files, errors, defects, delays and operation, or transmission or failure of performance whether or not limited to acts of nature, communication failure, theft, destruction or unauthorized access to our records, programs or services. You acknowledge that this paragraph shall apply to all content on or sent via the List Server.
5.2 You agree to indemnify and hold us harmless from any claim resulting from your use or distribution of electronic mail services through the service provided through this Agreement.
5.3 Your exclusive remedy for all damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) will not (a) exceed the actual dollar amount which you paid during the 12-month period prior to the date the cause of action arose, or (b) include any incidental, consequential, extemporary or punitive damages of any kind, including without limitation, loss of data, file, profit, good will, time, savings or revenue.
6.0 Term and Termination. The following describes the effective date, duration and methods of termination:
6.1 Effective Date. The Effective Date of this Agreement is the last date appearing below.
6.2 Duration. This Agreement will commence on the Effective Date and continue on a month-to-month basis.
6.3 Termination for Convenience. Subject to Section 3.3, you may terminate this Agreement at any time for your convenience by providing us with advance written notice.
6.4 Breach or Default. The following constitute a breach or default of this Agreement:
a. your failure to pay the current month's Service Fee by the tenth day of the following month,
b. your violation of Section 8.1 or 8.2,
c. your violation of Sections 4.1, 4.2 or 4.3.
6.5 Special Lien on Personal Property. We retain a special lien on all of your personal property in our possession to secure any payment amount you may owe us under this Agreement.
7.0 Ownership Rights. We acknowledge that all right, title and interest in the User Data shall be solely owned by the User. We own or have licensed all server software. In the event that we elect, at our option, to provide custom software to you, this software will be licensed to you for use only with a Savicom List Server on a non-exclusive basis according to the terms of this Agreement.
8.0 Unsolicited Email and Acceptable Use Policy
8.1 Activities Subject to Immediate Deactivation. Any List Server that is used for Illegal, Abusive or Unethical Activity may be immediately deactivated by us without warning to you. Illegal, Abusive or Unethical Activities include, but are not limited to, unsolicited email as described in sections 8.2, pornography, obscenity, nudity, violations of privacy, hacking, computer virus, gambling, or promotion of gambling, and any harassing or harmful materials or uses, as determined by us. You agree to indemnify and hold us harmless from any claim resulting from your publications or use of Illegal, Abusive or Unethical materials. Although we will make reasonable efforts to alert you to such activities and allow you an opportunity to cure them within a 12-hour period after discovery, we are not required to give notice before deactivating your use of our services if, in our discretion, your use is or results in Illegal, Abusive or Unethical activities. If a List Server is disabled, the regular monthly fees still apply.
8.2 Unsolicited Electronic Mail. You are expressly prohibited from sending unsolicited bulk mail messages ("junk mail" or "spam"). This includes, but is not limited to, the sending of bulk-mailing of commercial advertising, information announcements, and political tracts. Such material may only be sent to those who have specifically requested it. Malicious or threatening email is also prohibited. We reserve the right to immediately deactivate your use of our service if we determine, in our sole discretion, that this activity has taken place.
8.2.1 Housing or Collection of Addresses. The List Server may not be used to collect, or to facilitate the collection of, e-mail addresses without the permission of the corresponding e-mail address recipients. Additionally, addresses collected without permission may not be uploaded to or housed on the List Server. We reserve the right to immediately deactivate your use of our service if we determine, in our sole discretion, that this activity has taken place.
8.2.2 Forging Identity. The List Server may not be used to represent other people or organizations. We reserve the right to immediately deactivate your use of our service if we determine, in our sole discretion, that this activity has taken place.
8.3 Complaints Received. If we determine, at our sole discretion, that you have violated our acceptable use policies, and we received complaints of your violations from either recipients of your messages, their system administrators, or their internet service providers, we may impose a service charge of fifty U.S. dollars (US$ 50) per individual complaint. You hereby authorize us to make such charges automatically, without further authorization from you.
8.4 Liability for Unsolicited Email. Use of our system to send unsolicited email or other abuse of our system can result in damage to our reputation, our systems being blocked from sending messages to recipients, and other harm to our business. As such, you are liable for any such harm, and will be subject to civil action to collect damages to compensate us for such harm.
8.5 Use of Servers Located in the State of California. Our system utilizes mail servers located in the state of California. Violiation of our UCE policies using California mail servers subject you to statutory civil penalties under California Business & Professions Code §17538.45.
9.1 Public Nature of Internet. Please understand that all information submitted on the List Server shall be considered publicly accessible. Important and private information should be protected by you. For example, we are not liable for protection or privacy of messages, email addresses, or other information transferred through the Internet or any other network provider that you may use.
9.2 Privacy of Recipients' Email Addresses. Savicom does not supply list owners with email addresses, nor does Savicom divulge recipients' email addresses to third parties.
9.3 Governing Law and Attorneys' Fees. This Agreement will be interpreted and applied in accordance with the laws of the state of California, without regard to the conflicts of law provisions. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees, whether or not a suit is actually filed.
9.4 Excessive CPU Usage. List Servers which use, in our discretion, CPU processing capacity on the Physical Server in excess of the designed processing capacity will be subject to immediate deactivation.
9.5 Age. You certify that you are at least 18 years of age.
9.6 Transfer. This Agreement is not transferrable.