The following agreement (the “Agreement”) is between NetGovern Inc. (also doing business as NetMail Inc.) and you, the Client, for cloud services (the “Services”) of any NetGovern product, whether or not the Services are provided through a third-party cloud infrastructure and/or managed by a third-party licensor.
The Services are offered on a per-user or per-mailbox basis for an initial period of one (1) year or otherwise defined in the sales proposal. Thereafter, this Agreement automatically renews itself on the same terms and conditions unless one of the parties gives a different notice to the other party at least thirty (30) days in advance. By using the Services, the Client agrees to the terms and conditions hereinafter.
SLA (Service Level Agreement)
The Services will be available and operational to the Client with an uptime guarantee (the “SLA Target”) of at least 99.9% of the time in any calendar month. If NetGovern fails to meet this SLA Target in any calendar month, and if the Client fulfills all obligations set forth in this Agreement, the Service fees for that month will be credited and refunded as a free one month extension to the original duration of the Agreement. If the uptime is less than 95% for any calendar month, then the Service fees for that month and all previous months since the beginning of the term will be credited and refunded as a free extension of the same duration to the original term of the Agreement. The Client agrees that this policy is the sole and exclusive remedies for not meeting the SLA Target. Scheduled or emergency maintenance and upgrades are excluded from downtime calculations, as are issues relating to end-user Internet connectivity or general Internet congestion.
Ownership, Confidentiality & Location of Data
The Client retains all title and rights to its data (the “Data”) stored in the cloud for the purposes of the Services. This Agreement does not grant NetGovern any right to the Data. The Client grants permission to NetGovern and its licensors to use the Data only as necessary to provide the Services. If the Client is using the Services on behalf of another party, it warrants that it has the authorization to do so. NetGovern will solely access the Data for the purposes of delivering the Services. Access to the data will be strictly limited to technicians who need such access in order to render the Services. NetGovern will not share, disclose, or make available any of the Data including email addresses to any third party except as required by law, regulation or court order. However, NetGovern may monitor the Services from time to time and use anonymized and aggregated information to improve the Services.
NetGovern maintains industry best practices as well as commercially appropriate physical, administrative and technical safeguards to protect the Data. Passwords that allow the Client and its users to access the Data via the Services web-based interface are completely private. These passwords are not visible in the cloud infrastructure and are not known or accessible to NetGovern technicians.
If the Client decides not to renew the Services, NetGovern will provide the Data back to the Client upon request for a nominal fee to cover the data center egress costs. Unless otherwise instructed by the Client within thirty (30) days after the termination of the Services, NetGovern will automatically and irrevocably destroy the Data and will only provide if duly requested a report confirming that such deletion has been made. By using the Services, the Client acknowledges that NetGovern can not be held responsible for any loss or damage in connection with such destruction of the Data.
The Client hereby consents to the location and processing of Data in both Canada and the United States of America.
The Client WILL NOT tamper with the security of the Services, which includes, but is not limited to, accessing any information other than the Client’s own Data, attempting to probe vulnerabilities in the systems hosting the Services, hacking, spoofing, mailbombing, transmitting or propagating any virus, worm, spyware, adware or any other malware or malicious code. Client MAY NOT lease, distribute, sell, or otherwise make Services available, intentionally or unintentionally, to any third party, without prior written consent from NetGovern.
The Services are billed on a per user basis regardless of the amount of data per user. However, in order to ensure a high performing and functional service and to be fair to other users, the overall aggregate amount of data in your tenant is limited to a maximum of 30GB per user and per type of connector (files, emails, etc…). If the overall aggregate amount of data does exceed this maximum, additional fees will be charged on the excess.
In cases where the Data are emails messages, the Clients warrants that these messages DO NOT:
- Use or contain invalid or forged headers;
- Use or contain domain names that are invalid or non-existent;
- Employ any technique to misrepresent, hide or otherwise obscure any information that identifies the point of origin or the transmission path;
- Use other means of deceptive addressing;
- Use a third party's internet domain name or equipment without its consent;
- Contain false or misleading information, in the subject line or otherwise;
- Be sent to an address obtained via any surreptitious methods such as harvesting;
- Be bulk or unsolicited email (spam).
NetGovern will not be held responsible if a Client's domain name is blocked by ISPs for sending spam.
For all types of data (including email messages), the Client warrants that the Data DOES NOT:
- Contain threatening, abusive, harassing, or defamatory material;
- Invade someone’s privacy or otherwise violate its legal rights;
- Contain vulgar, obscene, indecent or otherwise unlawful material;
- Infringe the intellectual property right(s) of a third party in any way;
- Contain viruses or malicious files;
- Compromise NetGovern’s infrastructure, or disable, overburden, impair the Services, or render them unusable for any other user.
In addition, the Client, warrants that the Data DOES NOT violate any applicable local, state, national or international law or regulation, in the Client’s country of residence (or recipient's in case of an email) norany of the following laws or regulations:
- The Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act) (15 U.S.C. § 7701 et seq.);
- The U.S Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227);
- the Do-Not-Call Implementation Act of 2003 (15 U.S.C. § 6152 et seq.; originally codified at § 6101 note);
- The Directive 2000/31/EC of the European Parliament and Council of 8 June 2000, on certain legal aspects of information society services, in particular, electronic commerce in the Internal Market ('Directive on Electronic Commerce'), along with the Directive 2002/58/EC of the European Parliament and Council of 12 July 2002, concerning the processing of personal data and the protection of privacy in the electronic communications sector ('Directive on Privacy and Electronic Communications');
- Regulations promulgated by the U.S. Securities Exchange Commission, and any rules of national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ;
- The Personal Information Protection and Electronic Documents Act (PIPEDA) (S.C. 2000, c. 5);
- The Canada's Anti-Spam Legislation (CASL) (S.C. 2010, c. 23)
Violation of any of the prohibited uses above is a justifiable cause of immediate suspension of the Services provided.
Limitation of Liability
NetGovern is not responsible for unauthorized access or modification of the Data while in electronic transmission to or from the NetGovern cloud infrastructure on which the Services are rendered. NetGovern is not responsible for missing, corrupted or compromised information that results from incorrect transmission or misuse of the Services. NetGovern is not liable to compensate the Client for delay of service beyond the remedies outlined in the SLA terms above.
NetGovern will not be liable for any indirect, incidental or consequential damages of any type, including but not limited to any consequential, incidental, indirect or special damages or loss, lost profits or lost data, arising out of or in connection with this Agreement. Under no circumstances will NetGovern be liable to the Client for any amount in excess of the subscription fee for one year.
Delivery of the Services does not imply that NetGovern acknowledges that the Data complies with the requirements of this Agreement. Therefore, NetGovern disclaims all liability arising from any breach of the Client’s Data, or any civil or criminal offense brought against the Client in respect of any of the prohibited uses listed above.