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Updated January 9th, 2021
TERMS OF SERVICE between McCrossen Consulting LLC. (“we” or “McCrossen”) and the customer who Order/Contracts McCrossen services (“you” or “Customer”).
THE AGREEMENT. Your use of McCrossen services is governed by these Terms of Service, the Acceptable Use Policy, any applicable Country Specific Terms, and the terms of your Order/Contract. Your Order/Contract may have additional terms that apply to the particular services in your Order/Contract. When we use the term “Agreement” in any of the Order/Contract, Terms of Service, or Acceptable Use Policy, we are referring collectively to all of them, including any product specific terms that apply to the Services. Sections 1 – 31 of these Terms of Service state the general terms applicable to all Services, and Sections 32 – 44 state additional terms that will apply only if you elect to purchase the particular Services described in those sections. Your use of the Services includes the ability to enter into agreements and make purchases electronically. You acknowledge that your electronic assent constitutes your acceptance to the Agreement for each electronic purchase or transaction you enter. If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have the legal authority to bind that entity to this Agreement.
1. DEFINED TERMS. Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the Cloud Acceptable Use Policy posted at https://mccrossenmarketing.com as of the date you sign the Order/Contract, as it may be amended pursuant to Section 21 below.
“API” means application programming interface.
“Affiliate” means any and all legal entities which now or hereafter the ultimate parent of McCrossen controls. For the purpose of this definition, “control” shall mean an entity, directly or indirectly, holding more than fifty per cent (50%) of the issued share capital, or more than fifty per cent (50%) of the voting power at general meetings, or which has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such legal entity.
“Business Day” means 9:00 a.m. – 5:00 p.m. Monday through Friday, United States central time, excluding federal public holidays in the United States.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) unpublished prices and other terms of service, audit and security reports, product development plans, nonpublic information of the parties relating to its business activities or financial affairs, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party. Confidential Information shall not include Customer Data.
“Country Specific Terms” means the addendum or addenda that may be incorporated into your Agreement if a portion of your Services are to be provided from a non-United States jurisdiction for which we have special legal terms and that are outlined in Section 42 of these Terms of Service.
“Customer Data” means all data, records, files, input materials, reports, forms and other such items that are received, stored, or transmitted using the Services.
“Hosted System” means a combination of hardware, software and networking elements that comprise an information technology system.
“Order/Contract” means: (i) the online Order/Contract that you submit or accept for the Services, (ii) any other written Order/Contract (either in electronic or paper form) provided to you by McCrossen for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically, and (iii) your use or provisioning of the Services through the McCrossen control panel or through an API.
“Personally Identifiable Information” or “PII” means: (i) a combination of any information that identifies an individual with that individual’s sensitive and non-public financial, health or other data or attribute, such as a combination of the individual’s name, address, or phone number with the individual’s social security number or other government issued number, financial account number, date of birth, address, biometric data, mother’s maiden name, or other personally identifiable information; (ii) any “non-public personal information” as that term is defined in the Gramm-Leach-Bliley Act found at 15 USC Subchapter 1, § 6809(4), and (iii) “protected health information” as defined in the Health Insurance Portability and Accountability Act found at 45 CFR §160.103.
“Services” means the software and services described in the Order/Contract and includes any services which you self-provision through the McCrossen control panel or which you utilize via an API.
“Support” means (i) McCrossen employees with training and experience relative to the Services will be available ‘live’ by telephone, chat or ticket twenty-four hours per day, seven days per week, year round and/or (ii) any additional level of support offered by McCrossen applicable to the specific Services Order/Contracted by you.
2. MCCROSSEN’S OBLIGATIONS. Contingent on McCrossen’s acceptance of your Order/Contract, and subject to these Terms of Service, McCrossen agrees to provide the Services and Support described in your Order/Contract. McCrossen agrees to follow security procedures at least as stringent, in McCrossen’s reasonable judgment.
3. YOUR OBLIGATIONS. You agree to do each of the following: (i) comply with applicable law and the Acceptable Use Policy (ii) use software in compliance with Section 19 (iii) pay when due the fees for the Services, (iv) use reasonable security precautions in light of your use of the Services, including encrypting any PII transmitted to and from, and while stored on, the Services (including the underlying servers and devices) (v) cooperate with McCrossen’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement, (vi) keep your billing contact and other account information up to date; and (vii) immediately notify McCrossen of any unauthorized use of your account or any other breach of security. In the event of a dispute between us regarding the interpretation of applicable law or the AUP, McCrossen’s reasonable determination shall control.
