Pronet Hosted Exchange Service Agreement,
Terms of Service & End User License Agreement
THIS SERVICE AGREEMENT (the “Agreement”), is made and entered into by and between Pronet Solutions Corporation (“Pronet”), a Texas corporation, and You, as defined in Your executed Pronet Hosted Exchange & Spam Filter Order Form and Purchase Agreement with Pronet. By using and/or accessing the services described below, You hereby agree to all terms and conditions contained herein. Additionally, You agree to be bound by the Pronet Hosted Spam Filter terms of service and end user license agreement available online at http://pronetcorp.com/terms/hostedspamfilter.
1. Hosted Exchange Service
Subject to the terms and conditions of this Agreement, Pronet shall provide You with a managed service that provides implementation, management, and support (the “Hosted Exchange Service” or “Service”) of Microsoft’s Exchange Online Service (“Exchange Online”), a hosted enterprise messaging solution based on Microsoft Exchange Server and provided by Microsoft Corporation, during the term of this Agreement.
2. Fees, Billing, and Payment
You will pay monthly service fees and other fees for the Hosted Exchange Service (the “Fees”) to Pronet or to Pronet’s authorized reseller in the amount and in the manner set forth in Your executed Pronet Hosted Exchange & Spam Filter Order Form and Purchase Agreement with Pronet. The monthly service fees are calculated by reference to the number of Mailboxes as described herein utilizing Exchange Online at the start of each billing period at Pronet’s then-current rates published at Pronet’s web site or as set out in any service order or change request executed between You and Pronet. Service fee calculations for Exchange Online may be subject to archive storage consumption by You, in accordance with rates published at Pronet’s web site or in any service order or change request executed between You and Pronet.
2.2 Monthly Commitment
You must maintain a Minimum Monthly Commitment Level (“MMCL”) of Service. The MMCL shall be defined as the dollar amount as specified within Your executed Pronet Hosted Exchange & Spam Filter Order Form and Purchase Agreement with Pronet. Should Your use of the Hosted Exchange Service drop below the MMCL during the contract term, You will be billed and are obligated to pay at minimum the MMCL fee as contained within Your executed Pronet Hosted Exchange & Spam Filter Order Form and Purchase Agreement with Pronet. Increases in service quantities may be made at any time as needed.
2.3 Adjustment of Fees
It is understood that the fees for the Hosted Exchange Service are based on the number of Mailboxes at Your Domain(s) that receive Exchange Online, where a minimum number of Mailboxes may apply as outlined herein, and that the number of such Mailboxes may change over the course of this Agreement. You shall be responsible for controlling Your Mailbox for Your end-users that will receive Exchange Online under this Agreement.
Additionally, monthly service fees for the Hosted Exchange Service are calculated based on the number of Mailboxes at Your Domain(s) using Exchange Online, subject to allocated storage limits as defined herein. Should Your usage exceed the total archive storage allocated to one or more of Your Domains, Pronet shall have the right to adjust the Fees for the Hosted Exchange Service by increasing the Mailbox count for Your Domain(s) by the minimum number of additional Mailboxes necessary to increase Your allocated storage capacity to meet Your actual archive usage.
It is understood that in certain circumstances Pronet may rely on You to provide an estimate of the number of actual or expected Mailboxes to receive Exchange Online under this Agreement. You warrant that the number of Mailboxes You specify to Pronet is a reasonably accurate number, and You agree to inform Pronet of any substantial increase in the number of such Mailboxes. Pronet reserves the right to audit service usage, determine or estimate the number of Mailboxes, and to adjust the Fees to You if there is a significant (in Pronet’s sole opinion) increase in the number of Mailboxes utilizing the Exchange Online. In the event that Pronet determines that the number of Mailboxes is in substantial excess of the number specified by You, Pronet may invoice You for any underpayment of the service fees together with interest calculated in accordance with Section 2, suspend any or all of the services associated with the Hosted Exchange Service and/or Exchange Online, or terminate this Agreement immediately for breach of contract. Pronet may report the behavior to any applicable regulatory authorities and pursue all available legal remedies.
