SERVICES AGREEMENT between SERVERMEISTER (“SERVERMEISTER PART OF TRI SESTI HOLDING B.V.”) and the customer who orders one or more of SERVERMEISTER services (“client” or “Customer”).
1. HOW THIS AGREEMENT WORKS
Client has accepted the agreement by purchasing a SERVICE online based on the services client has chosen and the related fees. The Order will incorporate this Services Agreement, an Acceptable Use Policy and the General Terms and Conditions. It may also incorporate one or more addenda to this Services Agreement if client is purchasing services for which SERVERMEISTER has special legal terms. When SERVERMEISTER uses the term “Agreement” in any of these documents, SERVERMEISTER is referring collectively to all of them.
2. SOME DEFINED TERMS
Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the SERVERMEISTER Mail Services Acceptable Use Policy posted at as of the date client signs the Order.
“Bulk Mail” means email messages of similar content that are sent to more than 30 recipients.
“Business Day” means 8:30 a.m. — 5:30 p.m. Monday through Friday, CET, excluding public holidays in The Netherlands and Europe.
“Confidential Information”means all information disclosed by one of us to the other, whether before or after the Effective Date of the Agreement, that the recipient should reasonably understand to be confidential, including:
for client, the content of email and other information transmitted via SERVERMEISTER Mail Services,
for SERVERMEISTER, unpublished prices and other terms of service, audit and security reports, and proprietary technology, and
for both SERVERMEISTER and client, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
“Effective Date” means the date on which client has submitted an Order for Services and SERVERMEISTER has received client’s payment for the first year’s services.
“Junk Mail” means email that is captured by our mail filter and other email that is reported by client to SERVERMEISTER as undesirable.
“Mail Services” means the SERVERMEISTER Email or other hosted email service or email marketing service described in client’s Order, excluding Support.
“Order” means the SERVERMEISTER online Order for services that details the Hosting Services and/or Supplemental Services client have selected, and that is paid online by client.
“Service” or “Services” means the Hosting Services and any Supplemental Services SERVERMEISTER may provide to client, collectively.
“Supplemental Service” means the services described in Section 5 below, and any other services SERVERMEISTER provides to client other than the Hosting Services.
management of client’s Services by a customer care team that includes individuals trained in the system client selects, and
availability of support 8 hours per day, five days per week, year round.
3. MAIL SERVICES
Contingent on client’s satisfaction of SERVERMEISTER credit approval criteria, SERVERMEISTER will provide the Mail Services client selects as follows:
3.1 Administration. SERVERMEISTER will provision the initial environment unique for each SERVICE. Client will otherwise be responsible for administering client’s Mail Service, including adding mailboxes, adding wireless or other service components, adding storage capacity, managing settings, and configuring spam filters, blacklists delisting, etc.
3.2 Support. SERVERMEISTER will provide Support to client’s designated administrator(s) or technical contacts on the account when the support SERVICE has been ordered and paid. SERVERMEISTER will not provide Support directly to client’s end users unless specifically agreed in an Order.
3.3 Uptime Guarantee. Client’s SERVICE’s Service will be available 100% of the time in a given calendar month, excluding downtime due to scheduled maintenance or promblems which could not be forseen such but not limited to hard- software. Downtime exists when client is unable to send and receive mail as a result of a failure of the SERVERMEISTER network, or are unable to use a material feature of client’s Mail Service. Downtime does not exist if client are unable to use client’s Mail Service as a result of a failure outside of the SERVERMEISTER network, such as client’s connection to the Internet or client’s systems. SERVERMEISTER Email maintenance is currently scheduled for Saturday and Sunday from 12:00 a.m. — 4:00 a.m. CET, and Microsoft Exchange maintenance is currently scheduled for the third Friday of each month from 9:00 p.m. — 2:00 a.m. central time, although SERVERMEISTER does not expect to use each maintenance window. SERVERMEISTER will announce any maintenance that is expected to result in downtime at least 1 day in advance.