Customer Data Security: In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of Customer Data. McCrossen’s security obligations with respect to Customer Data are limited to those obligations described in Section 2 above. McCrossen makes no other representation regarding the security of Customer Data. Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Data used with the Services.
You must maintain the security of your login credentials and may not share login credentials except as required to establish and authorize users in your account. You are responsible for designating authorized users under your account and limiting access of login credentials associated with your account.
4. ACCESS TO THE SERVICES. You may access the Services via the online McCrossen Control panel, or via a McCrossen-provided API. McCrossen may modify its control panel or APIs at any time, or may transition to new API’s. Your use of any code or SDK (Software Development Kit) you download from the McCrossen website is governed by the license terms included with the code in the file named “COPYING” or “LICENSE” or like caption.
5. SERVICE LEVEL AGREEMENTS. Service Level Agreements are located at https://mccrossenmarketing.com/service-level-agreement (“SLA’s”). The terms there are incorporated herein by reference as to the applicable Services.
McCrossen must have administrator access to your Services in Order/Contract to provide the Managed Operations Service Level. If you use Cloud Services with a Managed Operations Service Level you are responsible for updating McCrossen about password changes that limit McCrossen’s ability to manage or monitor the Services. No credits or refunds will be issued for failures caused by restrictions on McCrossen’s access to your Services.
6. TERM. The initial term for each Order/Contract begins on the date we make the Services available for your use and continues for the period stated in the Order/Contract. If no period is stated in the Order/Contract, then the initial term shall be one month. Upon expiration of the initial term, the Order/Contract will automatically renew for successive renewal terms of one month each, unless and until one of us gives the other a written notice of non-renewal prior to the expiration of the initial term, or then-current renewal term, as applicable. You must follow McCrossen’s non-renewal process accessible from the McCrossen control panel to give an effective notice of non-renewal.
7. FEES. McCrossen will charge you fees in accordance with your Order/Contract. Unless you have made other arrangements, McCrossen will charge your credit card without invoice on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at McCrossen’s option. Unless otherwise agreed in the Order/Contract, your billing cycle will be monthly, beginning on the date that McCrossen first makes the Services available to you. McCrossen may suspend all Services (including Services provided pursuant to any unrelated Order/Contract or other agreement we may have with you) if our charges to your credit card are rejected for any reason. McCrossen may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days, and McCrossen brings a legal action to collect, or engages a collection agency, you must also pay McCrossen’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Any “credit” that we may owe you, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to you as a refund. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide McCrossen with accurate factual information to help McCrossen determine if any tax is due with respect to the provision of the Services, and if McCrossen is required by law to collect taxes on the provision of the Services, you must pay McCrossen the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. You authorize McCrossen to obtain a credit report at any time during the term of the Agreement. A late fee past the due date is assessed per the terms of your contract.
8. FEE INCREASES. For those Services provided on a month-to-month term, we may increase fees at any time on thirty (30) days advance written notice. If your Order/Contract contains Services with a specified term longer than one month, then we may increase your fees effective as of the first day of the renewal term that first begins thirty (30) days from the day of our written notice of a fee increase. In addition, if during the initial term or any renewal term there is an increase in the Producer Price Index over the Producer Price Index reported for the month in which you signed your Order/Contract, we may increase your fees by the same percentage as the increase in the Producer Price Index; provided that we may not increase your fees pursuant to this sentence more often than once per twelve months, and we must give you at least thirty (30) days advance written notice of the increase. The “Producer Price Index” means the Producer Price Index for Finished Goods, WPUSOP3000, not seasonally adjusted, and first published as “preliminary” data by the United States Bureau of Labor Statistics in its PPI Detailed Report or successor publication. For historical information on the Producer Price Index, you may visit the Bureau of Labor Statistics website. (Example: if the Producer Price Index for the month in which you sign the Order/Contract is 186, and then increases in a subsequent month during the term of the Order/Contract to 195, we may increase your fees by up to 4.8%).
