1. INTERPRETATION AND DEFINITIONS
1.1 In this agreement, unless inconsistent with or otherwise indicated by the context:
1.1.1 "Service" means the MailArchiva Cloud Service hosted in the cloud.
1.1.2 "Trial Period" means, the period commencing on the date on which the subscription was created and terminating on the last day of the calendar month in which in the subscription was created;
1.1.3 "Mailbox" means a unique address that from time to time is or was used for sending and receiving emails archived using the Service during the previous 12 month period, provided that domain aliases registered in the Service are not regarded as additional mailboxes, for example, email@example.com and firstname.lastname@example.org would be regarded as a single Mailbox where mailarchiva.com and stimulussoft.com are registered as domains for a tenant;
1.1.4 "End Customer" means a person that subscribes to the Service for normal business end use or personal use and not for resale or distribution;
1.1.5 "Data" means data of an End Customer stored by: (i) StimulusSoft; or (ii) the system that runs the Service;
1.1.6 "Month" means a period starting and ending on the first and last day, respectively, of any calendar month;
1.1.7 "StimulusSoft" is Stimulus Software (Pty) Ltd, a company registered according to the laws of South Africa;
1.1.8 "Prime" means 10% nacm;
1.1.9 “Concluded Downstream Agreements” is defined in clause 5.2; and
1.1.10 "Taxes" means: (i) VAT, GST or any similar tax; and (ii) withholdings tax where corresponding tax credits or rebates are not available to StimulusSoft.
1.1.11 "Commencement Date" means the first day of the month in which this agreement was signed by the last Party to sign;
1.1.12 “Year” means the period of a calendar year starting from the first day of service commencement and on the anniversary day thereafter.
1.2 Words in the singular number include the plural and vice versa.
1.3 Words importing any one gender include each of the other two genders.
1.4 The headings of the clauses are intended for convenience only and do not affect the interpretation of this agreement.
2. ACCESS TO THE SERVICE
Stimulus Software (“StimulusSoft”) hereby grants to End Customer a personal, non-transferable, non-exclusive right to use the Service.
3.1. This agreement commences with effect from the Commencement Date and will remain in force unless terminated by either Party in accordance with the provisions set out in this agreement.
3.2. StimulusSoft may terminate this agreement by giving the End Customer at least one calendar month written notice of its intention to terminate.
3.3 If the agreed payment schedule is per Month, End Customer may terminate this Agreement with one month's notice.
3.4 If the agreed payment schedule is per Year, the Customer may terminate this Agreement at the end of the Year or on each anniversary thereof, provided one month's notice is given.
3.5 Termination with less than one month's notice or outside of the specified period is not permitted, and no refunds or adjustments will be provided.
4. ACCESS TO THE SERVICE
4.1. The Service is accessible at https://www.archiva.com or https://mailarchiva.eu. StimulusSoft may from time to time, and at its sole discretion, update or upgrade such Service.
4.2. End Customer will not be entitled to have access to or be supplied with any software (including source code) relating to the Service.
4.3 Customer acknowledges that Data is stored either using the Back Blaze B2 Object Storage or Wasabi Technology service, and that such storage is subject to the Back Blaze B2 Terms & Conditions and Data Processing Addendum (available at https://www.backblaze.com/company/terms.html), or Wasabi Customer Agreement (available at https://wasabi.com/legal/customer-agreement) and Wasabi Data Processing Addendum (available at https://wasabi.com/legal/data-processing-addendum/).
4.4. In respect of each aspect of the Data, subject to End Customer not being in breach of this agreement, StimulusSoft shall retain such aspect of the Data until the earlier of:
4.5.1. termination or cancellation of this agreement for any reason whatsoever; and
4.6.2. tenth anniversary of the date on which the email containing such aspect of Data was sent.
4.7. StimulusSoft may retain the Data post termination or cancellation of this agreement, where StimulusSoft reasonably considers that such retention is required to comply with applicable laws and regulations.
