This Black Pearl Mail Terms and Conditions of Service Agreement (the “Agreement”) is entered into by and between Black Pearl Mail Limited, a New Zealand Company, Company Office Number 4064918, with offices at 4 Lochy Street, Petone, Lower Hutt, New Zealand (“BPM”) and the entity agreeing to these terms (“Customer”). This Agreement is effective as of the date you sign up and tick the checkbox to accept the Terms and Conditions or, if applicable, the date the Agreement is countersigned (the “Effective Date”). If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of the party that you represent, to this Agreement. If you don’t have the legal authority to bind your employer or the applicable entity, please do not tick the checkbox to accept these terms and Conditions (or, if applicable, do not sign this Agreement). This Agreement governs Customer’s access to and use of the Services.

 

1. Services

1.1. Facilities and Data Transfer. All facilities used to store and process Customer Data will adhere to reasonable security standards. BPM has implemented at least industry standard systems and procedures to ensure the security and confidentiality of Customer Data, protect against anticipated threats or hazards to the security or integrity of Customer Data and protect against unauthorized access to or use of Customer Data. As part of providing the Services BPM may transfer store and process Customer Data in any country in which BPM or its agents maintain facilities. By using the Services Customer consents to this transfer, processing and storage of Customer Data.

1.2. Modifications

1.2.1. To the Services. BPM may make commercially reasonable changes to the Services from time to time. If BPM makes a material change to the Services BPM will inform Customer, provided that Customer has subscribed with BPM to be informed about such change.

1.2.2. To URL Terms. BPM may make commercially reasonable changes to the URL Terms from time to time. If BPM makes a material change to the URL Terms, BPM will inform Customer by either sending an email to the Notification Email Address or alerting Customer via the Admin Console. If the change has a material adverse impact on Customer, and Customer does not agree to the change, Customer must so notify BPM via the Support site within thirty days after receiving notice of the change. If Customer notifies BPM as required, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Services Term for the affected Services. If the affected Services are renewed, they will be renewed under BPM’s then current URL Terms.

1.2.3. Customer Domain Name Ownership. The Service is provided to Customer based on domain name. If the Customer specifies one or more Customer Domain Names, BPM may at any time verify that Customer owns or controls the Customer Domain Names. If Customer does not own or control the specified Customer Domain Names, then BPM will have no obligation to provide Customer with the Services. BPM does not control the availability of any domain name Customer seeks to register or renew and will have no liability relating to Customer’s use of the domain name. Customer shall remain liable for any infringement of a third party’s rights or violations of any applicable laws with respect to the specified Customer Domain Name.

1.3. Legal Entity. The services are provided by Black Pearl Mail Limited which is a New Zealand owned and registered company.

 

2. Customer Obligations

2.1. Compliance. Customer will use the Services in accordance with the Acceptable Use Policy. BPM may make new applications features or functionality for the Services available from time to time the use of which may be contingent upon Customer’s agreement to additional terms.

2.2. Aliases. Customer is solely responsible for monitoring responding to and otherwise processing emails sent to the “abuse” and “postmaster” aliases for Customer Domain Names but BPM may monitor emails sent to these aliases to allow BPM to identify Services abuse.

2.3. Customer Administration of the Services. Customer may specify one or more Administrators through the Admin Console who will have the rights to access Admin Account(s) and to administer the End User Accounts. Customer is responsible for: (a) maintaining the confidentiality of the password and Admin Account(s); (b) designating those individuals who are authorized to access the Admin Account(s); (c) ensuring that contact information for Customer’s designated Administrators is accurate and kept up-to-date in the Admin Console and (d) ensuring that all activities that occur in connection with the Admin Account(s) comply with the Agreement. Customer agrees that BPM’s responsibilities do not extend to the internal management or administration of the Services for Customer and that BPM is merely a data-processor.

2.4. End User Consent. Customer’s Administrators may have the ability to access, monitor, use, or disclose data available to End Users within the End User Accounts. Customer will obtain and maintain all required consents from End Users to allow: (i) Customer’s access, monitoring, use and disclosure of this data and BPM providing Customer with the ability to do so and (ii) BPM to provide the Services.