9. SUSPENSION. We may suspend the Services without liability if: (i) we reasonably believe that the Services are being used (or have been or will be used) in violation of the Agreement, (ii) we discover that you are, or are affiliated in any manner with, a person who has used similar services abusively in the past; (iii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iv) we reasonably believe that the Services have been accessed or manipulated by a third party without your consent, (v) we reasonably believe that suspension of the Services is necessary to protect our network or our other customers, (vi) a payment for the Services is overdue, or (vii) suspension is required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension are based, unless we determine, in our reasonable commercial judgment, that a suspension on shorter or contemporaneous notice is necessary to protect McCrossen or our other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we may continue to charge you the fees for the Services during the suspension, and may charge you a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the Services.
10. TERMINATION FOR CONVENIENCE. Unless in contract, you may terminate the Agreement for convenience at any time; provided that any recurring or minimum fees for the month in which you terminate remain due and payable for such month.
11. TERMINATION FOR BREACH. We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order/Contract , or if you are an entity or fiduciary, the individual submitting the Order/Contract did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue, and you do not pay the overdue amount within three (3) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds, we must give you a reasonable opportunity to migrate your environment out of McCrossen in an Order/Contract fashion, (v) you use the Services in violation of the AUP and fail to remedy the violation within ten (10) days of our written notice, (vi) you violate the AUP more than once, even if you cure each violation, or (vii) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure.
You may terminate the Agreement for breach on written notice if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within five (5) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
12. ACCESS TO DATA.
12.1 You will not have access to your data stored on the Services during a suspension or following termination.
12.2 You have the option to create a snapshot or backup of your Servers or Databases, respectively, however, it is your responsibility to initiate the snapshot or backup and test your backup to determine the quality and success of your backups. You will be charged for your use of backup services as listed in your Order/Contract.
12.3 Although the McCrossen services may be used as a backup service, you agree that you will maintain at least one additional current copy of your programs and data stored on the Servers somewhere other than on the system. If you utilize McCrossen backup services, you are responsible for performing and testing restores as well as testing your systems and monitoring the integrity of your data.
13. ACCESS TO YOUR CUSTOMER DATA OR — USE OF THE SERVICES. McCrossen is not responsible to you for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from McCrossen’s failure to meet its security obligations stated in the Agreement. You are responsible for the use of the Services by any employee of yours, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
McCrossen agrees that it will not use or disclose Customer Data. Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
14.1 We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Customer Data, Confidential Information, and property. McCrossen has no obligation to provide security other than as stated in this Agreement or applicable Order/Contract. We disclaim any and all warranties not expressly stated in the Agreement, including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen, including the suitability as it relates to your Customer Data and the security of your Hosted System. The Services are provided AS IS, subject to any applicable Service Level Agreement (as described in Section 5 above). Any voluntary services we may perform for you at your request and without any additional charge are provided AS IS, including any services that are deemed Unsupported.
14.2 Some of the services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those services in a manner that complies with the applicable requirements.
14.3 You are solely responsible for determining the suitability of the Services for your use in light of any applicable regulations such as HIPAA, GLB, and in compliance with the EU Data Privacy requirements or other applicable data privacy laws and regulations.
15. EXPORT MATTERS. You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom McCrossen is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of Cuba, Iran, Libya, Sudan, North Korea or Syria or any country that is embargoed or highly restricted under United States export regulations.
16. CONFIDENTIAL INFORMATION. Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
(i) to our respective service providers, agents, and representatives, provided that such service providers, agents, or representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement.
(ii) to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us believes, in good faith, that the other’s conduct may violate applicable criminal law as required by law; or
(iii) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven (7) days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven (7) days advance notice is not reasonably feasible), unless the law forbids such notice.
17. LIMITATION ON DAMAGES. Our obligations to you are defined by this Agreement. We are not liable to you for failing to provide the Services unless the failure results from a breach of an applicable Service Level Agreement, or results from our gross negligence or willful misconduct. The credits stated in any applicable Service Level Agreement are your sole and exclusive remedy for our failure to meet those guarantees for which credits are provided unless such failure is due to McCrossen’s willful misconduct.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from McCrossen’s negligence, the maximum aggregate monetary liability of McCrossen and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed the greater of (i) the amount of fees you paid for the Services for the six months prior to the occurrence of the event giving rise to the claim, or (ii) Five Hundred Dollars ($500.00).