4. LIMITATIONS ON SERVICES
4.1 Filtering. SERVERMEISTER provides certain services designed to filter unwanted email, such as spam, phishing scams, and email infected with viruses. Client acknowledge that the technological limitations of the filtering service will likely result in the capture of some legitimate email, and the failure to capture some unwanted email, including email infected with viruses. SERVERMEISTER recommends that client employ additional security measures, such as a desktop virus scanner and firewall, on computers that are connected to the Internet. Email that is quarantined by the filtering system is excluded from the Uptime Guaranty.
4.2 Delivery Failures. SERVERMEISTER will use commercially reasonable efforts to deliver client’s email messages. Third party filtering services may from time to time prevent successful delivery of client’s messages.
4.3 Memory Limitations. Mail that exceeds the storage limit when received may be permanently lost. Client may adjust the storage capacity of client’s individual mailboxes via the control panel, and it is client’s obligation to monitor and adjust the storage capacity of individual mailboxes as needed. An individual email message that exceeds the per-message size limit may also be permanently lost. As of November 2008 the per message size limit per message is 20MB.
4.4 Backups. SERVERMEISTER performs data backups on a “snap shot” basis at a specific moment. Therefore SERVERMEISTER may not create a backup of every item that is sent, received or stored. The backup will only capture those items (including mailboxes and public folders) that are present during the time of the backup. Data on back ups may be retrieved only for a limited number of days. See information in Section 5.3 below regarding Records Retrieval services.
5. SUPPLEMENTAL SERVICES
The following additional terms will apply if client elect to purchase one of the supplemental services described below.
5.1 Migration Services. At client’s request, SERVERMEISTER will provide an advance estimate of fees based on the information client provide to us. However, clients acknowledge that our fee will be calculated on the basis of the actual number of mailboxes and amount of data migrated and may exceed the estimate. Client acknowledge that after SERVERMEISTER begins the migration services SERVERMEISTER may discover technical limitations related to the configuration of client’s data that prevent us from successfully completing the migration. Clients acknowledge that there is special risk that data will be lost during a migration. Clients agree that client will create a reliable back up of all data to be migrated prior to the time that SERVERMEISTER begins the migration. Client agree that SERVERMEISTER is not liable to client for damages resulting from the loss or corruption of client’s information as part of the migration.
5.2 Domain Name Services. SERVERMEISTER does not provide domain name Services but will do this in the near future.
5.3 Records Retrieval. Client will be able to recover deleted messages via the SERVERMEISTER Email administrative control panel for up to fourteen (14) days from the day deleted. Records retrieval services will be performed on a fee basis and will take up to two (2) hours for a deleted item, and up to six (6) hours for an entire mailbox. At client’s written request made at or prior to the termination of client’s Mail Service, SERVERMEISTER will provide a complete copy of client’s mail data then in its possession on a fee basis no later than ten (10) days following the date of the request, provided that all payments on client’s account must be made prior to SERVERMEISTER’s release of the copy of the data to client. Unless client have made such a request, SERVERMEISTER’s obligation to store email messages and other items terminates at the effective date of termination of the Mail Services.
5.4 Archiving Services. SERVERMEISTER will not archive client’s email or other items unless client purchase archiving services. If client elect to purchase archiving services the archiving services will capture only the email that client send or receive after the date that the archiving services are implemented. Upon termination of client’s account for Mail Services, or client’s archiving service, SERVERMEISTER will destroy client’s archived data unless client have made other arrangements with SERVERMEISTER. SERVERMEISTER’s archiving services are designed to help client comply with various regulatory requirements that may be applicable to client. However, clients are responsible for understanding the regulatory requirements applicable to client’s business and for using client’s archiving service in a manner that complies with the applicable requirements.
6. CLIENT’S OBLIGATIONS
6.1 Client must comply with SERVERMEISTER’s Acceptable Use Policy, including the affirmative opt in requirement for bulk mail.