2.5. Unauthorized Use. Customer will use commercially reasonable efforts to prevent unauthorized use of the Services’ and to terminate any unauthorized use. Customer will promptly notify BPM of any unauthorized use of, or access to, the Services of which it becomes aware. Unauthorized use is defined in Acceptable Use Policy. This includes, but is not limited to, using the Service for bulk email broadcasting, spamming and campaign emails.

2.6. Restrictions on Use. Unless BPM specifically agrees in writing’ Customer will not, and will use commercially reasonable efforts to make sure a third party does not: (a) sell, resell, lease or the functional equivalent, the Services to a third party (unless expressly authorized in this Agreement); (b) attempt to reverse engineer the Services or any component; (c) attempt to create a substitute or similar service through use of, or access to, the Services; (d) use the Services for High Risk Activities; or (e) use the Services to store or transfer any Customer Data that is controlled for export under Export Control Laws. Customer is solely responsible for any applicable compliance with HIPAA.

2.7. Third Party Requests. Customer is responsible for responding to Third Party Requests. BPM will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify Customer of its receipt of a Third Party Request; (b) comply with Customer’s reasonable requests regarding its efforts to oppose a Third Party Request; and (c) provide Customer with the information or tools required for Customer to respond to the Third Party Request. Customer will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact BPM only if it cannot reasonably obtain such information.

 

3. Billing and Payment

3.1. Billing. Customer will not be committed to purchase the Services for a pre-defined term, but will pay for the Services on a monthly basis. BPM will bill Customer: (i) Fees based upon the Customer’s number of user mailboxes daily usage of the Services during the preceding month; and (ii) monthly in arrears for its use of the Services. BPM will provide Customer with the monthly rate for the Services when Customer orders the Services, and will use this rate to calculate the Fees, on a prorated basis, for Customer’s daily usage during that month. BPM may change the published list price at any time with 30 day’s notice. Any partial day of Services usages will be rounded up to a full day of Services usage for the purposes of calculating Fees. Customer may pay for the Services using the payment options listed in 3.4.

3.2. Usage. Customer usage is calculated by the number of user mailboxes sending outbound messages via Customer domain(s). For clarity if the Customer opts not to use the branding service for certain End Users but their mail is still being processed by the Service then the Customer will still be charged, and is still obligated to pay for those End Users.

3.3. End User Disclosure and Audit. When subscribing to the service the Customer must accurately nominate the number of End Users using the Service. The Customer must keep End User numbers up-to-date via the Admin Console. BPM may periodically audit the amount of Customer End-Users. If the amount disclosed by Customer varies from the actual amount of End-Users then at BPM’s option BPM may update the Customer records to indicate this.

3.3.1. Notification of Update. If BPM makes a change to Customer usage numbers, BPM will inform Customer by either sending an email to the Notification Email Address or alerting Customer via the Admin Console. If the Customer does not agree to the change, Customer must so notify BPM via the Help Center within thirty days after receiving notice of the change.

3.4. Payment. All payments due are in U.S. dollars unless otherwise indicated on the Order Page or invoice.

3.4.1. Credit Card or Debit Card. Fees for orders where Customer is paying with a credit card, debit card or other non-invoice form of payment, are due at the end of the month during which Customer received the Services. For credit cards, or debit cards, as applicable: (i) BPM will charge Customer for all applicable Fees when due and (ii) these Fees are considered delinquent thirty days after the end of the month during which Customer received the Services. Customer authorizes these monthly charges to be made to its designated credit card, debit card or other non-invoice form of payment.

3.4.2. Invoices. Payments for invoices are due thirty days after the invoice date, unless otherwise specified on the Order Page, and are considered delinquent after such date.

3.4.3. Other Forms of Payment. Customer may change its payment method to those available within the Admin Console. BPM may enable other forms of payment by making them available in the Admin Console. These other forms of payment may be subject to additional terms which Customer may have to accept prior using the additional forms of payment.

3.5 Name on Statement. The name that will appear on Customer statements and invoices is Black Pearl Mail Limited

3.6. Delinquent Payments. Delinquent payments may bear interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by BPM in collecting such delinquent amounts, except where such delinquent amounts are due to BPM’s billing inaccuracies.

3.7 No Refunds: There are no refunds for The Service. Remedy in relation to service performance issues is covered in BPM SLA.