18. INDEMNIFICATION. If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “McCrossen Indemnitees”) are faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, or violation of Section 15 (Export Matters) of these Terms of Service, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine, or other amount that is imposed on the McCrossen Indemnitees as a result of the claim. Your obligations under this Section include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them. You must also pay reasonable attorney fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with us.
19. SOFTWARE. All software that we provide for your use is subject to the terms of this Agreement, including software that we may authorize you to install on devices located outside of our datacenter. You may not use any software we provide after the expiration or termination of this Agreement, or the particular service for which it was provided, and you may not copy the software unless expressly permitted by the Agreement. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to us. Any additional restrictions which may apply to software we utilize in the performance of the Services will be specified in the applicable Order/Contract.
20. WHO MAY — USE THE SERVICES. You may not resell the Services, except as provided below or otherwise restricted by McCrossen.
21. CHANGES TO THE ACCEPTABLE — USE POLICY. We may change our Acceptable Use Policy, provided that any changes are reasonable and consistent with applicable law and industry norms. Any such changes made during the term of your Agreement will become effective to your account upon the first to occur of: (i) renewal, (ii) your execution of a new/additional Order/Contract for your account that incorporates the revised AUP, or (iii) thirty (30) days following our notice to you describing the change. If the change materially and adversely affects you, you may terminate the Agreement by giving us written notice of termination on such grounds no later than thirty (30) days following the date the change became effective for your account, and we will not enforce the change with respect to that account for thirty (30) days following the date of your notice. If you terminate the Services because the change adversely affects you, we may decide not to enforce that change with respect to your account and keep your Agreement in place for the remainder of the term.
22. NOTICES. Your routine communications regarding the Services should be sent to your McCrossen project manager using your customer service email address, phone or service portal. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first-class United States mail to:
McCrossen Consulting LLC
11844 Bandera Rd #300
Helotes, Texas 78023
McCrossen’s routine communications regarding the Services and legal notices will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier, except that McCrossen may give notice of an amendment to the AUP by posting the notice on the McCrossen Control panel. Notices are deemed received as of the time delivered, or if that time does not fall within a Business Day, as defined below, as of the beginning of the first Business Day following the time delivered, except that notices of AUP amendments are deemed delivered as of the first time that you log on to the McCrossen Control panel after the time that the notice is posted. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
23. NO HIGH RISK — USE. You may not use the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage. For example, you may not use, or permit any other person to use, the Services in connection with aircraft or other modes of human mass transportation, nuclear or chemical facilities, or Class III medical devices under the Federal Food, Drug and Cosmetic Act.
24. OWNERSHIP OF INTELLECTUAL PROPERTY. Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by McCrossen during the performance of the Services shall belong to McCrossen unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
25. IP ADDRESSES. Upon expiration or termination of the Agreement, you must discontinue use of the Services and relinquish use of the IP addresses and server names assigned to you by McCrossen in connection with Services, including pointing the DNS for your domain name(s) away from McCrossen Services. You agree that McCrossen may, as it determines necessary, make modifications to DNS records and zones on McCrossen managed or operated DNS servers and services.
26. SERVICES MANAGEMENT AGENT. You agree that you will not interfere with any services management software agent(s) that McCrossen installs on your Services. McCrossen agrees that its agents will use only a minimal amount of computing resources, and will not interfere with your use of your Services. McCrossen will use the agents to track system information so that it can more efficiently manage various service issues. Your Services will become “Unsupported” as described in Section 34 below if you disable or interfere with our services management software agent(s). You agree that McCrossen may access your Services to reinstall services management software agents if you disable them or interfere with their performance.
27. ASSIGNMENT/SUBCONTRACTORS. You may not assign the Agreement without McCrossen’s prior written consent. We may assign the Agreement in whole or in part to an Affiliate with sufficient financial standing in Order/Contract to meet its obligations under this Agreement or as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. McCrossen may use third party service providers to perform all or any part of the Services, but McCrossen remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if McCrossen performed the Services itself.
