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END-USER SERVICES AGREEMENT
This
End-User Services Agreement (“Agreement”) is an agreement between you, an
individual or an individual acting on behalf of your employer, a corporation,
partnership, or other legal entity that will be using Fa. Altim’s
services (“User”), Fa. Altim, Schillerstrasse 1, 32602
1.
ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT
The
Services, provided by Company, are provided to User under the terms and
conditions of this Agreement and Exhibit A hereto, any amendments to this
Agreement and/or Exhibit A, and any operating rules or policies that may be
published from time to time by Company, all of which are hereby incorporated by
reference. This Agreement comprises the entire agreement between User and
Company regarding the use of Services and supersedes any prior agreements
pertaining to the subject matter contained herein.
2.
DESCRIPTION OF SERVICES
Company is
providing User with any or all of the following services: (a) email delivery;
(b) software to submit emails; and (c) any other services which Company
may elect to provide on behalf of Client in the future.
Company also reserves the right to modify or
discontinue, temporarily or permanently, the Services with or without notice to
User. User agrees that Company and their third party service providers shall
not be liable to User or any third party for any modification or discontinuance
of the Services.
3. USER'S
REGISTRATION OBLIGATIONS
User must
be at least thirteen (13) years old to register for the Services. In
consideration of use of the Services, User agrees to: (a) provide true,
accurate, current, and complete information about User as prompted by the
registration form; and (b) to maintain and update this information to keep it
true, accurate, current, and complete. If any information provided by User
("Registration Data") is untrue, inaccurate, not current, or
incomplete, Company has the right to terminate Account and refuse any
and all current and/or future use of the Services.
4. USE OF
REGISTRATION DATA
User
acknowledges that Registration Data may to be shared between Company and any
3rd Party service providers if necessary to provide the Services. Company
agrees not to contact User if User informs Company of User's preference not to
be contacted.
This
Agreement includes the terms and conditions of Company's Privacy Policy, a copy
of which is located at http://www.RapidSMTP.com/privacy.htm, and which is
hereby incorporated by reference. In the event that there exists any
inconsistency between this Agreement and the Privacy Policy, the terms and
conditions of the Privacy Policy shall take precedence.
5. USER
CONTENT
Company
considers email transmitted via the Services to be the private correspondence
of the sender. Company will not monitor, edit, or disclose the contents of a
User's private communications, except that User agrees that Company may do so:
(a) as required by law; (b) to comply with legal process; (c) if necessary to
enforce this Agreement; (d) to respond to claims that such contents violate the
rights of third parties; or (e) to protect the rights or property of Company,
its third party service providers, or others, or (f) if there are suspicious
facts that User uses the Services for sending unsolicited emails (“spam”) (see 8.
for a definition).
User
understands and agrees that technical (and sometimes manual) processing of
email communications and any other information supplied by User is and may be
required: (a) to send and receive messages; (b) to conform to the technical
requirements of connecting networks; (c) to conform to the limitations of the
Services; or (d) to conform to other, similar technical requirements.
User acknowledges
and agrees that Company, Client and their third party service providers do not
endorse the content of any User communications and are not responsible or
liable for any unlawful, harassing, libellous, privacy invading, abusive,
threatening, harmful, vulgar, obscene, indecent, tortuous, or otherwise
objectionable content, or content that infringes or may infringe the
intellectual property or other rights of another.
6. USER
NAME, MEMBER ACCOUNT, PASSWORD AND SECURITY
User be
provide a username and password for the Account by company after completing the registration
process for the Services.
User is
responsible for maintaining the confidentiality of the password and Account,
and is fully responsible for all activities that occur under User's Account.
User agrees to immediately notify Company of any unauthorized use of User's
password or Account or of any other breach of security.
6.1.
PAYMENT
User can sign-up for the Services on a monthly
subscription basis. An Account can only be created or upgraded after receiving payment.
Payments cannot be refunded. User can terminate the subscription and Account any time by sending an email indicating that he wants the subscription
to be terminated.
7. USER
CONDUCT
User agrees
to abide by all applicable local, state, national, and international laws and
regulations during use of the Services, and agrees not to interfere with the
use and enjoyment of the Services by other users. User agrees to be solely
responsible for the contents of User's private and public communications,
whether uploaded, posted, emailed, or otherwise transmitted through the
Services.
