In the Agreement, "we", us" and "our" refer to Elite Email Inc. (“Elite Email”). "you" or "your" refers to the Client.
The "Service" contracted for in this agreement are Elite Email cloud base applications and related services, operated by Elite Email Inc. Elite Email provides individuals and organizations a variety of tools, features and services related to all forms of marketing and hosting.
After a free trial period has completed, if applicable, as consideration for the Services, you agree to pay to us all applicable fees as specified for the service package indicated. All fees payable hereunder are non-refundable. Charges on your credit card statement by Elite Email will be displayed as "Elite Email.com" or a similar variation.
4. ACCURACY OF INFORMATION
As further consideration for the Services, you agree to:
(i) provide current, accurate and complete information about you ("Account Information"), and
(ii) maintain and update this information as needed to keep it current, complete and accurate.
You, by transacting for this Service represent that your Account Information is accurate and complete.
5. TERM OF AGREEMENT
You agree that this Agreement will remain in full force during any free trial period and any period paid for by you. Under usual circumstances, either party may cancel the service prior to the termination date of the current term with proper notice. While every reasonable effort is made to contact the Client when services are unpaid, if this situation persists for a period exceeding 60 days, the Client’s data and information may be deleted by Elite Email without formal notice. Furthermore, Elite Email has the right to suspend services if any fees are outstanding for the service.
6. MODIFICATIONS TO AGREEMENT
You agree, during the period of this Agreement, that we may: (1) revise the terms and conditions of this Agreement; and (2) change the service provided under this Agreement. Any such revision or change will be binding and effective immediately on posting of the revised Agreement or change to the service on our web site, or on notification to you by email or regular mail as per the Notices section of this agreement. You agree to review our web site, including the Agreement, periodically to be aware of any such revisions.
If you do not agree with any revision to the Agreement, you may terminate this Agreement at any time by providing us with notice by email or regular mail as per the Notices section of this agreement. Notice of your termination will be effective on receipt and processing by us. You agree that, by continuing to use the Service following notice of any revision to this Agreement or change in service, you shall abide by any such revisions or changes.
7. CLIENT ACCOUNT
Your Primary Account and any Secondary Accounts allow you to gain access to all applications and data. Please safeguard this information from any unauthorized use. In no event will we be liable for the unauthorized use or misuse of this information.
8. SITE LEGITIMACY AND LEGAL USE
You agree that you are aware and will follow any legislation from any level of government that pertains to the Services being used. This includes complying with legislation based on where you are located, where recipients of any messages sent from the Service are located and where Elite Email is located. For further clarity, this includes Canada’s Anti-Spam Legislation (“CASL”) and the United States CAN-SPAM Act. Elite Email will NOT be held responsible for any breach of CASL, CAN-SPAM or any other spam legislation whatsoever whether inforced by a governing agency or any other agent or party. You agree that any penalty, fine or any other discipline for breach of CASL, CAN-SPAM or any other legislation will be your sole responsibility. You further agree to indemnify Elite Email from any penalty of any kind whatsoever that arise from your breach of CASL, CAN-SPAM or any other spam legislation. Please review the links and names below to ensure that you are aware of the legislation that may be related to the Services. Note that this list does NOT include all legislation and it is your obligation and responsibility to determine if other legislation may be related to the Services.
CAN-SPAM Act: http://www.business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business
Canada’s Anti-Spam Legisation: http://fightspam.gc.ca/eic/site/030.nsf/eng/home
Spam Act 2003: http://www.comlaw.gov.au/Details/C2011C00080
DIRECTIVE 2002/58/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 July 2002 (Article 13): http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2002L0058:20091219:EN:HTML
The Privacy and Electronic Communications (EC Directive) Regulations: http://www.legislation.gov.uk/uksi?title=The%20Privacy%20and%20Electronic%20Communication
Telecommunications Act 2003: https://www.rtr.at/en/tk/TKG2003
Commission de la protection de la vie privée, Le spam en Belgique Etat des lieux en juillet 2003, July 4, 2003
Regulation of Electronic Communications and Postal Services Law of 2004 (Section 6): http://www.dataprotection.gov.cy/dataprotection/dataprotection.nsf/index_en/index_en?opendocument
Act No. 480/2004 Coll., on Certain Information Society Services
Information Society Service Act: https://www.riigiteataja.ee/akt/780289
CNIL Guidelines on email marketing : http://www.cnil.fr/les-themes/conso-pub-spam/fiches-pratiques/article/la-prospection-commerciale-par-courrier-electronique/
German Unfair Competition Law (Gesetz gegen Unlauteren Wettbewerb) (UWG) (Article 7): http://www.iuscomp.org/gla/statutes/BDSG.htm
Personal Data Protection Code (legislative decree no. 196/2003): http://www.garanteprivacy.it/home_en/italian-legislation#1
Dutch Telecommunications Act and Dutch Data Protection Act (Article 11.7)
Swedish Marketing Act (Swedish Code of Statutes, SFS 1995:450)
Personal Data Act (Swedish Code of Statutes, SFS 1998:204)
You further agree that section 8, including the indemnity, includes all reciprocating legislation. Please make sure you are aware and abiding by all Anti-Spam legislation from any jurisdiction in which emails may be sent or received.