3.8. Suspension for Non-Payment.

3.8.1. Suspended Branding. Customer will have fifteen days to pay BPM delinquent Fees. If Customer does not pay BPM delinquent Fees within fifteen days, BPM will automatically suspend Customer’s branding by the Service. The duration of this suspension will be until Customer pays BPM all outstanding Fees.

3.8.2. Full Suspension. If Customer does not pay BPM delinquent Fees within thirty days, BPM will automatically suspend Customer’s use of the Services. The duration of this suspension will be until Customer pays BPM all outstanding Fees. NOTE: THIS MEANS CUSTOMER EMAIL WILL NOT BE RELAYED TO ITS INTENDED RECIPIENTS.

3.8.3. During Suspension. If Customer is on a monthly billing plan, and Customer is suspended for non-payment, BPM will stop charging Customer monthly Fees during Customer’s suspension for non-payment. If Customer has an annual commitment to BPM for the Services, BPM will continue to charge Customer monthly Fees during Customer’s suspension for non-payment and Customer must pay all outstanding Fees in order to resume its use of the Services.

3.8.4. Termination After Suspension. If Customer remains suspended for non-payment for more than sixty days, BPM may terminate Customer for breach pursuant to Section 11.

3.8.5. Taxes. Customer is responsible for any Taxes, and Customer will pay BPM for the Services without any reduction for Taxes. If BPM is obligated to collect or pay Taxes, the Taxes will be invoiced to Customer, unless Customer provides BPM with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required by law to withhold any Taxes from its payments to BPM, Customer must provide BPM with an official tax receipt or other appropriate documentation to support such payments.

3.8.6. Purchase Orders. If Customer requires a purchase order number on its invoice, Customer will inform BPM and BPM will include such purchase order number on invoices following receipt. If Customer does not provide a purchase order number, Customer waives any purchase order requirement and (a) BPM will invoice Customer without a purchase order number; and (b) Customer agrees to pay invoices without a purchase order number referenced. Any terms and conditions on a purchase order do not apply to this Agreement and are null and void.

 

4. Technical Support Services

4.1. By Customer. Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to Customer’s or End Users’ use of the Services. Customer will use commercially reasonable efforts to resolve support issues before escalating them to BPM.

4.2. By BPM. If Customer cannot resolve a support issue consistent with the above, then Customer may escalate the issue to BPM in accordance with the TSS Guidelines. BPM will provide TSS to Customer in accordance with the TSS Guidelines.

 

5. Suspension

5.1. Of End User Accounts by BPM. If BPM becomes aware of an End User’s violation of the Agreement, then BPM may specifically request that Customer Suspend the applicable End User Account. If Customer fails to comply with BPM’s request to Suspend an End User Account, then BPM may do so. The duration of any Suspension by BPM will be until the applicable End User has cured the breach, which caused the Suspension.

5.2. Emergency Security Issues. Notwithstanding the foregoing, if there is an Emergency Security Issue, then BPM may automatically Suspend the offending user. Suspension will be to the minimum extent and of the minimum duration required to prevent or terminate the Emergency Security Issue. If BPM Suspends an End User Account for any reason without prior notice to Customer, at Customer’s request, BPM will provide Customer the reason for the Suspension as soon as is reasonably possible.

 

6. Confidential Information

6.1. Obligations. Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates’ employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates’ employees and agents in violation of this Section.

6.2. Exceptions. Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.

6.3. Required Disclosure. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure.

 

7. Intellectual Property Rights; Brand Features

7.1. BPM Intellectual Property Rights. Except as expressly set forth herein the Customer acknowledges that BPM (and/or BPM suppliers) are the owner/s of all patents, trademarks, trade names, inventions, discoveries, improvements, processes, formulae, technology, data, copyrights, database rights, design rights, domain names, Confidential Information, know-how or trade secrets and any other intellectual property rights owned or used or enjoyed by BPM or any of its affiliated companies existing, whether registered or unregistered, relating to the design, manufacture, programming, operation or support of the Service.

7.1.1. Protection of BPM Intellectual Property Rights. Customer shall not, nor permit any other person to copy, alter, modify, reproduce, reverse assemble, reverse compile or enhance the Service; alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality, proprietary or trade secret, legend or notice, or any numbers, or other means of identification used on or in relation to the Service without our prior written consent; or do any act that would or might invalidate or be inconsistent with BPM intellectual property rights.

7.2. Customer Intellectual Property Rights. BPM acknowledges that the Customer owns all Intellectual Property Rights in relation to Customer Data.