6.2 Client may not use the Mail Services to send Bulk Mail.
6.3 Client must use reasonable security precautions in light of client’s use of the Mail Services.
6.4 Client must cooperate with SERVERMEISTER’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement.
6.5 Client must provide SERVERMEISTER with accurate information to help SERVERMEISTER determine if any tax is due with respect to the provision of the Mail Services.
6.6 Client are responsible for keeping client’s billing contact and other account information up to date.
6.7 Client must pay when due the fees for the Mail Services.
7. PROMISES SERVERMEISTER DOES NOT MAKE
7.1 SERVERMEISTER does not promise that the Mail Services will be uninterrupted, error-free, or completely secure. Client acknowledge that there are risks inherent in Internet connectivity that could result in the loss of client’s privacy, Confidential Information, and property. SERVERMEISTER has no obligation to provide security other than as stated in this Agreement.
7.2 SERVERMEISTER disclaim any and all warranties not expressly stated in the Agreement including the implied warranties of merchantability, fitness for a particular purpose, and non infringement. Client is solely responsible for the suitability of the service chosen. Unless otherwise agreed, all Supplemental Services are performed on an “AS IS, AS AVAILABLE” basis.
8. UNAUTHORIZED ACCESS TO CLIENT’S DATA OR USE OF THE SERVICES
SERVERMEISTER is not responsible to client for unauthorized access to client’s data or the unauthorized use of the Mail Services unless the unauthorized access or use results from SERVERMEISTER’s failure to meet its security obligations stated in this Agreement. Client are responsible for the use of the Mail Services by any employee of client’s, any person to whom client have given access to the Mail Services, and any person who gains access to client’s data or the Mail Services as a result of client’s failure to use reasonable security precautions, even if such use was not authorized by client.
The initial term begins on the Effective Date and continues for the period stated in the Order. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one year each until terminated as provided in Section 10, 11, or 12 or below.
Client may terminate the 12 month term of the Agreement at any time on at least thirty (30) days advance written notice sent to us by registered mail. SERVERMEISTER may terminate for convenience at any time on one hundred and twenty (120) days advance written notice.
11. CLIENT’S RIGHT TO TERMINATE WITHOUT NOTICE
Client may terminate the Agreement without providing thirty (30) days notice as required in Section 10 above if: (1) SERVERMEISTER materially fail to provide the Services as agreed and do not remedy that failure within two days of client’s written notice describing the failure, (2) SERVERMEISTER fail to meet The Promise described in Section 3.4 above, or (3) SERVERMEISTER materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within ten (10) days of client’s written notice describing the failure.
12. OUR RIGHT TO TERMINATE FOR BREACH
SERVERMEISTER may terminate the Agreement for breach on written notice if: (1) SERVERMEISTER discovers that the information client provided to us for the purpose of establishing the Services is materially inaccurate or incomplete, (2) the individual signing the Agreement did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (3) client’s payment of any invoiced amount is overdue and client do not pay the overdue amount within four Business Days of our written notice, (4) client have made payment arrangements via a credit card or other third party and the third party refuses to honor our charges; (5) a credit report indicates client no longer meet our reasonable credit criteria, (6) client use client’s Mail Service in violation of the AUP, or (7) client fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to client describing the failure.
13.1 The fees for the Services will be as stated in the Order (or a url referenced in the Order). Referring to the General Terms and Conditions General Module Article 3.5 SERVERMEISTER may increase fees at any time on ninety (90) days advance written notice to client. Recurring fees will be billed in advance, either monthly, quarterly, or annually, as agreed in an Order. Non-recurring fees, such as migration services and records retrieval, will be billed monthly in arrears.
13.2 Fees are due on receipt of invoices. SERVERMEISTER may suspend all Services (including Services provided pursuant to any unrelated Order or other agreement SERVERMEISTER may have with client) if payment of any invoiced amount is overdue, and client do not pay the overdue amount within four (4) Business Days of our written notice to client’s billing contact. Client agrees that if client’s Service is reinstated after a suspension for non-payment, client will pay a reasonable reinstatement fee not to exceed € 250.00. SERVERMEISTER may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days and SERVERMEISTER brings a legal action to collect, client must also pay SERVERMEISTER’s reasonable costs of collection, including attorney fees and court costs. Client authorizes SERVERMEISTER to obtain a credit report at any time during the term of the Agreement.