28. SERVICES PROVIDED BY THIRD PARTIES
McCrossen personnel may from time to time recommend third party software or other products and services for your consideration and may also make available to you third party products or services, including availability of third party applications through deployment or implementation tools. MCCROSSEN MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM MCCROSSEN. Your use of any such third-party products and services is governed by the terms of your agreement with the provider of those products and services.
29. FORCE MAJEURE. Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
30. GOVERNING LAW, LAWSUITS. The Agreement is governed by the laws of the State of Texas, exclusive of any Texas choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Each of us agrees that any dispute or claim, including without limitation, statutory, contract or tort claims, relating to or arising out of this Agreement or the alleged breach of this Agreement, shall, upon timely written request of either of us, be submitted to binding arbitration. The party asserting the claim may elect to have the arbitration be in-person, telephonic or decided based on written submissions. The arbitration shall be conducted in the city in which you reside. The arbitration shall proceed in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) in effect at the time the claim or dispute arose. The arbitration shall be conducted by one arbitrator from AAA or a comparable arbitration service who is selected pursuant to the applicable rules of the AAA. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either you or we may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. We will pay the fee for the arbitrator and your filing fee, to the extent that it is more than a court filing fee. We agree that we will not seek reimbursement of our fees and expenses if the arbitrator rules in our favor. You and we waive any right to a trial by jury, so that disputes will be resolved through arbitration. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
31. SOME AGREEMENT MECHANICS. These Terms of Service may have been incorporated in your Order/Contract by reference to a page on the McCrossen website. Although we may from time to time revise the Terms of Service posted on that page, those revisions will not be effective as to an Order/Contract that we accepted prior to the date we posted the revision, and your Order/Contract will continue to be governed by the Terms of Service posted on the effective date of the Order/Contract until the earlier of (i) your acceptance of any amended Terms of Service, (ii) your continued use of the Services after notice of any amended Terms of Service, or (iii) thirty days after the date McCrossen posts amended Terms of Service on the McCrossen website. In addition, if over time you sign multiple Order/Contracts for a single account, then the Terms of Service incorporated in the latest Order/Contract posted on the effective date of the latest Order/Contract will govern the entire account. McCrossen may accept or reject any Order/Contract you submit in its sole discretion. McCrossen’s provisioning of the Services described in an Order/Contract shall be McCrossen’s acceptance of the Order/Contract.
An Order/Contract may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail, that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order/Contract shall be deemed to be an amendment to that Order/Contract, notwithstanding the fact that the correspondence does not expressly refer to the Order/Contract.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following Order/Contract: Order/Contract, Terms of Service, and the Acceptable Use Policy. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect, and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.” Sections 1, 7, 16, 17, 18, 22, 24, 30, 31, and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
The Agreement may be signed in multiple counterparts, which, taken together, will be considered one original. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
This Agreement is the complete and exclusive agreement between you and McCrossen regarding its subject matter and supersedes and replaces any prior agreement, understanding, or communication, written or oral.
ADDITIONAL TERMS FOR CERTAIN SERVICES
32. INTENTIONALLY OMITTED.
33. DOMAIN NAME REGISTRATION SERVICES. If you register, renew, or transfer a domain name through McCrossen, McCrossen will submit the request to its domain name services provider (the “Registrar”) on your behalf. McCrossen’s sole responsibility is to submit the request to the Registrar. McCrossen is not responsible for any errors, omissions, or failures of the Registrar. Your use of domain name services is subject to the Registrar’s applicable legal terms and conditions. You are responsible for closing any account with any prior reseller of or registrar for the requested domain name, and you are responsible for responding to any inquiries sent to you by the Registrar.
34. UNSUPPORTED CONFIGURATION ELEMENTS OR SERVICES. If you ask us to implement a configuration element (hardware or software) or other service in a manner that is not customary at McCrossen, or that is in “end of life” or “end of support” status, we may designate the element or service as “unsupported,” “non-standard,” “best efforts,” “reasonable endeavor,” “one-off,” “EOL,” “end of support,” or with like term in the Order/Contract (referred to in this Section as an “Unsupported Service”). McCrossen makes no representation or warranty whatsoever regarding any Unsupported Service, and you agree that McCrossen will not be liable to you for any loss or damage arising from the provision of the Unsupported Service. The Service Level Agreement will not apply to the Unsupported Service, or any other aspect of the Services that is adversely affected by the Unsupported Service. You acknowledge that Unsupported Services may not interoperate with McCrossen’s other services.