All payments to Pronet must be made in U.S. dollars by credit card or eCheck at http://pronetcorp.com or by wire transfer. The Fees exclude all applicable sales, use, withholding and other taxes, and You will be responsible for payment of all taxes (other than taxes based on Pronet’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of the Fees. You will make all payments of the Fees to Pronet free and clear of, and without reduction for, any taxes, fees or duties; any such taxes imposed on payments of the Fees to Pronet will be Your sole responsibility, and You will provide Pronet with official receipts issued by the appropriate taxing authority, or such other evidence as Pronet may reasonably request, to establish that such taxes have been paid. You will indemnify and hold Pronet harmless from any such taxes or claims relating to the payment, non-payment or underpayment of such taxes. Any portion of the Fees that is not paid when due will accrue interest at two and a half percent (2.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
3. Pronet Responsibilities
3.1 Service and Security
Pronet will provide the Hosted Exchange Service to You on a “commercially reasonable efforts” basis. Pronet will implement reasonable efforts to ensure a high level of service and reasonable security precautions to ensure protection and confidentiality of any of Your Microsoft Live IDs associated with Exchange Online and its management.
3.2 Data Privacy and Confidentiality
Pronet agrees to hold confidential all Your data in its possession exercising the same degree of care that a reasonable and careful company would exercise with similar data of its own. Pronet will limit access to Your data only to employees, contract labor, and subcontractors of Pronet, or to any affiliate or successor to the business or assets of Pronet; provided that in the event that Pronet is made aware of a potential violation of the terms of any law, any regulation, or this or any end user Agreement, Pronet may take, but is under no obligation to take, such investigative and remedial measures as each deems in its sole discretion to be appropriate, including copying and sharing data with appropriate legal authorities, providing access to data and activity information with legal authorities, removal of violating data without notice, denial or suspension of access and services, or any such other remedies or actions as may be otherwise requested by legal authorities or allegedly aggrieved parties, even in the absence of subpoena or compulsion by government authority.
4. Your Responsibilities
4.1 Client Software & License Grant
As part of the provision of the Hosted Exchange Service, You may need to install client software to access and use Exchange Online. You will comply with any and all rights and restrictions pertaining to such client software as outlined in Section 2 “License Grant” of Microsoft’s Online Subscription Agreement, published at http://www.microsoft.com/online/MOSA/MOSA-en-apac.aspx or at an alternative site that Microsoft identifies, and/or as described in the client software end user license agreement and/or as described in the Online Services Use Rights as described in Section 4.2.
4.2 Use Restrictions
You will comply with any and all rights and restrictions granted by Microsoft to licensees of Exchange Online and Microsoft’s Online Services Use Rights for Exchange Online, published at http://www.microsoft.com/licensing/onlineuserights or at an alternate site that Microsoft identifies. Additionally, You agree not to: (a) modify, adapt, alter, translate, or create derivative works from the client software; (b) merge the client software with other software; (c) sublicense, lease, rent, loan, or otherwise transfer Exchange Online or client software to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the client software; (e) use Exchange Online or client software to process data or provide any service bureau activity for any third party; or (f) otherwise use Exchange Online, or use or copy the client software, except as expressly allowed under Section 4 and its provisions.
4.3 MX Records & Administration
To initiate the Hosted Exchange Service and Exchange Online, You will adjust or allow Pronet to assist in the adjustment of Your DNS (MX record) and/or Your mail server settings to allow emails for Your Domain(s) to pass through and utilize Exchange Online. If You do not directly control Your DNS and/or email server, You will be responsible for directing the person or entity that controls Your DNS and/or email server to make such changes or put Pronet in touch with such persons or entity to make such changes. You will provide Pronet with all required information and technical data necessary for the provisioning of the Hosted Exchange Service and Exchange Online.
In the event of the termination of the Hosted Exchange Service, either by You or by Pronet, You shall be responsible for adjusting Your DNS (MX record) and/or email server settings such that emails for Your Domain(s) no longer pass through or utilize Exchange Online. You acknowledges that Your failure to do so in a timely fashion may cause email to be lost, and Pronet assumes no legal responsibility for any loss or damage following termination of the Hosted Exchange Service or Exchange Online (however caused) as a result of You or Your agents not adjusting Your DNS (MX records) and/or email services prior to such termination.
It is understood that Your access to any messages archived via Exchange Online are subject to Your renewal of the Hosted Exchange Service. Should You wish to retain such archived messages subsequent to the termination of the Hosted Exchange Service, You shall be responsible for the export of such archived data, at or prior to the termination of the Hosted Exchange Service.