13.3 If SERVERMEISTER is required by law to pay taxes on the provision of the Service, client must pay SERVERMEISTER the amount of the tax that is due or provide SERVERMEISTER with satisfactory evidence of client’s exemption from the tax. Fees must be paid in Euro’s. Invoices that are not disputed within one hundred and eighty (180) days of invoice date are conclusively deemed accurate.
14. SUSPENSION OF SERVICES
Client agrees that SERVERMEISTER may suspend Services without liability if:
SERVERMEISTER reasonably believes that the Services are being used in violation of the Agreement;
client does not cooperate with our reasonable investigation of any suspected violation of the Agreement;
client’s Mail Services are accessed or manipulated by a third party without client’s consent, or
as required by law. SERVERMEISTER will give client reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension is based, if such grounds are capable of cure.
15. PRIVACY/CONFIDENTIAL INFORMATION
15.1 Content/Message Routing Data. Client’s email messages and other items sent or received via the Mail Service will include:
the content of the communication (“content”), and
certain information that is created by the systems and networks that are used to create and transmit the message (the “message routing data”). The content includes things like the text of email messages and attached media files, and is generally the information that could be communicated using some media other than email (like a letter, telephone call, CD, DVD, etc.) The message routing data includes information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information, and is generally information that would not exist but for the fact that the communication was made via email.
15.2 Content Privacy. SERVERMEISTER respects client’s privacy. The content of client’s items is client’s Confidential Information and is subject to the restrictions on use and disclosure described below. In addition to those restrictions, SERVERMEISTER agrees that our personnel will not view the content of client’s items except in the specific ways defined below. However, client agree that SERVERMEISTER may view and use the message routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products. In addition, client agree that SERVERMEISTER may disclose message routing data to third parties in aggregate statistical form, provided that SERVERMEISTER does not include any information that could be used to identify client.
15.3 Our Limited Rights to View and Use Client’s Content. Client agrees that our personnel may view the content of client’s email and other items for the following purposes:
as necessary to respond to client’s specific support request;
to ensure that back-ups are being performed properly;
for Bulk Mail, to ensure compliance with our requirements for Bulk Mail stated in the Agreement, including the Acceptable Use Policy;
as appropriate to the exercise of our rights to use and disclose client’s Confidential Information as described below in this Section; and
for Junk Mail, to improve our email filter.
If SERVERMEISTER uses third party vendors to help us provide Services to client, SERVERMEISTER may permit those vendors to view and use client’s email content for the same purposes described above, provided that the vendors are subject to confidentiality and privacy restrictions at least as stringent as those stated in this Services Agreement. In addition, SERVERMEISTER may share the content of client’s Junk Mail with independent third party abuse agencies and trade groups for the purpose of assisting in industry initiatives to control undesirable email.
Client acknowledges that SERVERMEISTER is required to establish an [email protected]’sdomain.com and [email protected]’sdomain.com address for each of client’s domains. SERVERMEISTER personnel will review the content of all mail received at these addresses. Client may configure client’s Mail Service such that mail is not received at these addresses but is instead forwarded to someone within client’s organization.
SERVERMEISTER WILL NOT EMPLOY TECHNOLOGY TO READ CLIENT’S EMAIL MESSAGES IN ORDER TO TARGET, DISPLAY OR SEND MARKETING ADS BASED ON THE CONTENT OF THOSE EMAIL MESSAGES.
15.4 Usage Data. SERVERMEISTER collects and stores information related to client’s use of the Services, such as use of SMTP, POP3, IMAP, and filtering choices and usage. Client agrees that SERVERMEISTER may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that SERVERMEISTER does not include any information that could be used to identify client.