35. CLOUD SERVER IMAGES. If you provision a McCrossen Cloud Server or other Service using a non-standard or non-McCrossen image or installation (even if such image is made available to you by McCrossen during configuration, provided that it is identified as such), then McCrossen shall have no obligation to provide Support for that Service, and any Support provided shall be on an AS IS basis.
36. MAIL SERVICES.
36.1 Access. You may access you Mail Services over the web via the McCrossen Control panel, or via a McCrossen-provided API. McCrossen may modify its control panel or APIs at any time, or may transition to new APIs.
36.2 Management of the Service. McCrossen will provision your initial mail environment, but you are otherwise responsible for managing your mail service, including adding mailboxes, adding wireless or other service components, adding storage capacity, managing settings, and configuring spam filters.
36.3 Filtering. McCrossen will provide email filtering services designed to filter spam, phishing scams, and email infected with viruses. McCrossen recommends that you employ additional security measures, such as a desktop virus scanner and firewall, on computers that are connected to the Internet. Email that is quarantined by the filtering system is excluded from the Service Level Agreements. McCrossen will use commercially reasonable efforts to deliver your email messages. Third party filtering services may from time to time prevent successful delivery of your messages. You acknowledge that the technological limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. You hereby release McCrossen and its employees, agents, affiliates, and third party suppliers from any liability for damages arising from the failure of McCrossen’s filtering services to capture unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient as a result of a filtering service used by the recipient or the recipient’s email service provider.
36.4 Memory Limitations. Mail that exceeds the storage limit when received may be permanently lost. You may adjust the storage capacity of your individual mailboxes via the control panel, and it is your obligation to monitor and adjust the storage capacity of individual mailboxes as needed. An individual email message that exceeds the per-message size limit of 50 MB (including attachments) may also be permanently lost.
36.5 Content Privacy. Your email messages and other items sent or received via the mail service will include: (i) the content of the communication (“content”), and (ii) certain information that is created by the systems and networks that are used to create and transmit the message (the “message routing data”). The content includes things like the text of email messages and attached media files, and is generally the information that could be communicated using some media other than email (like a letter, telephone call, CD, DVD, etc.) The message routing data includes information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information, and is generally information that would not exist but for the fact that the communication was made via email. The content of your items is your Confidential Information and is subject to the restrictions on use and disclosure described in these Terms of Service. However, you agree that we may view and use the message routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products. In addition, you agree that we may disclose message routing data to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
36.6 Usage Data. We collect and store information related to your use of the Services, such as use of SMTP, POP3, IMAP, and filtering choices and usage. You agree that we may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that we do not include any information that could be used to identify you.
36.7 Cloud Sites Mail Relays. You agree that if you utilize the Cloud Sites product offering, you will not send bulk or commercial e-mail to more than five-thousand (5,000) users per day, at a rate of two-hundred and fifty (250) messages every twenty minutes.
37. CONTENT DELIVERY SERVICES. Content that you distribute using our content delivery services may not be as secure as content stored on the Cloud. You should use our content deliver services only for content that you intend to distribute to the public via your website.
38. SERVICE OPTIMIZATION AND CROWDED HOST PROCESS. By using the Services, you agree that we may establish new procedures for your use of the Services as we deem necessary for the optimal performance of the Services. By using Cloud Servers, you also agree that we may migrate your data within the same datacenter if we determine in our reasonable judgment that server migration is required to remediate service degradation or shared resource constraints. In each case we will give you reasonable advance notice and use all reasonable endeavors to minimize the effect that such change will have on your use of the Services.
39. TEST SERVICES. If you use any Services that have been designated as a “Beta” service, limited release, pilot test, early access program, preview, or similar designation, then your use of that Service is subject to the terms in your contract.
40. MCCROSSEN API CODE SUPPORT. If you use McCrossen API Code Support, then the addendum as of the date you accept the Order/Contract for McCrossen API Code Support is part of the Agreement.
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