You are and will remain solely responsible for complying with all laws, rules and regulations regarding the management and administration of Your electronic messaging system. You acknowledge and agree that Pronet’s responsibilities and liability do not extend to the internal management or administration of Your electronic messaging system or messages and that Pronet and/or Microsoft is merely a data processor. You are responsible for procuring, installing and operating the computer systems, operating systems, programs and Internet connections or services necessary to access and use the Exchange Online as provided hereunder, and for establishing adequate operational back-up provisions in the event of a defect or malfunction that renders the Hosted Exchange Service or Exchange Online or the computer systems or software on which they run non–operational.
4.4 Other Responsibilities
You will arrange for and maintain Internet communication services used to connect to the Pronet website and to connect to Exchange Online. You are responsible for any communication costs associated with Your Internet communications services. You further agree that You shall not place any data on the Pronet website or Exchange Online that: (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statue, ordinance or regulation (including without limitation the laws and regulations governing export control, unfair competition, antidiscrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, child pornographic or indecent; or (e) contains any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. You shall defend, indemnify and hold Pronet harmless against any third party claim, action, suit or proceeding alleging any breach of the covenants contained herein.
5. Service Features
Pronet will provision and manage Your account, subscription, settings and features associated with the Hosted Exchange Service and Exchange Online.
Exchange Online will accommodate individual mailboxes for Your end-users with corresponding email addresses such as email@example.com. Storage for individual mailboxes is limited to 25 gigabytes (GB). At 100% of mailbox storage capacity, Your end-users may not be able to send or receive e-mail until the storage size utilized falls below the said limitation. Email messages, including attachments, both sent and received, will be limited to 30 megabytes (MB) in size per message. Pronet is not liable for any loss or service unavailability due to end-users reaching their maximum storage capacity or in the event an email message surpasses its size limitation. Pronet reserves the right to disable and/or block access to specific end-user accounts in the event Pronet determines an end-user is abusing his/her rights or using the Hosted Exchange Services or Exchange Online in an unacceptable manner. If You wish to add, remove, and/or modify Your mailboxes, You will need to request additional support from Pronet for assistance. Pronet may adjust Your fees based on the number of mailboxes assigned to Your account.
5.2 Email Aliases
Exchange Online allows the use of aliases to be used as alternative e-mail addresses assigned to an existing mailbox as described above. If You wish to use, add, remove, and/or modify email aliases, You will need to request additional support from Pronet for assistance. Pronet reserves the right to charge an additional fee for the number of aliases for Your account. Pronet also reserves the right to restrict the number of aliases for Your account.
5.3 Resource Mailboxes
Exchange Online allows resource mailboxes to be used for conference room scheduling. Resource mailboxes are treated as standard individual mailboxes and have an assigned email alias. Resource mailboxes receive and respond to scheduling requests only. Additionally, the Resource Booking Attendant (RBA) in Exchange Online can automate the scheduling of conference rooms and other resources. A resource mailbox can be configured to use the RBA to send Accept, Decline, or Acknowledge replies to meeting organizers. If You wish to use, add, remove, and/or modify resource mailboxes, You will need to request additional support from Pronet for assistance. Pronet reserves the right to charge an additional fee for the number of resource mailboxes for Your account. Pronet also reserves the right to restrict the number of resource mailboxes for Your account.
5.4 Distribution Lists
Exchange Online allows the use of distribution lists to be used to send messages to groups of people. Distribution lists are a collection of users, contacts, and other distribution lists that are available to Your end-users. If You wish to use, add, remove, and/or modify distribution lists, You will need to request additional support from Pronet for assistance. Pronet reserves the right to charge an additional fee for the number of distribution lists for Your account. Pronet also reserves the right to restrict the number of distribution lists for Your account.
5.5 Sign In Application
The Microsoft Online Services Sign In application is installed on Your end-user computers to provide a single sign-in point for Exchange Online. You may deploy the Sign In application to Your end-user computers, or instruct users to install it themselves from the Pronet Hosted Exchange and Spam Filter Instructions page at http://pronetcorp.com/services_hosted_exchange_setup.aspx. The Sign In application configures desktop applications on Your end-user computers so that they work properly with Exchange Online. End-users can change their Exchange Online password in the Sign In application, and if their password expires, the Sign In application alerts them and offers the means to update it.