7.3. Contributions. The Customer may from time to time provide BPM with feedback, comments and suggestions in relation to the Services (“Contributions”). In such instances the Customer agrees that the Contributions are not confidential and grants to BPM a non-exclusive, perpetual, sub-licensable, irrevocable, transferable and worldwide license to freely use, copy, modify, distribute, create derivative works of, license and sub-license (including through multiple tiers of distribution and licenses), communicate and otherwise exploit those Contributions (and all Intellectual Property Rights in and to them) in any way for any purpose without restriction or any acknowledgement or compensation to the Customer.

7.4. Display of Brand Features. BPM may display those Customer Brand Features authorized by Customer (such authorization is provided by Customer uploading its Brand Features into the Service) within designated areas of the Admin Console and/or Website. Customer may request for Customer Brand Features not to be used via the Support site. Through using the Service Customer authorizes BPM to display BPM Brand Features on the Service Pages and End-Users branding templates to indicate that the Services are provided by BPM. Neither party may display or use the other party’s Brand Features beyond what is allowed in this Agreement without the other party’s prior written consent.

7.5. Brand Features Limitation. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights in those Brand Features. A party may revoke the other party’s right to use its Brand Features pursuant to this Agreement with written notice to the other and a reasonable period to stop the use.

 

8. Publicity. Customer agrees that BPM may include Customer’s name or Brand Features in a list of BPM customers, online or in promotional materials. Customer also agrees that BPM may verbally reference Customer as a customer of the BPM products or services that are the subject of this Agreement. This section is subject to Section 7.5 (Brand Features Limitation).

 

9. Representations, Warranties and Disclaimers

9.1. Representations and Warranties. Each party represents that it has full power and authority to enter into the Agreement. Each party warrants that it will comply with all laws and regulations applicable to its provision, or use, of the Services, as applicable (including applicable security breach notification law). BPM warrants that it will provide the Services in accordance with the applicable
SLA.

9.2. Disclaimers. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT. BPM MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION MADE ACCESSIBLE BY OR THROUGH THE SERVICES. CUSTOMER ACKNOWLEDGES THAT THE SERVICES ARE NOT A TELEPHONY SERVICE AND THAT THE SERVICES ARE NOT CAPABLE OF PLACING OR RECEIVING ANY CALLS, INCLUDING EMERGENCY SERVICES CALLS, OVER PUBLICLY SWITCHED TELEPHONE NETWORKS.

 

10. Term

10.1. Agreement Term. This Agreement will remain in effect for the Term.

10.2. Services Term and Purchases During Services Term. BPM will provide the Services to Customer during the Services Term. Unless the parties agree otherwise in writing, End User Accounts purchased during any Services Term will have a prorated term ending on the last day of that Services Term.

10.3. Renewal. Customer is not committed to purchase the Services for a pre- defined term, but pays for the Services on a monthly basis. As a result, there is no renewal event. Rather, BPM will simply continuing billing Customer Fees based upon Customer’s daily usage of the Services during the preceding month, and Customer can cancel their service at any time. If BPM does not want the Services to renew, then it will provide Customer written notice to this effect at least fifteen days prior to discontinuing the service.

10.4. Revising Rates. BPM may revise its rates for the following Services Term by providing Customer written notice (which may be by email) at least thirty days prior to the start of the following Services Term.

 

11. Termination

11.1. Termination for Breach. Either party may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.

11.2. Termination after Trial Period. Customer is eligible for an unpaid Trial Period upon initial signup to the Service. This Trial Period lasts for ten days. At the end of fourteen days, the payment mechanism is triggered. Customer may cancel the service at any time within the Trial period through cancelling the Service in the Admin Console. If the Service is cancelled within the Trial Period then Customer will not be charged for the service and Customer agrees that, other than as described in this Section 11, BPM has no obligation to continue to hold, export or return Customer Data. Customer agrees that BPM has no liability whatsoever for deletion of Customer Data pursuant to these terms.

11.3. Effects of Termination. If this Agreement terminates, then: (i) the rights granted by one party to the other will cease immediately (except as set forth in this Section); (ii) BPM will provide Customer access to, and the ability to export, the Customer Data for a commercially reasonable period of time at BPM’s then-current rates for the applicable Services; (iii) after a commercially reasonable period of time, BPM will delete Customer Data by removing pointers to it on BPM’s active servers and overwriting it over time; and (iv) upon request each party will promptly use commercially reasonable efforts to return or destroy all other Confidential Information of the other party.

