EXHIBIT 1 - TERMS AND CONDITIONS
The amount indicated as Total Minimum Monthly Charge (Min.) on this Agreement represents the minimum amount due from Customer each month. For Services purchased on a site-wide basis, Customer will activate Services for all End-Users.
The Effective Date begins the moment the user signs up for the Services. BILLING START DATE.
Billing Start Date shall be 30 days from Activation of services, after the free 30 day trial period has ended.
The agreement is month to month and can be canceled at any point by Customer logging in to the administrator console and canceling the subscription.
This Agreement shall be renewed automatically for a period of one (1) month unless Customer cancels the subscription in the administrator console prior to the renewal. The first renewal date is 30 days after your free trial has ended or the 1st calendar day of each month, whichever comes sooner. Subsequent renewal dates will always occur on the 1st of the calendar month.
Intertune and/or its partners maintain all Intellectual and Property rights to the Services that it sells to the Customer. Intertune reserves the right to change or enhance the Services at any time.
Except as set forth in this Agreement, Intertune disclaims all warranties with regard to the Service, including all implied warranties of fitness for a particular use. Intertune does not endorse any tool or software as being ideal for a particular use. In addition, Intertune offers no guarantees or warranties with regard to the results of using its Services.
Intertune and Customer both acknowledge that in the course of this Agreement, either party may obtain certain confidential and/or propriety information. Each party hereby agrees that all such information communicated to it by the other party, its affiliates, or customers, whether before or after the Effective Date, shall be used only for the purpose of this Agreement, and shall not be disclosed without the prior written consent of the other party, except as may be necessary by reason of legal, accounting, or regulatory requirements beyond either party's reasonable control. Customer grants Intertune the right to publicly disclose Customer's use of Intertune's services. In no case shall such disclosure include the Terms and Conditions of this Agreement.
All support will be limited to the usage of Intertune's Service alone, and will not include any support on other Customer services. Customer is responsible for providing support to Customer's End-Users.
Intertune assumes no responsibility for any problems or damages that may occur on the Customer's hardware. Intertune also assumes no responsibility for problems or damages that may occur to other software that resides on the Customer's hardware.
Intertune shall have no agreement or otherwise for special, incidental, consequential, punitive, or exemplary damages even if Intertune has been advised of the possibility of such damages. In no event shall Intertune's liability for any reason and upon any cause of action whatsoever exceed the payments made by Customer to Intertune during any term of this Agreement. Neither party shall be liable to the other pursuant to this Agreement for any amounts representing loss of profits or loss of business.
Intertune shall not be liable to the Customer for any delay or failure to provide access to the Service due to causes beyond its reasonable control.
Customer may not assign, without prior written consent of Intertune, its rights, duties or obligations under this Agreement, in whole or in part, to any person or entity. Any such attempted assignment or sub-license shall be void and shall constitute a material breach of this Agreement.
The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed a waiver of any further right hereunder.
This Agreement, and the schedules attached hereto constitute the entire Agreement between the parties hereto pertaining to the subject matter hereof, and any and all other written or oral agreements existing between the parties hereto are expressly canceled. The schedules attached to this Agreement are an integral part of this Agreement and are incorporated into this Agreement.
This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Subject to the Section titled "Arbitration", the parties hereto consent to the jurisdiction of the state and federal courts located in San Diego County, California.
Any controversies arising out of the terms of this Agreement or its interpretation shall be settled through a mediation-arbitration approach in San Diego County, California. The parties agree to first try to resolve the dispute informally with the help of a mutually agreed-upon mediator. If it proves impossible to arrive at a mutually satisfactory solution through mediation, the parties agree to submit their dispute, except for collection actions for fees due, to binding arbitration in accordance with JAMS, and the judgment upon such award may be entered in any court having jurisdiction thereof. The parties agree to conduct such mediation and arbitration.
If any action at law or in equity (including mediation and arbitration) is necessary to enforce or interpret the terms of any of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of this Agreement shall be interpreted as if such provision were so excluded, and (c) the balance of this Agreement shall be enforceable in accordance with its terms.
EXHIBIT 2 - SUMMARY SERVICES DESCRIPTION
Intertune's Spam Protection Service encompasses all of Intertune's content security, connection management, and delivery control features designed to protect email systems from junk email (spam), viruses and threatening intrusions from attackers.
Key features of the Service include:
Powerful Spam Filtering
Real-Time Virus Protection
Proactive SMTP Connection Security
Email Delivery Management
Real-Time Monitoring and Graphic Reports
ATTACHMENT A - SERVICE LEVEL AGREEMENT
The terms of this Service Level Agreement ("SLA") are part of the agreement ("Agreement") between Intertune. ("Intertune") and the Customer identified in this Agreement and further defines the scope of service availability goals and commitments, operating and reporting practices, remedies and certain obligations of Intertune and Customer in addition to Exhibit 1-Terms and Conditions ("Terms").
Intertune's Services shall be operational 99.999%, i.e., Outage Percentage shall be less than 0.001% in any given month. "Outage" means that filtering is not applied to Customer's email as specified in Customer's configuration records due to reasons within Intertune's sphere of control and responsibility as reasonably determined by Intertune based on its records and data. Outage shall not include service suspension during times of scheduled maintenance in accordance with Section 5 of this SLA. "Outage Percentage" means the percent of time during any given month during which an Outage occurred.
When Customer notices an Outage or believes that there has been an Outage, Customer will inform Intertune's Customer Support Department in writing or by email to email@example.com within seven (7) days of first notice. Failure to comply with this requirement will forfeit Customer's right to receive a remedy for the Outage.
If an Outage occurs despite the fact that Customer fulfills all of its obligations under the Agreement, and if none of the exceptions in Section 4 of this SLA applies, Customer shall have the following remedy ("Additional Remedy"): Intertune will provide Customer with a pro-rata credit on Customer's fee for the month in which the outage occurred. The pro-rata credit shall be calculated by multiplying the Outage Percentage with Customer's Total Minimum Monthly Charge attributed to the month during which the Outage occurred. Furthermore, if Customer experiences an Outage for three consecutive calendar months, Customer has the option to terminate the Agreement. In no event shall a Customer's pro-rata credit be greater than the Total Minimum Monthly Charge.
Customer shall not have any remedies under the Terms or this SLA in connection with any failure of the Intertune Service that is caused by or associated with circumstances beyond Intertune's reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, failure of third party software or inability to obtain raw materials, supplies, or power or equipment needed for performance under this SLA; scheduled maintenance and upgrades; DNS issues outside the direct control of Intertune; outage or error of any Intertune measurement system; Customer's acts or omissions, including without limitation, any negligence, willful misconduct, or use of the Intertune Services in breach of the Agreement.
Intertune will provide scheduled maintenance that will include any maintenance at third party data centers at which Intertune Services are hosted and any maintenance on Intertune's servers and software. In all cases where maintenance will be performed, Customer will be informed at least 48 hours in advance. Intertune will make all reasonable attempts to ensure that scheduled maintenance that affect the availability of Intertune Services for more than thirty (30) minutes is performed between 12:00 midnight and 5:00AM Pacific Standard Time, Monday through Friday, or between 12:00 noon to 5:00AM Pacific Standard Time on Saturdays, Sunday, and holidays.
Customers may at any time opt out of receiving marketing and other promotional information from Intertune. Customers may opt out by following the link at the bottom of the emails they receive from us. Customers will still be included in certain system and maintenance notifications that are sent out.