User
agrees: (a) not to use the Services for illegal purposes; (b) not to interfere
with or disrupt the Services or servers or networks connected to the Services;
(c) to comply with all requirements, procedures, policies, and regulations of
networks connected to the Services; (d) not to resell the Services or use of or
access to the Services; and (e) to comply with all applicable laws regarding
the transmission of technical data exported from Germany.
User agrees
not to upload, email, or otherwise transmit through the Services: (a) any
unlawful, harassing, libellous, privacy invading, abusive, threatening,
harmful, vulgar, obscene, indecent, tortuous, or otherwise objectionable
material of any kind; (b) any material that violates the rights of another,
including, but not limited to, the intellectual property rights of another; (c)
any material that violates any applicable local, state, national, or
international law or regulation; or (d) unsolicited or unauthorized
advertisements, promotional materials, "junk mail," unsolicited
emails (“spam”), (see 8. for a definition of unsolicited emails) "chain
letters," or other forms of solicitation. User agrees not use misleading email header information. User agrees to set email header information which must be accurate and identify the person, who initiated the email. User agrees not to use deceptive subject lines. User agrees to use subject lines, which do not mislead the recipient about the contents and subject matter of the message. If User sends commercial emails, User agrees to clearly mark these emails as an advertisement and to include User's valid physical postal address in the email message. User agrees to not use tracking of opened emails, clicked links or geographical location of recipients if User's recipients have not agreed to or have not been informed of this practice. User agrees to assure that tracking of opened emails, clicked links or geographical location of recipients confirms to User's local laws. User must include the Services' unsubscribe link in all emails transmitted through the Services (see 20. for a definition of unsubscribe link). User agrees not to attempt to gain
unauthorized access to other computer systems or networks connected to the
Services. User acknowledges and agrees that Company may ban User from future
use of the Services if User does not comply with Company's standards of
conduct, even if User attempts to use the Services through another Client or
under a different name. User acknowledges that Company may terminate the Services
at its sole discretion anytime for no specific reason, e.g. if emails sent by
User promotes products, services or web sites that does comply with the
ethic standards of Company. User acknowledges and agrees that Company may recover damages from User if User
violates these terms and may charge a penalty of up to $10,000 USD per incident.
8.
UNSOLICITED EMAILS
9.
UNSUBSCRIPTION OF RECIPIENTS
The Services
include an automatic way to unsubscribe from User’s newsletter using
unsubscribe links. User agrees to place the Services’ unsubscribe link in all
emails transmitted through the Services. The unsubscribe link may not be made invisible, unreadable by using
a small font size and its function may not be misrepresented. User may only use
one way of unsubscription which is unsubscription method provided by the Services.
If recipient decides to subscribe again, the Services’ subscription form must be
used in order to send emails to this recipient again. Manual subscriptions of
these recipients will not work.
10. ACCOUNT LIMITATIONS
Account is limited in the size and the maximum number of emails, which can be processed per calendar month. The maximum size of emails is 100,000 byte including header information, emails message (plain text part, HTML part and personalization data) and email attachments. The maximum number of emails, which can be processed per calendar month, depends on the Service's plan for which has User has signed up.
11.
INDEMNITY
User agrees
to indemnify and hold Company and their third party service providers, and
their parents, subsidiaries, affiliates, officers, and employees, harmless from
any claim or demand, including reasonable attorneys' fees, made by any third
party due to or arising out of User's use of the Services, User's connection to
the Services, User's violation of this Agreement, or User's violation of any
rights of another party.
12. STORAGE
OF COMMUNICATIONS
Company and
its third party service providers assume no responsibility for the deletion or
failure to store email messages, communications, or other content maintained or
transmitted through the Services. Company may establish in its sole discretion
an upper limit on the extent of message storage it will maintain for User.
13.
TERMINATION
(a) User
agrees that Company or its third party service providers may terminate User's
password, Account, or use of the Services if Company or its third party service
providers believe: (i) that User has violated or acted inconsistently with the
letter or spirit of this Agreement; or (ii) that User has violated the rights
of Company or its third party service providers or other Users or parties. User
further agrees that Company and its third party service providers may terminate
User's password, Account, or use of the Services when User fails to provide
payment for the service.
