3C Technology Ltd and Customer agree to the following Standard Terms and Conditions and Service Level Agreements, as may be supplemented by any additional terms attached hereto (the "Terms and Conditions").These Terms and Conditions and Service Level Agreements (the "SLA") are collectively referred to as the "Agreement". The SLA defines 3C Technology Ltd's service availability goals and commitments as well as the notification and operations standards. It also provides additional terms on remedies and certain obligations of 3C Technology Ltd and Customer in addition to the Terms and Conditions.
1. DESCRIPTION OF SERVICES. 3C Technology Ltd will provide backup or secondary MX services also known as “store-and-forward” or “mail bagging”, after the service has been properly configured on your end per our instructions, in the event your mail server becomes unavailable your e-mail will automatically be delivered to our servers. Our servers will store these messages and automatically try to forward them to your mail server at periodic intervals. Messages expire and are deleted from the queue automatically 14 days after they are received, if they still cannot be delivered to your server. This is collectively referred as the "Services". 3C Technology Ltd may from time to time change, update or enhance the Services as it deems necessary.
2. CUSTOMER OBLIGATIONS. Customer will provide 3C Technology Ltd with all technical data and all other relevant information and assistance 3C Technology Ltd reasonably requires to supply the Services. To the best of Customer's knowledge, all information supplied to 3C Technology Ltd will be complete, accurate and provided in good faith. Customer acknowledges and agrees that 3C Technology Ltd will not provide the Services to Customer unless Customer is in compliance with 3C Technology Ltd's acceptable usage policies and technical prerequisites ("AUP") that are applicable to the Services. Customer agrees not to: (i) use the Services for any purpose that is in violation of any applicable law or is otherwise an infringement on the rights of any person or entity, or violates the AUP. In the event Customer provides similar services; (ii) modify, decompile, reverse engineer, disassemble or reproduce any components of the Services (iii) interfere with or disrupt the Services or any networks connected to Services; (iv) conduct fraudulent activities, including the initiation or propagation of any Malware; (v) take an unreasonable or disproportionately large load (traffic bandwidth or number of messages per user exceeding 150% of the average for all 3C Technology Ltd customers using similar services) on 3C Technology Ltd infrastructure providing the Services, unless the parties agree to a bandwidth overage charge rate as set forth in a Service Order Form; (vi) impersonate any person or entity or falsely state or otherwise misrepresent an affiliation with a person or entity; (vii) allow the use of its systems to be used as Open Proxy, or otherwise permit the use of the Services by any third party users that are not bound by these Terms and Conditions (each of (i) to (vii), a "Prohibited Use").
3. SYSTEM ADMINISTRATOR. Customer will provide 3C Technology Ltd with technical contact information regarding Customer's system administrator ("System Administrator") who Customer hereby authorises and directs to act on its behalf and provide the information required by 3C Technology Ltd to configure and manage the Services. 3C Technology Ltd will provide Customer with a confidential access code to the administration tool. Customer agrees that only the System Administrator will have access to the access code and the access code shall remain the Confidential Information of 3C Technology Ltd.
4. TERM. The initial term of this Agreement is specified in the Order Form (the "Initial Term"). This Agreement shall renew for successive terms of equal length as the Initial Term (each a "Renewal Term") unless either party provides written notice of its intent not to renew this Agreement at least five (5) days prior to the end of the then current term. During any Renewal Term, the parties shall be bound by the provisions of these Terms and Conditions and Service Level Agreements in the form published on 3C Technology Ltd's website as of the effective date of the Renewal Term. Customer acknowledges and agrees that billing for the Services shall continue through the effective date of the termination, subject to the notice requirement and other applicable terms herein.
5. FEES; INVOICE; AUDIT. Customer will pay the Fees set forth on the Order Form, which are subject to change based on Customer's request for an increased number of domains served or other options ordered by Customer, or at the discretion of 3C Technology Ltd at the beginning of any Renewal Term. If the Customer cancels the Services during the Initial Term or any Renewal Term they will not be entitled to a refund. Customer shall pay all invoiced Fees within fifteen (15) days of the invoice date. Any payment not received when due shall accrue interest at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by law, whichever is lower. 3C Technology Ltd will have the right at its expense and with reasonable prior notice to Customer to audit Customer's compliance with the terms of this Agreement, including but not limited to the number of authorized domains. If any audit reveals that Customer has underpaid the Fees due to 3C Technology Ltd hereunder, Customer will promptly remit such underpaid amounts plus interest thereon at the rate of one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower.