5. UNDERTAKINGS BY END CUSTOMER
5.1. Notwithstanding anything to the contrary contained in this agreement, End Customer undertakes not to:
5.1.1. use the Service to archive primarily emails sent or received by natural persons (i.e. not automated emails). In clarification of the aforegoing, “primarily” is intended to mean at least 90% of emails sent or received by a End Customer;
5.1.2. use the Service in any manner not authorised in terms of this agreement;
5.1.3. Create the impression or state that it owns or developed the Service;
22.214.171.124. use the Service in an unlawful manner including, without limitation, use of the Services directly or indirectly:
126.96.36.199. to transmit viruses, macro viruses, Trojan horses, worms or other malware;
188.8.131.52. to transmit or post material that is unlawful, harassing, libellous, invasive of privacy abusive, sexual in nature, threatening, harmful, vulgar, defamatory, offensive, or of an obscene or menacing character, or in such a way as to cause annoyance, inconvenience or needless anxiety;
184.108.40.206. to send unsolicited communications or spam;
220.127.116.11. to cause the whole or part of the Service to be interrupted, damaged, rendered less efficient or to in any way impair effectiveness or functionality of the Service; or
18.104.22.168. so as to violate or infringe any person’s rights including, without limitation rights to privacy and intellectual property.
22.214.171.124. use the Service for commercial purposes; or
126.96.36.199. generally use the Service to cause any nuisance.
5.2. When using the Service, End Customer undertakes to abide by the Prevention of Harmful Practices Policy published by StimulusSoft from time to time.
5.3. End Customer acknowledges that all goodwill in the Service and related trademarks inure for the benefit of StimulusSoft, and insofar as may be required by law, End Customer hereby assigns to StimulusSoft all such goodwill that may in future exist, and in this regard undertakes, if required by StimulusSoft, to perform all acts that may be necessary (at StimulusSoft’s cost) to effect such assignment.
5.4. End Customer shall use MailArchiva branding and trademarks strictly as directed by StimulusSoft from time to time, and any change in the branding and use of MailArchiva trademarks will require StimulusSoft’s prior written consent.
6. SERVICE FEES
6.1. In consideration for the rights granted to End-Customer hereunder, End-Customer undertakes to pay StimulusSoft either a monthly or yearly fee as per agreed in writing by StimulusSoft.
6.2. The monthly or yearly fee shall consist of the following:
6.2.1. Archiving and e-Discovery Fee – monthly or yearly fee as per agreed in writing, or if no written agreement is reached before the Commencement Date, calculated in accordance with the per Mailbox fee schedule outlined at https://mailarchiva.com/cloud-pricing.html, provided that:
(a) Mailboxes associated with the Archiving and e-Discovery Fee will not trigger a payment to StimulusSoft hereunder until expiry of the Trial Period; and
(b) if End-Customer has less than ten mailboxes, the total amount payable for the Archiving and e-Discovery Fee will be limited to a minimum of 10 mailboxes.
6.2.2. Import Fee - monthly fee calculated from cumulative total amount of gigabytes imported since the Commencement Date. Unless agreed in writing otherwise, the import charge will consist of a monthly charge of USD 12c per GB of total Data imported.
6.2.3. If the End-Customer terminates after the Trial Period, they may request to download their archived Data over the Internet. A one-time fee of $0.20 per gigabyte of exported Data will be applied and must be paid before the data is made available.
6.3. If the agreed payment term is per Month, unless otherwise communicated, the amount shall automatically escalate on 1 January each year based on the Consumer Price Index (CPI).
6.4. If the agreed payment term is per Year, a quote for the upcoming year's fees will be provided for acceptance at least two months in advance of the anniversary date.