5.6 Client Access
Your end-users can access Exchange Online from desktop and laptop computers using a compatible version of Microsoft Office Outlook, from a compatible web browser using Office Outlook Web Access, and from supported mobile devices. Such compatibility is solely determined by Pronet. It is Your responsibility to procure, deploy, manage, and support all end-users desktops, laptops, client application software, compatible web browsers, mobile client software and compatible mobile devices that access Exchange Online. It is Your responsibility to manage relationships with Your ISPs and wireless carriers, and Pronet does not provide end-user device support unless otherwise stated. Additionally, it is Your responsibility to make sure all client software installed by You and/or Your end-users used in association with the Hosted Exchange Service and Exchange Online is fully licensed, and You are fully responsible for maintaining licensing compliance according to the client software’s licensing and usage terms.
5.7 Access Security
All data that travels between Exchange Online and Your end-users is encrypted by default using SSL, Remote Procedure Call (RPC), or Transport Layer Security (TLS) encryption. SSL is used for client access traffic (OWA, Exchange ActiveSync, and Exchange Web Services). RPC-over-HTTP is used for Office Outlook connections. TLS is used for Exchange Server SMTP traffic. Encryption protocols are designed to prevent spoofing and help provide confidentiality for messages in transit.
5.8 Access Responsibility
It is Your responsibility to control data access policies of all devices that access Exchange Online and store data locally on the device. In the event a mobile device that accesses Exchange Online is lost, misplaced, or stolen, You can attempt to wipe the mobile device remotely by logging into Office Outlook Web Access using the mailbox account that is associated with the mobile device. Pronet is not liable for any lost, misplaced, or stolen devices that access Exchange Online, and Pronet is not liable in the event Your data, security, or information is compromised or exposed in such an event, or any continued compromise or exposure thereafter. If You need additional assistance with wiping a mobile device remotely, You will need to request additional support from Pronet for assistance. Pronet reserves the right to charge an additional fee for assisting You in Your attempt to wipe a mobile device.
5.9 Password and Lockout Policies
To help maintain security, by default Your end-users must visit the Sign In application at least once every 90 days to change their password. The Sign In application warns users 14 days before their password expires. Exchange Online also uses an account lockout policy to help protect You and Your end-users. After five (5) failed attempts to sign in with an incorrect password, end-users are locked out for 15 minutes. This condition cannot be manually reset. This policy helps guard against malicious attacks by unauthorized users. After 15 minutes, end-users can attempt again. If Your end-users cannot remember the password, You will need to request additional support from Pronet for assistance. It is Your responsibility to protect Your passwords, and Pronet will not have any liability in the event Your security is compromised.
5.10 Email Content
By this Agreement, it is understood that Pronet and/or Microsoft is merely providing You with the technical means required to, on a best effort basis, access and use Exchange Online. Pronet has no control over the contents or use of Your email, nor over Your internal or third-party email system(s), website or other Internet applications. You agree to comply with Pronet’s and Microsoft’s policies for use of the Hosted Exchange Service and Exchange Online, including a zero-tolerance restriction against the intentional and unintentional sending by You or Your agents of unsolicited commercial email or email of an illegal nature. Pronet and/or Microsoft shall have the right to immediately suspend providing any or all services contained herein, and/or to terminate this Agreement immediately without notice to You in the event of a violation of these policies. You also agree to comply with any and all applicable local, state, federal, or international laws and/or regulations, including those in Texas and Washington and those in the local jurisdiction from which You are accessing the Hosted Exchange Service and Exchange Online. Such compliance may include, but is not limited to, laws regarding unsolicited commercial email, copyright, intellectual property, obscenity, libel, export and data privacy. Pronet and Microsoft assume no responsibility for any claims that may arise directly or indirectly from the content of email addressed from, addressed to, or received by You, and You agree to indemnify and hold Pronet and Microsoft harmless from any and all claims, losses or liabilities arising from such content, whether by You, any of Your employees or agents, or any third parties. The above shall apply to any email content addressed from, addressed to, or received by Your Internet Domain(s) covered by the Hosted Exchange Service and Exchange Online, as well as to any other Internet domain(s) owned, secured, or controlled in whole or in part by You.