6. SUSPENSION OF SERVICE. 3C Technology Ltd may suspend the Services as follows: a) immediately if 3C Technology Ltd deems it necessary to terminate any Prohibited Use either directed at or originating from Customer's domains or servers; or b) upon written notice to Customer if Customer breaches this Agreement and fails to cure such breach to 3C Technology Ltd's satisfaction within five (5) days after 3C Technology Ltd's written notice specifying the breach. Suspension of Services shall be without prejudice to any rights or liabilities accruing prior to or during the suspension, including but not limited to Customer's obligation to pay Fees.
7. TERMINATION. 3C Technology Ltd may terminate this Agreement for cause immediately upon email notice to Customer: (a) in the event that 3C Technology Ltd does not receive Customer's payment of any non-disputed Fees within thirty (30) days of the invoice date, (b) Customer fails to remedy any situation giving rise to a Suspension of Service; (c) Customer commits a material breach of this Agreement; or (d) 3C Technology Ltd makes a reasonable determination that Customer's traffic volume is disproportionately large. In the event of (d) above, 3C Technology Ltd may request that Customer enter negotiations regarding a Fee adjustment as a prerequisite to continuing Services. Within thirty (30) calendar days after termination or expiration of this Agreement, Customer will: (a) return to 3C Technology Ltd all materials provided to Customer by 3C Technology Ltd under this Agreement; and (b) certify in writing through an authorized representative of Customer that such return has been effected.
8. CUSTOMER SERVICE. Following signup Customer will receive information on how they may contact 3C Technology Ltd for technical support. 3C Technology Ltd may from time to time perform maintenance on or otherwise temporarily suspend the Services. 3C Technology Ltd will use commercially reasonable efforts to minimise any disruption of Services.
9. SECURITY. Although information transmitted to 3C Technology Ltd is stored in secure operating environments, Customer understands that no data transmission over the Internet can be guaranteed to be 100% secure. 3C Technology Ltd is not responsible for any interception or interruption of any communications through the Internet. Customer is responsible for maintaining the security of its networks, servers, applications and access codes.
11. INTELLECTUAL PROPERTY. The Services (including any associated software, hardware, websites, passwords, components and tools) are and will remain the sole property of 3C Technology Ltd or its licensors, respectively. 3C Technology Ltd or its licensors, respectively, will retain sole ownership of all right, title and interest in and to the Services, as well as any derivative works thereof, including but not limited to copyrights, patent rights, trademark and service mark rights, trade secret rights, moral rights, and all other intellectual property and proprietary rights ("Intellectual Property"). Customer agrees, on behalf of itself, its employees and agents, that it will not remove or alter any trademarks, or other proprietary notices, legends, symbols, or labels appearing in the Service or other materials delivered by 3C Technology Ltd.
12. THIRD PARTIES. The Services may contain products of independent third parties. 3C Technology Ltd makes no warranty as to the accuracy of any such third party information.
13. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY. ANY USE BY YOU OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED "AS IS," AND 3C TECHNOLOGY LTD MAKES NO WARRANTIES OF ANY KIND TO THE MAXIMUM EXTENT PERMITTED BY LAW, WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, CONFORMITY TO ANY REPRESENTATION OR DESCRIPTION, OR NON-INFRINGEMENT. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, 3C TECHNOLOGY LTD AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER FOR BREACH OR IN TORT, IS LIMITED TO THE FEES PAID BY CUSTOMER FOR THE TWO MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL 3C TECHNOLOGY LTD OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOST SAVINGS, LOSS OF CUSTOMERS, LOSS OF, OR LOSS OF USE OF, ANY SOFTWARE, DATA, WEB TRAFFIC, OR EMAILS, BUSINESS INTERRUPTION, DELAYS OR FAILURE TO DELIVER WEB TRAFFIC OR EMAIL, DELAYS OR FAILURE TO DETECT UNDESIRABLE WEB TRAFFIC OR MALWARE, OR WRONGFULLY IDENTIFYING WEB TRAFFIC OR EMAIL FOR FILTERING OR AS CONTAINING MALWARE) HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF 3C TECHNOLOGY LTD HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS OF ITS ESSENTIAL PURPOSE. 3C TECHNOLOGY LTD DO NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE UNINTERRUPTED.