You represent that, to the best of your knowledge and belief, the content used with this Service, nor the manner in which they are directly or indirectly used infringes the legal rights of any party, and that the services is not being used for unlawful purposes.
You further agree, unless otherwise authorized by us in writing, not to use the Services to deliver pornographic materials, as defined in our sole discretion, including, but not limited, to video or images of nudity, or people appearing in sexual situations. If, in our opinion you have used the Services for this purpose, we reserve the right to immediately terminate Services.
You further agree not to use the Services to deliver unsolicited bulk email ("spam"). If, in our opinion and at our sole discretion you have used the Services for this purpose or plan on using the Services for this purpose, we reserve the right to immediately terminate Services.
You further agree to only import, access or otherwise use permission-based lists. If you purchase a list of addresses of people who have not expressly consented to your organization contacting them, this does not constitute consent.
You further agree all new subscribers who add themselves manually to your list must first confirm their intent to subscribe through Elite Email's double opt-in system. Prior to the subscriber confirming their intent to enroll in your mailing list by clicking the auto-generated link supplied in an email, you are not to contact them.
You further agree you cannot mail to distribution lists, group lists, newsgroups, or spam email addresses. You cannot copy an Elite Email template or any other features or functionality from the Services and use them for any purpose other than sending emails from the Service.
You further agree you are responsible for monitoring, correcting, and processing unsubscribe requests within 5 days of receiving such notification. Failure to actively process these request may result in the termination of your account. If you need any assistance with the processing of requests, please contact Elite Email.
You further agree images or other content hosted in your account may only be used in connection with the Service and for no other purpose whatsoever.
You further agree that occasionally, emails that you send through the Service may generate abuse complaints from recipients. Elite Email has no obligation to disclosure the specific individual(s) who report these complaints. You are responsible for ensuring that your marketing campaigns and use of the Services do not generate a number of abuse complaints in excess of industry standards. Elite Email, in its sole discretion, shall determine whether your level of abuse complaints is within industry standards, and its determination shall be final, binding and conclusive for all purposes under this Agreement.
You further agree if you are found to be hosting prohibited content or distributing prohibited content as deemed by us, your account will be terminated.
You further agree Elite Email may, at its own discretion, immediately disable your access without refund to the Services if Elite Email believes in its sole discretion that you have violated any part of this Agreement, or are partaking in any other conduct deemed inappropriate by Elite Email.
We reserve the right to distribute information to you that is pertinent to our services. These announcements will be predominately informative in nature and may include notices describing changes, upgrades, new products or other information. You can unsubscribe and withdraw your consent from certain marketing related messages at any time, but transactional messages such as invoices, payment notifications, support notices or security notices will always be sent.
10. LIMITATION OF LIABILITY
You agree that our entire liability, and your exclusive remedy, with respect to any Service(s) provided under this Agreement and any breach of this Agreement is solely limited to the amount you paid for such Service(s). We and our contractors shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from the use or inability to use any of the Services or for the cost of procurement of substitute services. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, in such jurisdictions, our liability is limited to the extent permitted by law. We disclaim any and all loss or liability resulting from, but not limited to: (1) loss or liability resulting from access delays or access interruptions; (2) loss or liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from acts of God; (4) loss or liability resulting from the unauthorized use or misuse of your account identifier or password; (5) loss or liability resulting from errors, omissions, or misstatements in any and all information or services(s) provided under this Agreement; (6) loss or liability resulting from the interruption of your Service; (7) loss of data. You agree that we will not be liable for any loss of registration and use of your domain name, or for interruption of business, or any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if we have been advised of the possibility of such damages.
You agree to release, indemnify, and hold us, our contractors, agents, employees, officers, directors and affiliates harmless from all liabilities, claims and expenses, including attorney's fees, from claims by third parties, including but not limited to events relating to or arising under this Agreement, the Services provided hereunder or your use of the Services, including without limitation infringement by you, or someone else using the Service with your computer, of any intellectual property or other proprietary right of any person or entity, or from the violation of any of our operating rules or policy relating to the service(s) provided. When we are threatened with suit by a third party, we may seek written assurances from you concerning your promise to indemnify us; your failure to provide those assurances may be considered by us to be a breach of your Agreement and may result in cancellation of your Service.
12. TRANSFER OF SERVICE
There is no provision to transfer the service to another party under this Agreement. Where a transfer of Service to another party occurs, it is deemed to have occurred by the original parties to this Agreement cancelling the Agreement, and the new parties entering into a new Agreement.