(b) User
agrees Company and Client may immediately delete User's Account and all related
information, communications, and files, and may bar any further access to such
account, communications, files, or the Services under any provision of this
Agreement. User also acknowledges and agrees that termination of any of the
Services may be effected without prior notice.
(c) User acknowledges that Company may
discontinue the service anytime without further notice.
14. LINKS
The
Services may provide, or users may include in email, links to other Web sites
or resources. However, User agrees not to include in email (or elsewhere via
the Services) any "deep link" which leads to a web page, other than
the home page, of another party's web site unless such a link is authorized by
the owner of that web site. User acknowledges and agrees that Company and its
third party service providers are not responsible for the availability of such
external sites or resources, or for User's use of deep links, and that Company,
Client, and their third party service providers do not endorse and are not
responsible or liable for any content, advertising, products, or other
materials on or available from such sites or resources.
15.
COMPANY'S PROPRIETARY RIGHTS
User
acknowledges and agrees that content, including, but not limited to, text,
software, music, sound, photographs, graphics, video, or other material
contained in sponsor advertisements or information presented to User through
the Services or third party advertisers is protected by copyrights, trademarks,
service marks, patents, or other proprietary rights and laws. User acknowledges
and agrees that User is permitted to use this material and information only as
expressly authorized by Company or advertisers, as applicable, and may not
copy, reproduce, transmit, distribute, or create derivative works of such
content or information without such express authorization.
16. EXCLUSIVITY
User is not allowed to use any software provided by Company with servers other than those provided by Company.
17. FREE
ACCOUNTS
Company
offers free accounts for testing purposes. One free Account may be created by
User and domain. For sign up an email address must be used which matches the domain of User's homepage. Free and shared email providers are not eligible for sign up. Emails sent through a free Account may only contain links pointing to User's homepage. A free Account is a time limited beta version (have a look
at 15.) BETA VERSION). Company reserves the right to cancel a free Account at
any time. In no circumstances may Company be made responsible for any damaged
caused by usage of the Services or non availability of the Services. User has no right to receive a free Account. Free accounts are a time limited promotion
which may be cancelled at any time. Company may terminate a free Account, which has not been used for longer than 30 days.
18. BETA
VERSION
Company may
declare versions of the Services as "beta versions". Company makes no
guarantees regarding any function or availability of the Services. Beta versions may
not be usable at all. Beta versions may contain programming errors leading to
data loss, data corruption, loss of sent emails or other serve unexpected
behaviour. User agrees to backup his data prior to use beta versions and to
verify all actions taken by the Services. In no circumstances may Company be made
responsible for any damaged caused by usage of the Services or non availability of
the Services.
19.
ACCURACY OF STATISTICS AND REPORTS
There is a
technical uncertainty of the statistics provided by the Services. Statistics of the
Delivery Report are created by interpreting the response code of receiving
email servers. If an email has been successfully sent, it still might not reach
the recipient’s inbox due to filters applied by the receiving side. Statistics
for Opened Emails are created by counting the number of load requests of an
invisible image added to the email body. Some email clients prevent to load
this image and thus these recipients will not appear in the statistics.
20. CLICK
REPORTS
If User
decides to activate tracking of clicked links, the Services will replace links with
redirection links pointing to Company’s web servers. In no circumstances may
Company be made responsible for the linked content. These redirection links are
just for statistical tracking and the linked content does not reflect the
opinion of Company at all. Company’s web servers might be non functional or
overloaded for a period of time, so the links of User’s email will not be
accessible. In no circumstances may Company be made responsible for damages
caused by non availability of User’s linked content. User may not use this
feature, if availability of User’s linked content must be guaranteed.
21. BILLING
User is
billed by processed and not by sent emails. For User’s transparency User is
only billed for one email, even if an email needs to be sent more than one time
due to temporary failures of the receiving email server. If an email’s
recipient is known to be invalid (list “Permanent Error”) or has unsubscribed
(list “Unsubscribed”) or is stored more than one time in User’s database (list
“Duplicate Address”) this email will not be sent, but it is accounted as an
processed email and is thus billed.
22. DESKTOP
SOFTWARE
User may
use software provided by Company only as long as User has a valid Account. If User cancels his account or if User’s account is
suspended, deactivated or cancelled by Company, User must remove all software provided by Company within 3 days from all his computers.