6. Authorized Account Changes and Data Recovery
6.1 Authorized Contact
The contact listed in Your executed Pronet Hosted Exchange & Spam Filter Order Form and Purchase Agreement with Pronet (“Authorized Contact”) may request account changes to Your Hosted Exchange Service and Exchange Online. The Authorized Contact will act as the main point of contact with Pronet with regard to the Hosted Exchange Service and Exchange Online and will provide Pronet all necessary information for the activation and continued provisioning of the Hosted Exchange Service and Exchange Online. The Authorized Contact will act as Your sole contact with Pronet for purposes of any applicable system training and/or technical support. While Pronet will use reasonable efforts to provide relevant documentation and information, it is understood that certain features of services provided by this Agreement may require minor configuration changes within Your specific email server software or email client software, and the Authorized Contact will be responsible for providing any necessary support to Your end-users. For security purposes, Pronet, at its sole discretion, may choose to deny any requests made by anyone else other than the Authorized Contact.
6.2 Deletion Requests
If You wish to delete mailbox accounts, email aliases, resource mailboxes, distribution lists or mailbox data, including, but not limited to, email, calendar, contact, and tasks information, or any other data in connection with the Hosted Exchange Service or Exchange Online, You will need to request additional support from Pronet for assistance. Pronet reserves the right to charge an additional fee for Your deletion requests. Additionally, Pronet is not responsible for any lost or unrecoverable data or communications that may occur as a result of Your deletion requests.
6.3 Deleted Item Recovery
If You wish to restore items that have been deleted from any mailbox, You will need to request additional support from Pronet for assistance. Additionally, items that have been deleted for 14 or more days are unrecoverable. Because of the aforementioned limitation, You must notify Pronet within a reasonable amount of time before the time limitation has been exceeded in order to assist You with Your restoration request. Pronet reserves the right to charge an additional fee for Your restoration requests. Additionally, Pronet is not responsible for any lost or unrecoverable data or communications that may occur as a result of Your restoration requests, and Pronet is under no time obligations to meet the 14 day item restoration limitation as mentioned above.
6.4 Deleted Mailbox Recovery
When an end-user is deleted from Exchange Online, the end-user’s mailbox is also deleted. If You later determine that You need to recover mailbox data contained in the deleted mailbox, Pronet must submit a support request to Exchange Online to recover the mailbox. If You wish to restore an end-user’s mailbox that has been deleted, You will need to request additional support from Pronet for assistance. Additionally, mailboxes that have been deleted for 30 or more days are unrecoverable. Because of the aforementioned limitation and because of the additional and necessary support request that must be submitted to Exchange Online by Pronet, You must notify Pronet within a reasonable amount of time before the time limitation has been exceeded in order to assist You with Your restoration request. Pronet reserves the right to charge an additional fee for Your restoration requests. Additionally, Pronet is not responsible for any lost or unrecoverable data or communications that may occur as a result of Your restoration requests, and Pronet is under no time obligations to meet the 30 day mailbox restoration limitation as mentioned above.
If You purchased support with the Service, then Pronet will provide support to You during normal business hours, which are defined as 8:00 a.m. – 5:00 p.m., Monday through Friday, United States central time, excluding federal holidays in the United States and observed Pronet holidays. You may request support both during and outside normal business hours by opening a support ticket via the Pronet website at http://pronetcorp.com/support or by calling a Pronet authorized support agent.
You agree to and accept Pronet’s incident response time expectations, Your remedies, and the method for obtaining SLA credits as outlined in the Pronet Service Level Agreement (SLA) and listed on the Pronet website at http://pronetcorp.com/terms.
You acknowledge that in the event You experience trouble with Exchange Online, You are responsible for on-site cooperative testing with Pronet support to assist in the diagnosis of the trouble. Pronet is not responsible for end-user support of issues not directly related to the Hosted Exchange Service or to Exchange Online. This includes (but is not limited to) Your operating systems, Your equipment, or Your application support. Pronet reserves the right to bill You at current hourly rates for configuration requests that are not required to provide the Hosted Exchange Service as outlined herein. Additionally, Pronet is not liable for any late, delayed, or non-delivered or non-received e-mails, is not liable for any synchronization errors, and is not liable for any disruption in any of the services associated with the Hosted Exchange Service or Exchange Online no matter what the root cause.