14. INDEMNIFICATION. Customer agrees to indemnify, defend, and hold 3C Technology Ltd harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs and expenses (including reasonable legal fees) arising out of or relating to (i) any breach by Customer of this Agreement; (ii) any information or content passing through the Services and/or 3C Technology Ltd's network to or from Customer; (iii) any taxes arising from the Services whether now in effect or imposed in the future (excluding taxes based on 3C Technology Ltd's income); and (iv) claims by third-parties arising from Customer's use of the Services (excluding claims that the Services, as provided by 3C Technology Ltd, infringe third party intellectual property rights). 3C Technology Ltd agrees to indemnify, defend, and hold Customer harmless from and against any and all claims, liabilities, damages, fines, penalties, losses, costs and expenses (including reasonable legal fees) arising out of third party claims that Customer's authorised use of the Services, as provided by 3C Technology Ltd, infringes the intellectual property rights of such third party. In the event that a claim of infringement is made or threatened, 3C Technology Ltd may: (i) modify the Services to render them non-infringing; (ii) secure for Customer the right to use the Services; or (iii) terminate this Agreement. The foregoing states the entire liability of 3C Technology Ltd with respect to infringement.
15. WAIVER. The failure of a party to exercise or enforce any right under this Agreement shall not be deemed to be a waiver of that right nor operate to bar the exercise or enforcement of it at any time or times thereafter.
16. JURISDICTION/GOVERNING LAW; COSTS; LIMITATION PERIOD. Applicable UK law shall govern this Agreement and any interpretations or constructions thereof. The parties hereby submit themselves to the personal jurisdiction and venue of such courts. In any dispute related to this Agreement or the Services, the parties irrevocably waive any right they may have to a jury trial, and such waiver is a material inducement to 3C Technology Ltd entering into this Agreement and providing the Services. In any dispute regarding the enforcement of this Agreement, the prevailing party shall be entitled to recover all costs and fees, including legal fees, incurred by such prevailing party in enforcing the terms of this Agreement. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of this Agreement must be filed within one (1) month after such claim or cause of action arises.
17. NOTICE. Any notice required in this Agreement shall be delivered by facsimile or mail sent to the address or fax number listed in the company contact page located at: http://www.3ctech.co.uk/contact-us-here
Notices shall be deemed effective upon receipt.
18. SERVICE AVAILABILITY GOAL AND COMMITMENT. 3C Technology Ltd's goal is to achieve 100% Service Availability for all customers. "Service Availability" means that 3C Technology Ltd is available to retrieve and store customer e-mails in the event of failure to their mail servers, defined as a header response from an MTA outside of scheduled maintenance windows. Subject to the Exceptions set forth below, 3C Technology Ltd's Service Availability shall be 99.99% for the Services.
19. SERVICE AVAILABILTY FAILURE REPORTING PROCESS. When Customer notices any Service Availability failure or believes that the failure occurred, Customer will inform 3C Technology Ltd's Customer Support by contacting us from http://www.3ctech.co.uk/contact.html within ten (10) business days of first notice. Customer agrees that the remedies set forth in this SLA are conditioned upon Customer's compliance with this notification requirement.
20. REMEDIES AND EXCEPTIONS. If Service Availability is below 99.99% for a given month ("Deficiency"), and none of the Exceptions defined below is applicable, and provided that Customer is not in breach of the Agreement, Customer shall have the following sole remedy: 3C Technology Ltd shall issue a credit on Customer's account for that month, and such credit can be used only towards future billing charges. The amount of the credit shall be the pro-rata service fee calculated by multiplying the Failure Percentage with Customer's total monthly fee in the month during which the Deficiency occurs, and if Deficiency occurs for Customer for three consecutive calendar months, Customer has the option to terminate the Agreement by giving 3C Technology Ltd fifteen (15) days prior written notice. Customer shall not have any remedies under this section of the SLA for the Deficiency caused by or associated with any of the following ("Exceptions"): (a) scheduled maintenance and emergency maintenance and upgrades; (b) unavailability of or interruption or delay in telecommunications or third party services (c) circumstances beyond 3C Technology Ltd's reasonable control, including, without limitation, acts of God, outages elsewhere on the Internet, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike, earthquake, other natural disaster or other labour disturbance, failure of third party software; (d) DNS issues outside the direct control of 3C Technology Ltd; (e) Customer's acts or omissions, including without limitation, any negligence, wilful misconduct, or engaging in Prohibited Use or otherwise use of the 3C Technology Ltd Services in breach of the Agreement; or (f) Customer's email servers have not been configured to receive email from 3C Technology Ltd's mail servers or are misconfigured and not accepting mail for users.
21. SCHEDULED MAINTENANCE. 3C Technology Ltd will provide Customer with at least 24 hours advance notice on scheduled maintenance, which includes server, data centre, and software maintenance and upgrades.
22. DISPUTE RESOLUTION. If a dispute arises about whether or not Service Availability was affected or whether an Exception occurred, 3C Technology Ltd shall make a determination in good faith based on its portal audit trails, system logs, monitoring reports and configuration records, the relevant part of which 3C Technology Ltd shall make available for auditing by Customer at Customer's request