23.
DISCLAIMER OF WARRANTIES
(a) USER
EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT USER'S SOLE RISK. THE SERVICES
ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
(b) COMPANY
AND ITS THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT.
(c) COMPANY
AND ITS THIRD PARTY SERVICE PROVIDERS MAKE NO WARRANTY THAT THE SERVICES WILL
MEET USER'S REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY,
SECURE, OR ERROR FREE; NOR DOES COMPANY OR ITS THIRD PARTY SERVICE PROVIDERS
MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE
SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED
THROUGH THE SERVICES, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.
(d) USER
UNDERSTANDS AND AGREES THAT ANY INFORMATION, CONTENT, DATA, OR OTHER MATERIAL DOWNLOADED
OR OTHERWISE OBTAINED THROUGH OR FROM THE SERVICES IS OBTAINED AT USER'S OWN
DISCRETION AND RISK, AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO
USER'S COMPUTER SYSTEM OR ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF
SUCH MATERIAL OR DATA.
(e) COMPANY
AND ITS THIRD PARTY SERVICE PROVIDERS MAKE NO WARRANTY REGARDING ANY GOODS OR
SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE SERVICES OR ANY TRANSACTIONS
ENTERED INTO THROUGH THE SERVICES.
(f) NO
ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM COMPANY
OR ITS THIRD PARTY SERVICE PROVIDERS, OR THROUGH OR FROM THE SERVICES, SHALL
CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
(g) SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THEREFORE SOME
OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO SOME USERS.
24.
LIMITATION OF LIABILITY
(a) USER
AGREES THAT COMPANY AND ITS THIRD PARTY SERVICE PROVIDERS SHALL NOT BE LIABLE
FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM
THE USE OR THE INABILITY TO USE THE SERVICES, OR FOR COST OF PROCUREMENT OF
SUBSTITUTE GOODS AND SERVICES, OR RESULTING FROM ANY GOODS OR SERVICES
PURCHASED OR OBTAINED, OR FROM MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO
THROUGH OR FROM THE SERVICES, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR
ALTERATION OF USER'S TRANSMISSIONS OR DATA, INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLES, EVEN IF COMPANY
OR ITS THIRD PARTY SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
(b) USER
FURTHER AGREES THAT COMPANY AND ITS THIRD PARTY SERVICE PROVIDERS SHALL NOT BE
LIABLE FOR ANY DAMAGES ARISING FROM INTERRUPTION, SUSPENSION, OR TERMINATION OF
SERVICES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, SPECIAL
CONSEQUENTIAL, OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION, OR
TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR
ADVERTENT.
(c) User
acknowledges that Pursuant to Section 512 of the Digital Millennium Copyright
Act, Company has a policy providing for termination of the Services to account
holders who are repeat offenders. However, USER ACKNOWLEDGES AND AGREES THAT IN
NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT,
INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES, OR LOST PROFITS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR
SERVICES, ARISING OUT OF COMPLIANCE OR REASONABLE ATTEMPTS TO: (i) COMPLY WITH
GERMANY COPYRIGHT ACT; OR (ii) SATISFY REQUIREMENTS TO QUALIFY FOR THE SAFE
HARBORS DESIGNATED IN SECTION 512 OF THE DIGITAL MILLENNIUM COPYRIGHT ACT.
(d) IN NO
EVENT SHALL COMPANY BE LIABLE FOR ANY AND ALL MATTERS RELATING TO THIS
AGREEMENT FOR ANY AGGREGATE AMOUNT IN EXCESS OF $50 USD.
(e) SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO SOME USERS.
(h) Company
may place limits on mail a user can send in a given period of time in order to
protect the health of the company's network. These limitations may be different
by the Account type user has ordered.
25.
AMENDMENT
Company may
modify this Agreement at any time, and such modifications shall be effective
immediately upon posting or other method of notification to User, which notice
may be provided on the Web pages through which User accesses or uses the
Services. User's continued access or use of the Services shall be deemed to be
User's conclusive acceptance of the modified Agreement.
26. GENERAL
Company's
third party service providers are intended beneficiaries of this Agreement.
This Agreement and the relationship between User and Company shall be governed
by the laws of
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