15.5 Confidential Information. SERVERMEISTER and client agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
to our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in this Services Agreement,
to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the Confidential Information reflects conduct that may violate applicable law;
as required by law; or
in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
16. LIMITATION ON DAMAGES
16.1 SERVERMEISTER is not liable to client for failing to provide the Services unless such failure results from a breach of the Uptime Guarantee, or results from our gross negligence, wilful misconduct, or intentional breach of the Agreement. The Euro credits stated in the Uptime Guarantee are client’s sole and exclusive remedy for our failure to meet the Uptime Guaranty.
16.2 Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
16.3 Client hereby release SERVERMEISTER and its employees, agents, affiliates and third party suppliers from any liability for damages arising from the failure of SERVERMEISTER’s filtering services to capture unwanted email or from the capture of legitimate email, or from a failure of client’s email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient’s email service provider.
16.4 Notwithstanding anything in the Agreement to the contrary, except for claims based on our willful misconduct, the maximum aggregate monetary liability of SERVERMEISTER and any of its employees, agent, suppliers, or affiliates, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall not exceed three times the monthly recurring fee payable under the Order(s) in effect for the Mail Service at the time of the occurrence of the event(s) giving rise to the claim.
17.1 If client, client’s affiliates, or any of client’s or their respective employees, agents, or suppliers (the “Customer Indemnitees”), is faced with a legal claim by a third party alleging that the Mail Services infringes on the patent or copyright of a third person, then, subject to the limitations stated in Section 17 above, SERVERMEISTER will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on the Customer Indemnitees as a result of the claim.
17.2 If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “SERVERMEISTER Indemnitees”) is faced with a legal claim by a third party arising out of client’s actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP of this Services Agreement, then client will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on the SERVERMEISTER Indemnitees as a result of the claim. Client’s obligations under this subsection include claims arising out of the acts or omissions of client’s employees, any other person to whom client have given access to the Mail Services, and any person who gains access to the Mail Services as a result of client’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by client. If client resell the Services, the grounds for indemnification stated above also include any claim brought by client’s customers or end users arising out of client’s resale of the Services.
17.3 Client must also pay reasonable attorney fees and other expenses SERVERMEISTER incurs in connection with any dispute between persons having a conflicting claim to control client’s account with us.
17.4 If either of us receives notice of a claim that is covered by this Section, the notice must be promptly forwarded to the financially responsible party (the “Indemnifying Party”). The Indemnifying Party will be allowed to conduct the defense of the matter, provided that it uses due care and diligence, and provided that its decisions regarding the defense of the matter are reasonable and are promptly communicated to the party against whom the claim is made (the “Indemnified Party”). The Indemnifying Party’s choice of counsel to defend the claim shall be subject to the approval of the Indemnified Party, not to be unreasonably withheld. The Indemnifying Party may not settle the claim without the consent of the Indemnified Party, not be unreasonably withheld. The Indemnified Party shall provide such information and assistance as the Indemnifying Party may reasonably request, at the expense of the Indemnifying Party. The Indemnified Party may, at its own expense, participate in the defense of the matter with counsel of its choosing.
18. MICROSOFT SOFTWARE
In addition to the terms of our Agreement, client’s use of any Microsoft® software is governed by Microsoft’s license terms. If client resell any part of the Mail Services that includes Microsoft software then client must include these Microsoft terms in a written agreement with client’s customers.
19. UNSUPPORTED SERVICE ELEMENTS
If SERVERMEISTER designates any service element as ‘unsupported,’ ‘non-standard,’ ‘one-off’ or with like term in the Service Order or elsewhere, then SERVERMEISTER makes no representation or warranty whatsoever regarding the service element. Client agrees that SERVERMEISTER shall not be liable to client for any loss or damage arising from the provision of the unsupported service element. The Service Level Guaranties shall not apply to the unsupported service element, or any other aspect of the Services that is adversely affected by the unsupported service element. Unsupported service elements include the Entourage mail client.