8. Term and Termination
This Agreement shall have the initial term as set forth in Your executed Pronet Hosted Exchange & Spam Filter Order Form and Purchase Agreement with Pronet. The term shall automatically renew on a yearly basis at the end of the initial term and thereafter, unless You notify Pronet, in writing at least ninety (90) days prior to the end of the then current term of Your intention to not to renew this Agreement. Pronet or any Pronet certified reseller reserve the right to modify the price schedule for the Hosted Exchange Service at any time, and pricing for any renewal term shall be at the price as set forth on the most current price schedule in effect upon the renewal date.
A party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure the breach within ninety (90) days after receiving written notice thereof. Pronet may also terminate this Agreement, effective immediately upon written notice to You, if: (a) You breach any provision in Section 4.2; or (b) You fail to pay any portion of the Fees when due within ten (10) days after receiving written notice from Pronet that payment is past due. You may also terminate this Agreement at any time during the term by providing ninety (90) days advance notice to Pronet, in writing, of Your intention to terminate this Agreement, and by immediately paying all amounts due under this Agreement for the remainder of the term. Failure to immediately pay all amounts due under this Agreement for the remainder of the term will forfeit Your written intention to terminate.
8.3 Effects of Termination
Upon termination or expiration of this Agreement for any reason, any amounts owed to Pronet under this Agreement before such termination or expiration will be immediately due and payable, all Your rights granted in this Agreement will immediately cease to exist, and You must promptly discontinue all use of the Hosted Exchange Service and Exchange Online, erase all copies of any client software associated with the Hosted Exchange Service and Exchange Online from Your systems and certify in writing to Pronet that You have fully complied with these requirements. Additionally, upon termination or expiration of this Agreement, all associated data with the Hosted Exchange Service and Exchange Online will be permanently deleted, without any obligatory notice by Pronet to You.
8.4 IP Addresses
During the term of this Agreement, You agree that Pronet may, as it determines necessary, make modifications to DNS records, zones, and Internet Protocol (“IP”) Addresses on any DNS servers managed or operated by Pronet in connection with the Services. Additionally, upon termination or expiration of this Agreement, Pronet may permanently delete any DNS records, zones, and IP Addresses on any DNS servers managed or operated by Pronet in connection with the Services, without any obligatory notice by Pronet to You. Upon expiration or termination of the Agreement, You must discontinue use of the Services and relinquish use of any and all IP addresses and/or server, host, or CNAME names or records assigned to You by Pronet in connection with Services, including pointing the DNS name servers for Your domain name(s) away from Pronet’s DNS name servers, and You must certify in writing to Pronet that You have fully complied with these requirements.
8.5 Disposition upon Termination
You acknowledge that upon the expiration or termination of this Agreement, any attempt to access the servers of the Hosted Exchange Service or Exchange Online in connection with any of Your accounts for whom You have not paid all fees, or for whom Your rights have expired or terminated, is prohibited and unauthorized.
8.6 Failure to Comply & Unauthorized Activity
Pronet may pursue criminal investigation and/or legal action, including the pursuit of punitive damages, against You if it is determined that, but not limited to: (a) prohibited or unauthorized activity is attempted by You as described herein; (b) unlicensed use of the Software or Services is attempted by You as described herein; (c) restricted use is violated by You as described in Section 4.2; or (d) You fail to comply with Your written notification obligations in Sections 8.3 and 8.4 immediately, as determined by Pronet.
Sections 8.3 (“Effects of Termination”), 8.4 (“IP Addresses”), 8.5 (“Disposition upon Termination”), 8.6 (“Failure to Comply & Unauthorized Activity”), 8.7 (“Survival”), 9 (“Warranty and Disclaimer”), 4.2 (“Use Restrictions”), 10 (“Liability Limitation”), and 11 (“General”) will survive termination or expiration of this Agreement for any reason.
9. Warranty and Disclaimer
9.1 Services Warranty
Pronet’s role and exclusive warranty is that the Hosted Exchange Service provided under this Agreement shall be performed in conformity with the standard practices in the industry. Notwithstanding the foregoing, the communication and security mechanisms implemented by Pronet and or Microsoft Corporation have inherent limitations and You are solely responsible for determining that this mechanism sufficiently meets Your communication, security and operational needs.