 

12. Indemnification

12.1. By Customer. Customer will indemnify, defend, and hold harmless BPM from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim: (i) regarding Customer Data or Customer Domain Names; (ii) that Customer Brand Features infringe or misappropriate any patent, copyright, trade secret or trademark of a third party; or (iii) regarding Customer’s use of the Services in violation of the Acceptable Use Policy.

12.2. By BPM. BPM will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim that BPM’s technology used to provide the Services or any BPM Brand Feature infringe or misappropriate any patent, copyright, trade secret or trademark of such third party. Notwithstanding the foregoing, in no event shall BPM have any obligations or liability under this Section arising from: (i) use of any Services or BPM Brand Features in a modified form or in combination with materials not furnished by BPM, and (ii) any content, information or data provided by Customer, End Users or other third parties.

12.3. Possible Infringement

12.3.1. Repair, Replace, or Modify. If BPM reasonably believes the Services infringe a third party’s Intellectual Property Rights, then BPM will: (a) obtain the right for Customer, at BPM’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe.

12.3.2. Suspension or Termination. If BPM does not believe the foregoing options are commercially reasonable, then BPM may suspend or terminate Customer’s use of the impacted Services. If BPM terminates the impacted Services, then BPM will provide a pro-rata refund of the unearned Fees actually paid by Customer applicable to the period following termination of such Services.

12.3.3. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defence, except that: (a) any settlement requiring the party seeking indemnification to admit liability or to pay any money will require that party’s prior written consent, such consent not to be unreasonably withheld or delayed; and (b) the other party may join in the defence with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE A PARTY’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.

 

13. Limitation of Liability

13.1. Limitation on Indirect Liability. NEITHER PARTY WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.

13.2. Limitation on Amount of Liability. NEITHER PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO BPM HEREUNDER DURING THE MONTH PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

13.3. Exceptions to Limitations. These limitations of liability apply to the fullest extent permitted by applicable law but do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, or indemnification obligations.

 

14. Miscellaneous

14.1. Notices. Unless specified otherwise herein, (a) all notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact and (b) notice will be deemed given: (i) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (ii) when verified by automated receipt or electronic logs if sent by facsimile or email.

14.2. Assignment. Customer will not assign or transfer any part of this Agreement without the written consent of BPM, except to an Affiliate. Written consent will not be unreasonably withheld if: (a) the assignee agrees in writing to be bound by the terms of this Agreement; and (b) the assigning party remains liable for obligations incurred under the Agreement prior to the assignment. Any other attempt to transfer or assign is void.

14.3. Change of Control. Upon a change of control (for example, through a stock purchase or sale, merger, or other form of corporate transaction) the party experiencing the change of control will provide written notice to the other party within thirty days after the change of control.

14.4. Force Majeure. Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the party’s reasonable control.

14.5. No Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver.

14.6. Severability. If any provision of this Agreement is found unenforceable, the balance of the Agreement will remain in full force and effect.

14.7. No Agency. The parties are independent contractors, and this Agreement does not create an agency, partnership or joint venture.

14.8. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

14.9. Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.

14.10. Governing Law. This agreement will be governed by and construed in accordance with New Zealand law. The parties submit to the exclusive jurisdiction of the New Zealand Courts in respect of all matters relating to this agreement.

14.11. Amendments. Any amendment must be in writing and expressly state that it is amending this Agreement.

14.12. Survival. The following sections will survive expiration or termination of this Agreement: Section 3, 6, 7, 11.2, 12, 13, 14, and 15.

14.13. Entire Agreement. This Agreement, and all documents referenced herein, is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. The terms located at a URL and referenced in this Agreement are hereby incorporated by this reference.

14.14. Interpretation of Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: The Order Page, the Agreement, and the terms located at any URL. If Customer signs a physical agreement with BPM to receive the Services, the physical agreement will override this online Agreement.

14.15. Counterparts. The parties may enter into this Agreement in counterparts, including facsimile, PDF or other electronic copies, which taken together will constitute one instrument.

14.16. By using the request sample notification function, you agree that Black Pearl Mail Limited may contact you in regards to Black Pearl Mail Limited products and services.