6.5. Amounts payable must be paid by End Customer within 30 calendar days following the end of the payment term.
6.6. End Customer shall: (i) deduct from amounts payable to StimulusSoft hereunder any withholdings taxes payable; (ii) make timely payment of such taxes to the relevant authorities; and (iii) within 14 calendar days of payment, provide StimulusSoft with documented proof of payment to the satisfaction of StimulusSoft.
6.7. End Customer shall make payment to StimulusSoft of all amounts due to StimulusSoft in terms of this agreement by credit card, or by check addressed to:
337 Garden Oaks Blvd #82987
Houston, TX 77018
or electronic transfer into the following bank account:
Stimulus Software Pty Ltd
Standard Bank of SA Ltd
Account no.: 200277944
Branch: Rosebank (007205)
Swift Code: SBZAZAJJ
7. LIABILITY FOR INTEREST ON LATE PAYMENTS
7.1. All amounts which End-Customer is required to pay to StimulusSoft in terms of this agreement and which are not paid on due date will bear interest at Prime.
7.2. Interest will be calculated on a daily basis in arrears from the due date of payment and will be compounded.
7.3. StimulusSoft's right to charge interest on outstanding amounts will not detract from any other rights that StimulusSoft may have in law or in terms of this agreement.
8.1. The Service is supplied “as is” and StimulusSoft does not warrant that the software on which the Service runs is free of bugs, inadvertent errors, defects or malfunctions. If StimulusSoft is notified of any significant inherent defect or error in the Service or such software during the term of this agreement, it will take all reasonable steps to correct any such defect or error within a reasonable time.
8.2. End Customer undertakes to inform StimulusSoft of any bugs, inadvertent errors, defects or malfunctions in respect of the Service or the software on which the Service runs as soon as reasonably possible after End Customer discovers or is informed of such fault or problem.
8.3. Notwithstanding anything to the contrary contained in this agreement, any liability of StimulusSoft arising out of this agreement will be limited to StimulusSoft rectifying, within a reasonable time and free of charge, any bugs, inadvertent errors or malfunctions in the Service and software on which the Service runs. In no instance, will StimulusSoft be liable to restore or correct data.
8.4. The warranties contained in this warranties clause are End Customer’ sole warranties and are in place of all warranties, conditions or other terms expressed or implied by statute or otherwise, all of which are hereby excluded to the fullest extent permitted by law. This warranties clause also sets out the End Customer’s sole remedies for any breach of StimulusSoft’ warranties. All other warranties, conditions, representations, indemnities and guarantees with respect to the Service, whether express or implied, arising by law, custom, prior oral or prior written statements by StimulusSoft or otherwise (including, but not limited to, any warranty for merchantability or fitness for particular purpose) are hereby overridden, excluded and disclaimed by StimulusSoft will not be liable in respect of any related claims or damages howsoever arising. In particular, and without derogating from the generality of this warranties sub-clause, under no circumstances (except in the event of personal injury or death resulting from StimulusSoft’ negligence) will StimulusSoft, its members, directors, officers, employees, servants, contractors or agents be liable for any consequential, indirect, special, punitive or incidental damages or lost profits, whether foreseeable or unforeseeable, whatsoever, including, without limitation, such damages or lost profits based on claims of Reseller and/or user of the Service / Software (including, but not limited to claims for loss of goodwill, use of money or use of such Service / Software) arising out of loss of data; hacking; denial of service attacks; malicious software (e.g. viruses, Trojans, worms, botnets or the like); interruption of use or availability, failure or malfunction of the Service / Software, telecommunication facilities or hardware; stoppages or other impairment of other assets; bugs, inadvertent errors, defects or malfunctions in the Service / Software; breach or failure of express or implied warranties; breach of contract; misrepresentation; negligence and strict liability in delict.
8.5. End Customer acknowledges that:
8.5.1. aspects of the Service are under the control of third parties (e.g. telecommunication service providers and hosting providers);
8.5.2. StimulusSoft are reliant upon such third parties for proper performance of StimulusSoft’s obligations hereunder; and
8.5.3. StimulusSoft can be held liable for any defective or interrupted service(s) provided by such third parties, provided that in the event of a defect or interruption, StimulusSoft shall use best efforts to procure that such defect or interruption is remedied by such third party.