20. OTHER PEOPLE’S PRODUCTS AND SERVICES
SERVERMEISTER may from time to time recommend or arrange for client to purchase or license third party software, services or other products that are not included as part of the Mail Services. SERVERMEISTER MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING SUCH THIRD PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND AS BETWEEN CLIENT AND SERVERMEISTER, SUCH SERVICES ARE PROVIDED “AS IS.” Client’s use of any third party software, services, and other products is governed by the terms of client’s agreement with the third party.
21. WHO MAY USE THE SERVICE
Client may resell the Mail Services only if client have been authorized by SERVERMEISTER to resell the Mail Services, and then subject to the terms stated in the Reseller Addendum. Client may permit client’s subsidiaries and affiliated companies to use the Services if client wish, but client are responsible for use of the Services by any third party to the same extent as if client were using the Services himself. SERVERMEISTER will provide support only to client, not to any other person client authorize to use the Services. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
22. CHANGES TO THE ACCEPTABLE USE POLICY and PRIVACY TERMS
SERVERMEISTER may change our Acceptable Use Policy and Section 17.3 (Our Limited Right to View and Use Client’s Content), provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of client’s Agreement will become effective as to client upon the first to occur of:
client’s execution of a new/additional Order for client’s account that incorporates the revised AUP or MSA by reference, or
thirty (30) days following our notice to client describing the change. If the change materially and adversely affects client, client may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective as to client and SERVERMEISTER will not enforce the change as to client for thirty (30) days following the date of client’s notice. If client terminate client’s Service because the change adversely affects client, SERVERMEISTER may decide to waive that change as to client and keep client’s Agreement in place for the remainder of the term.
Client’s routine communications regarding the Services should be sent to client’s SERVERMEISTER account team using client’s SERVERMEISTER control panel. If client wants to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, client should send it by electronic mail and registered mail to:
1014BV, AMSTERDAM – THE NETHERLANDS
SERVERMEISTER’s routine communications regarding the Services and legal notices will be sent to the individual(s) client designate as client’s contact(s) on client’s account either by electronic mail, regular mail, or overnight courier, except that SERVERMEISTER may give notice of an amendment to the AUP or Section 17.3 (Our Limited Right to View and Use Client’s Content) by posting the notice on client’s SERVERMEISTER control panel. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time delivered, except that notices of AUP and Section 17.3 amendments are deemed delivered as of the first time that client log on to client’s SERVERMEISTER management console after the time that the notice is posted. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
24. IP ADDRESSES
Upon expiration of termination of the Agreement, client must discontinue use of the Mail Services and relinquish use of the IP addresses and server names assigned to client by SERVERMEISTER in connection with Services, including pointing the DNS for client’s domain name(s) away from SERVERMEISTER Services.
Client may not assign the Agreement without SERVERMEISTER’s prior written consent. SERVERMEISTER may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and SERVERMEISTER may transfer client’s Confidential Information as part of any such transaction. SERVERMEISTER may use third party service providers to perform all or any part of the Services, but SERVERMEISTER remains responsible to client under this Agreement for work performed by its third party service providers to the same extent as if SERVERMEISTER performed the Services itself.
26. SOME AGREEMENT MECHANICS
If client sign multiple Orders for a single Mail Service account — for example, to add additional services, then the Services Agreement, Acceptable Use Policy and ICT~Office General Terms and Conditions referenced in the last signed Order will govern the entire account.
Except for amendment to the AUP and Section 17.1 (Content Privacy) as described above, the Services Agreement and Acceptable Use Policy may be amended only by a formal written agreement signed by both parties.
An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, any addendum to the Services Agreement, the Services Agreement, the Acceptable Use Policy and the ICT~Office General Terms and Conditions. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect and SERVERMEISTER agrees that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if SERVERMEISTER has waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.” Sections 17, 18, 19, 25 and 30, and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement. If client have made any change to the Agreement documents that client did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which taken together will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
The Agreement is the complete and exclusive agreement between client and SERVERMEISTER regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.