14.17. We may only provide our service to organisations with their own domain name (www.examplecompany.com) and email address (user@examplecompany.com).

14.18. We do not provide our service to anyone using a personal email address (example@gmail.com, example@hotmail.com etc.).

 

15. Definitions

“Acceptable Use Policy” means the acceptable use policy for the Services available at http://support.blackpearlmail.com/knowledgebase/articles/155511 or such other URL as BPM may provide.

“Account Manager” means the BPM business person working with Customer regarding Customer’s purchase of the Services.

“Admin Account(s)” means the administrative account(s) provided to Customer by BPM for the purpose of administering the Services. The use of the Admin Account(s) requires login details which could be provided by a third party (for example google ID), or will be chosen by the Customer.

“Admin Console” means the online tool provided by BPM to Customer for use in managing, reporting and certain other administration functions.

“Administrators” mean the Customer-designated technical personnel who administer the Services to End Users on Customer’s behalf.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party.

“Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.

“Confidential Information” means information disclosed by a party to the other party under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances. Customer Data is Customer’s Confidential Information.

“Customer Data” means data, including email, provided, generated, transmitted or displayed via the Services by Customer or End Users.

“Customer Domain Names” mean the domain names owned or controlled by Customer which will be used in connection with the Services and specified in the Order Page.

“Emergency Security Issue” means either: (a) Customer’s use of the Service in violation of the Acceptable Use Policy, which could disrupt: (i) the Services; (ii) other customer’s use of the Services; or (iii) the BPM network or servers used to provide the Service; or (b) unauthorized third party access to the Service.

“End Users” means the individuals Customer permits to use the Service.

“End User Account” means a BPM-hosted account established by Customer through the Service for an End User.

“Fees” means the amounts invoiced to Customer by BPM for the Service as described in an Order Page.

“High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.

“HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as may be amended from time to time, and any regulations issued thereunder.

“Initial Services Term” means the term for the applicable Services beginning on the Service Commencement Date and continuing for the duration set forth on the Order Page.

“Intellectual Property Rights” means current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and other similar rights.

“Notification Email Address” means the email address designated by Customer to receive email notifications from BPM. Customer may change this email address through the Admin Console.

“Order Page” means the online order page Customer completes in signing up for the Services or attached to this Agreement, and which contains: (i) the Services being ordered; (ii) Fees; (iii) number of, and Initial Services Term for, End User Accounts; (iv) the applicable form of payment; and (v) Customer Domain Name(s) or Trial Domain Name(s), as applicable.

“Service Commencement Date” is the date upon which BPM makes the Services available to Customer, and will be within one week of BPM’s receipt of the completed Order Page, unless otherwise agreed by the parties.

“Service Pages” mean the web pages displaying the Services to End Users.

“Services” means the applicable BPM Service provided by BPM and used by Customer under this Agreement.

“Services Term” means the Initial Services Term and all renewal terms for the applicable Services.

“SLA” means the Service Level Agreement located here: http://support.blackpearlmail.com/knowledgebase/articles/155791, or such other URL as BPM may provide.

“Spamming” means sending unsolicited e-mail indiscriminately to multiple mailing lists, individuals, or newsgroups.

“Support site” is the BPM website available at http://support.blackpearlmail.com for providing assistance with setup and troubleshooting any problems with the Service.

“Suspend” means the immediate disabling of access to the Services, or components of the Services, as applicable, to prevent further use of the Services.

“Taxes” means any duties, customs fees, or taxes (other than BPM’s income tax) associated with the sale of the Services, including any related penalties or interest.

“Term” means the term of the Agreement, which will begin on the Effective Date and continue until the earlier of (i) the end of the last Services Term or (ii) the Agreement is terminated as set forth herein.

“Third Party Request” means a request from a third party for records relating to an End User’s use of the Services. Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from the End User permitting the disclosure.

“TSS” means the technical support services provided by BPM to the Administrators during the Term pursuant to the TSS Guidelines.

“TSS Guidelines” means BPM’s technical support services guidelines then in effect for the Services. TSS Guidelines are at the following URL: http://support.blackpearlmail.com/knowledgebase/articles/155555 or such other URL as BPM may provide.

“URL Terms” means the “Acceptable Use Policy,” the “SLA,” and the “TSS Guidelines.”