THE EXPRESS WARRANTIES IN THIS SECTION 9 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE HOSTED EXCHANGE SERVICE, EXCHANGE ONLINE, AND CLIENT SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. YOU ACKNOWLEDGE THAT YOU HAVE RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION 9.
10. Liability Limitation
IN NO EVENT WILL PRONET BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT. PRONET ALSO SHALL NOT HAVE ANY LIABILITY FOR ANY PROGRAMS OR DATA USED WITH THE HOSTED EXCHANGE SERVICE, EXCHANGE ONLINE, OR ANY CLIENT SOFTWARE ASSOCIATED WITH THE SERVICES, INCLUDING WITHOUT LIMITATION ANY LOSS OF PROGRAMS OR DATA OF ANY KIND OR THE COSTS OF RECOVERING SUCH DATA. PRONET’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE HOSTED EXCHANGE SERVICE, EXCHANGE ONLINE, AND CLIENT SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF TOTAL FEES PAID TO PRONET BY YOU DURING THE PERIOD OF ONE (1) MONTH IMMEDIATELY PRECEDING THE DATE, AS DETERMINED BY PRONET, ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. YOU ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT PRONET WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.
11.1 Proprietary Rights
The Hosted Exchange Service and all worldwide Intellectual Property Rights therein, are the exclusive property of Pronet. All rights in and to the Hosted Exchange Service not expressly granted to You in this Agreement are reserved by Pronet. You will not remove, alter, or obscure any proprietary notices (including copyright notices) of Pronet in associated with the Hosted Exchange Service.
You may not assign or transfer, by operation of law or otherwise, any of Your rights under this Agreement (including Your licenses with respect to the Hosted Exchange Service and Exchange Online) to any third party without Pronet’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.
All notices, consents and approvals under this Agreement must be delivered in writing by courier, by electronic facsimile (fax), by certified or registered mail, (postage prepaid and return receipt requested), or by email (read receipt confirmed and documented or with email response from recipient that indicates acknowledgement of receipt) to the other party at the address(es) set forth beneath such party’s signature or as indicated in Your executed Pronet Hosted Exchange & Spam Filter Order Form and Purchase Agreement with Pronet, and will be effective upon receipt or, in the case of mail, three (3) business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
11.4 Governing Law and Venue
This Agreement will be governed by the laws of the State of Texas, without reference to its conflicts of law principles. Any action or proceeding arising out of a breach by You of Section 4.2 may be brought in a federal court in the Southern District of Texas, USA or in state court in Harris County, Texas, USA and each party irrevocably submits to the jurisdiction and venue of those courts.
11.5 Dispute Resolution
Subject to Section 11.4, any action or proceeding arising from or relating to this Agreement shall be finally settled by arbitration before American Arbitration Associate (the “AAA”) pursuant to its Commercial Arbitration Rules (the “Rules”). The arbitration shall be before one (1) arbitrator appointed by the AAA pursuant to the Rules. The parties agree that arbitration must be initiated within three (3) months after the claimed breach occurred and that the failure to initiate the arbitration within the three-month period constitutes an absolute bar to the institution of any new proceedings. The aggrieved party may initiate arbitration by sending written notice of an intention to arbitrate by registered or certified mail, return receipt requested, to all parties and to AAA. The notice must contain a description of the dispute, the amount involved, and the remedy sought. If and when a demand for arbitration is made by either party, the parties agree to execute a submission agreement, in a form provided by AAA, setting forth the rights of the parties if the case is arbitrated and the rules and procedures to be followed at the arbitration hearing. Any arbitration instituted under this subsection shall take place in Harris County, Texas, USA.
You agree to defend, indemnify and hold Pronet, its affiliates, subsidiaries, directors, officers, employees, agents, partners, contractors, and licensors (the “Pronet Indemnitees”) harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) any data You store, submit, post, transmit, or otherwise make available through the Service; (b) Your use of the Service; (c) any violation by You of this Agreement; (d) any action taken by Pronet as part of its investigation of a suspected violation of this Agreement or as a result of its finding or decision that a violation of this Agreement has occurred; (e) Your violation of any rights of another; (f) Your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the Pronet Acceptable Usage Policy, or violation of Section 11.11 (Export Control) of this Agreement; or (g) any usage of Your account, whether or not such usage is expressly authorized by You.