You agree that failure to abide by any provision of this Agreement, may be considered by us to be a material breach and that we may immediately and unilaterally suspend or terminate your services, with optional notice at our discretion describing the breach, to you. If within fifteen (15) calendar days of the date of such notice, you fail to provide evidence, which is reasonably satisfactory to us, that you have not breached your obligations under the Agreement, then we may cancel Service and remove all of your data. Any such breach by you shall not be deemed to be excused simply because we did not act earlier in response to that, or any other, breach by you.
14. DISCLAIMER OF WARRANTIES
You agree that your use of our Services is solely at your own risk. You agree that such Service(s) is provided on an "as is," "as available" basis. We expressly disclaim all warranties of any kind, whether expressed or implied, including but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. We make no warranty that the Services will meet your requirements, or that the Service(s) will be uninterrupted, timely, secure, security of data or error free; nor do we make any warranty as to the results that may be obtained from the use of the Service(s) or as to the accuracy or reliability of any information obtained through the Service or that defects in the Service will be corrected. You understand and agree that any material and/or data downloaded or otherwise obtained through the use of Service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data. We make no warranty regarding any goods or services purchased or obtained through the Service or any transactions entered into through the Service. No advice or information, whether oral or written, obtained by you from us or through the Service shall create any warranty not expressly made herein.
15. DATA OWNERSHIP
You agree that all data (such as mailing list data and customer data) used by our services are solely owned by you and that Elite Email will only use such data for the service(s) requested by you. Elite Email does not have any proprietary rights whatsoever to your data. Elite Email may keep archived or backup copies of your data to attempt to prevent any data loss.
As part of the registration process, you will be required to provide us with personal information, and to update us promptly as such information changes such that our records are current, complete and accurate. We may also collect voluntary information to help us improve the products and services offered to you. Despite our best efforts to disclose this information, we do not warrant that the registration process will identify what information is mandatory and what is voluntary. Even if your service is terminated or cancelled; Elite Email retains the right to possess and maintain your information and archive same.
In an effort to improve our Services, we do monitor your usage of the Services.
At times we may aggregate summary data from multiple Clients to present research and statistics that will at no point identify you.
17. DISCLOSURE AND USE OF REGISTRATION INFORMATION
For the purpose of the Service in this Agreement, we do not generally need to disclose information to other parties. However, you agree and acknowledge that we may make the information available to other parties at our discretion, including, but not limited to law enforcement agencies in Canada or elsewhere, as requested by them.
You hereby irrevocably waive any and all claims and causes of action you may have arising from such disclosure or use of your information by us.
We will take reasonable precautions to protect the information we obtain from you from our loss, misuse, unauthorized access or disclosure, alteration or destruction of that information.
Your willful provision of inaccurate or unreliable information, your willful failure to promptly update information provided to us, or your failure to respond for over fifteen calendar days to inquiries by us concerning the accuracy of contact details associated with the this Agreement shall constitute a material breach of this Agreement and be a basis for cancellation of the Service.
19. RIGHT OF REFUSAL
We, in our sole discretion, reserve the right to refuse Service from receipt of your payment for such services. We agree to refund your applicable fee(s). You agree that we shall not be liable to you for loss or damages that may result from our refusal to provide Service.
You agree that the terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, that term or provision will be construed consistent with applicable law as nearly as possible to reflect the original intentions of the parties, and the remaining terms and provisions will remain in full force and effect.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties.
Our failure to require performance by you of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by us of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
Any notice, direction or other communication given under this Agreement shall be in writing and given by sending it via email or via regular mail. In the case of email, valid notice shall only have been deemed to have been given when an electronic confirmation of delivery has been obtained by the sender. Any email communication shall be deemed to have been validly and effectively given on the date of such communication, if such date is a business day and such delivery was made prior to 4:00 p.m. EST, otherwise it will be deemed to have been delivered on the next business day. In the case of regular mail notice, valid notice shall be deemed to have been validly and effectively given 5 business days after the date of mailing and, in the case of notification to us shall be sent to:
5511 Steeles Ave. W, Suite 200
Toronto, Ontario, M9L 1S7
and in the case of notification to you shall be to the address specified in your "Account Information".
You agree that this Agreement, the rules and policies published by us are the complete and exclusive agreement between you and us regarding our Services. This Agreement supersedes all prior agreements and understandings, whether established by custom, practice, policy or precedent.
25. GOVERNING LAW
This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in Ontario, and you irrevocably consent to the jurisdiction of such courts.
You attest that you are of legal age to enter into this Agreement.
Should Elite Email be legally separately incorporated, acquired, taken over or merged with another company, the new entity will be deemed to have taken over all responsibilities of Elite Email with regards to this contract, with the contract remaining in full force and effect.
28. ACCEPTANCE OF AGREEMENT
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF THE SERVICE AND ARE NOT RELYING ON ANY REPRESENTATION AGREEMENT, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
Last Updated: August 18, 2014
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