8.6. Subject to the preceding clause and End Customer not being in breach of this agreement, StimulusSoft shall use its best efforts to ensure 95% uninterrupted operation of aspects of the system in the possession or control of StimulusSoft and, consequently, uninterrupted provision of Services.
9.1. End Customer shall procure that all users of the Service that are given access to the Service by the End Customer accept the limitation of liabilities detailed in the warranties clause. End Customer indemnifies StimulusSoft (including indemnification relating to legal fees) against any claim, action or proceedings instituted by such users, where such claim, action or proceedings arise from such users’ failure to accept the limitation of liabilities detailed in the warranties clause.
9.2. In addition to the preceding clause, End Customer indemnifies StimulusSoft and its directors, members, officers, employees, servants, contractors and agents against damage, cost or expense (including reasonable attorney fees) arising from any claim, demand, assessment, action, suit or proceeding relating to the Service that is based on End Customer’s conduct, action or inaction.
9.3. In the event that any claim is made successfully against StimulusSoft and/or StimulusSoft, the liability of StimulusSoft is limited to an amount equal to the corresponding amounts paid to StimulusSoft in terms of this agreement.
10.1. StimulusSoft’s technical support staff will endeavour to respond to any queries End Customer may have about the Service. For support, consult StimulusSoft’s web site at www.mailarchiva.com, or email StimulusSoft at email@example.com.
10.2. StimulusSoft agrees to provide reasonable support and assistance to End Customer in developing familiarity with the Service insofar as is necessary for End Customer to exercise its rights in terms of this agreement.
10.3. StimulusSoft will provide End Customer with Tier 1 and Tier 2 and Tier 3 support, as substantially described in Schedule 1 (“Support Terms”) attached hereto, and as updated and upgraded by StimulusSoft from time to time;
11. THIRD PARTY INFRINGEMENT CLAIMS
Neither StimulusSoft warrants that the Service does not infringe the intellectual property of third parties or that the Service is compliant with all legal requirements (including, without limitation, statutes and regulations) that End Customer may operate under, and neither StimulusSoft assumes any obligation to indemnify End Customer against any claims based on either infringement of intellectual property rights of third parties or non-compliance resulting from use of the Service.
12. USE AND STORAGE OF PERSONAL INFORMATION BY STIMULUSSOFT
12.1. End Customer hereby consents to StimulusSoft requesting, collecting, collating, processing, storing and/or disclosing personal information for the purposes, without limitation, of:
12.1.1. publicising the Service;
12.1.2. advertising the Service;
12.1.3. compiling a customer reference list that is available to the public; and
12.1.4. generally promoting the Service.
13. LANGUAGE OF SERVICE AND DOCUMENTATION
The Service and related documentation shall be provided by StimulusSoft in English only, and End Customer will have no claim against either StimulusSoft or StimulusSoft for a translated version of such Service or related documentation.
Stimulus is deemed to have agreed to this agreement on the date the I AGREE button is clicked.
Support: Explanation of Tier 1, 2 and 3 Support and Responsiveness
• Tier 1 – Issues regarding installation, operational issues regarding use of the product; End End Customer calls End Customer tech support team whose members have been trained to support
• Tier 2 – Isolate and work through problems that related to the use of the Service with the end customer. Help customer with workarounds and solutions. End End Customer calls StimulusSoft tech support team whose members have been trained to answer these questions.
• Tier 3 – StimulusSoft will work with StimulusSoft support staff in the resolution of problems that they cannot independently resolve:
End Customer may contact StimulusSoft in the following ways:
• Telephone – Available for all levels of support.
• E-mail support – for less urgent issues, e-mail support will be available.
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