This means that You will pay the cost of defending the claim (including reasonable attorney fees) and any damages, awards, fines, or other amount that are imposed on the Pronet Indemnitees as a result of the claim. This also means that You cannot sue the Pronet Indemnitees as a result of Pronet’s decision to remove or refuse to process any information or data, to warn You, to suspend or terminate Your access to the Service, or to take any other action during the investigation of a suspected violation or as a result of Pronet’s conclusion that a violation of this Agreement has occurred. This waiver and indemnity provision applies to all violations described in or contemplated by this Agreement.
You acknowledge that You are responsible for all use of the Service involving Your account, that this Agreement applies to any and all usage of Your account, and that Your obligations under this subsection include claims arising out of the acts or omissions of Your employees, any other person to whom You have given access to the Service, and any person who gains access to the Service 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 Service, the grounds for indemnification stated above also include any claim brought by Your customers or end users arising out of Your resale of the Service.
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 subsection as we incur them.
The parties’ rights and remedies under this Agreement are cumulative. You acknowledge that the Hosted Exchange Service contains valuable trade secrets and proprietary information of Pronet, that any actual or threatened breach of Section 4.2 will constitute immediate, irreparable harm to Pronet for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach and Pronet is entitled to such relief without the need to post a bond.
All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver or any other provision or of such provision on any other occasion.
If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, You agree that Section 10 will remain in effect notwithstanding the unenforceability of any provision in Section 9.
11.10 Force Majeure
Pronet will not be responsible for any delays or failures caused by events, occurrences, or causes beyond the control of Pronet, as determined by Pronet, including without limitation, acts of God, natural disasters, fires, explosions, terrorist attacks, acts of utility providers, or any other possible hindrance which impairs Pronet’s provision of the Hosted Exchange Service or Microsoft’s provision of Exchange Online. Additionally, Pronet will not incur any liability on the account of any loss or damage resulting from any delay or failure to perform all or any part of the Agreement if such delay or failure is caused by such aforementioned events, occurrences, or causes, or as otherwise determined by Pronet. You acknowledge that Your inability to meet financial obligations from any claim of force majeure will be not be accepted, and all fees payable to Pronet will remain outstanding until paid by You to Pronet in full.
11.11 Export Control
Use of the Service and Software, including transferring, posting, or uploading data, software or other content via the Service, may be subject to the export and import laws of the United States and other countries. You agree to comply with all applicable export and import laws and regulations. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to any entity on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Software and Service, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use the Software or Service for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You further agree not to use the Service or Software to upload or store any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
11.12 No High Risk Use
You may not use the Service in any situation where failure or fault of the Service 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 Service 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.
11.13 Electronic Contracting
Your use of the Service includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain Your electronic records, You may be required to have certain hardware and software, which are Your sole responsibility.
The section headings used herein are for convenience of reference only and do not form a part of this Agreement, and no construction or inference shall be derived therefrom.
This Agreement may be amended by Pronet, and such amendments shall be immediately in effect upon Pronet’s publication of the new Agreement on its website at http://pronetcorp.com/terms/hostedexchange (“the Online Agreement”). Any version of the Online Agreement shall assume that the terms “You” and “Your” as contained herein shall carry the same definitions as “Subscriber” and “Subscriber’s”, respectively, as defined in Your executed Pronet Hosted Exchange & Spam Filter Order Form and Purchase Agreement with Pronet. Additionally, the Online Agreement may not enlist specifics as outlined in Your executed Pronet Hosted Exchange & Spam Filter Order Form and Purchase Agreement with Pronet; however, the Online Agreement version shall carry the same effect as having the attached and/or corresponding Site License Order Form and Purchase Agreement incorporated. It is Your responsibility to regularly review the Online Agreement, and Your continued use of the Hosted Exchange Service, Exchange Online, and/or client software described herein indicates that You agree to all amendments and are fully bound to the Agreement, including any and all amendments therein.
11.16 Entire Agreement
This Agreement, and any exhibits attached to Your executed Pronet Hosted Exchange & Spam Filter Order Form and Purchase Agreement with Pronet, constitutes the final, complete and exclusive statement of the terms of the agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. The terms on any purchase order or similar document submitted by You to Pronet will have no effect.