This HulloMail Enterprise Agreement (“Agreement") governs use of the HulloMail Enterprise service (“Service”) by the entity agreeing to these terms (“Customer") as one party to this Agreement with HulloMail Limited, the other party, a UK company headquartered in London, UK.
You are required to accept this Agreement on behalf of the Customer as a condition to creating a Service Administrator Account. The Agreement is effective as of the date HulloMail makes the Service Administrator Account available to the Customer (the "Effective Date"). By accepting this Agreement, you confirm that you have reviewed the Agreement on behalf of Customer and you are warranting to HulloMail that you are authorised to accept and make legally binding this Agreement on behalf of Customer. If you do not have the legal authority to bind such Customer, please do not check the box signifying that you accept the terms of this Agreement.
1. Use of HulloMail™ Enterprise Service
After successfully completing the account creation process and confirming acceptance of this Agreement, HulloMail will enable Customer to access a Service Administrator Account ("Administrator Account"), which will include a console ("Admin Console") that will permit Customer to perform a number of administrative functions relating to Customer's Service Account, end users (each, an "End User") including, but not limited to, granting access and suspending or terminating End User access to the Service.
2. Customer's Obligations
Customer is responsible for (a) payment of all fees relating to Customer’s Service Account (“Fees”); (b)administering all End Users' access to the Service through the Admin Console; (c) maintaining the confidentiality of the password of each Administrator Account; (d) maintaining accurate and current account and contact information for each Administrator Account; and (e) ensuring that any and all use of each Administrator Account complies with this Agreement and applicable laws. CUSTOMER ACKNOWLEDGES THAT IF NO ACCOUNT ADMINISTRATOR IS ABLE OR WILLING TO FULFILL SUCH FUNCTION, AND/OR CUSTOMER OTHERWISE FAILS TO MAINTAIN CONTROL OF THE ADMINISTRATOR ACCOUNT, CUSTOMER MAY BE UNABLE TO ACCESS OR CONTROL THE HULLOMAIL ENTERPRISE ACCOUNT; IN SUCH EVENT, CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR ALL RESULTING LOSSES, COSTS AND EXPENSES. (See “Administrator Account Recovery” below for additional information.)
Customer will prevent unauthorised use of its Service Account and immediately terminate any unauthorised use of which it becomes aware. Customer will promptly notify HulloMail of any unauthorised use of or access to the HulloMail Service of which it becomes aware.
3. Administrator Account Recovery
If Customer desires to establish a specific authorisation process independent of the Administrator Accounts, such as written direction from a corporate officer or other designated representative of Customer, Customer may contact HulloMail Customer Support to request agreement on such process (an “Approved Account Recovery Process”). HulloMail reserves the right, in its sole discretion, to accept or reject such proposal. If Customer and HulloMail have agreed upon an Approved Account Recovery Process, Customer may at any time or from time to time, request assistance using such Approved Account Recovery Process.
If Customer loses access to all Administrator Accounts and has not established an Approved Account Recovery Process, Customer should contact HulloMail’s Support Team and request assistance, as there may be measures available to Customer to recover access. If Customer is unsuccessful in obtaining access to an Administrator Account with assistance of HulloMail’s Support Team, HulloMail reserves the right to contact via email some or all End Users and any billing email listed in the Admin Console of the Enterprise Account (“Billing Contact”) to request one or more of them to serve as an Administrator and receive credentials to enable access to an Administrator Account. The process and means by which an End User or other designated contact is selected and provided such credentials is subject to HulloMail’s discretion.
If no person is provided credentials for an Administrator Account through such process (a “Loss of Administration”), then HulloMail may, in its sole discretion, determine whether an individual requesting access to an Administrator Account may be provided the credentials necessary to do so on behalf of Customer. In such event, an individual may attempt to demonstrate to HulloMail authorisation to act on behalf of Customer in regaining access to an Administrator Account by providing proof satisfactory to HulloMail. Customer acknowledges and agrees that, in the event of a Loss of Administration, HulloMail is empowered and authorised by this Agreement to use its discretion in determining whether to provide Administrator Account credentials to an individual offering proof of authority to act on behalf of Customer, and Customer hereby waives any and all claims against HulloMail as a result of, or in any way relating to, such actions.
Customer will not, and will ensure that End Users or third parties do not: (a) offer for sale or lease, sell, resell or lease access to the HulloMail Service through the Service Account; (b) attempt to reverse engineer the HulloMail Service or any software or other component used therein; (c) use the Service in a manner or under circumstances where use or failure of the HulloMail Enterprise Service could lead to death, personal injury or environmental damage; or (d) use the HulloMail Enterprise Service in a manner that would violate applicable laws protecting an individual's privacy rights, health or financial data.
5. Third Party Requests
Customer acknowledges and agrees that, as between the parties, it is responsible for responding to a request from a third party for records relating to Customer's or an End User's use of, or Content contained within, the Service (a "Third Party Request"). If HulloMail receives a Third Party Request (including but not limited to criminal or civil subpoenas or other legal process requesting Customer or End User data), HulloMail will, to the extent allowed by the law and by the terms of the Third Party Request, direct the Third Party to Customer to pursue the Third Party Request. HulloMail retains the right to respond to Third Party requests for Customer data where HulloMail determines, in its sole discretion, that it is required by law to comply with such a Third Party request.
Customer will be required to select its method of payment when Customer sets up its Service Account. Administrators and Billing Contacts of Service accounts may change payment information for the Service Accounts by contacting HulloMail Customer Support. Billing Contacts will need to contact Customer Support and demonstrate to HulloMail’s satisfaction control of the payment method last used for Customer’s Service Account to make any changes.
All payments under this Agreement are subject to the following “Commercial Terms”:
6.1. Payment of Fees; Taxes
When Customer elects to purchase the Service from HulloMail and enters a form of payment, the Customer agrees that: (i) it will fulfill its obligation to pay for the Service by the date on which payment is due; (ii) any payment information provided is true and accurate; (iii) it is authorised to use the payment method provided; (iv) HulloMail has the permission to retain the payment information and method, including all submitted debit and credit card information, submitted by the Customer and the Customers issuing bank or the applicable payment network; and (v) HulloMail is authorised to charge you for the Service using the established payment method and the information the Customer provided that is stored in its account as of the applicable date for payment. The Customer’s assurances of payment and HulloMail rights to collect payment include any obligation the Customer may have to pay any taxes or delivery charges described as being applicable to the Product the Customer is buying. In addition, the Customer agrees that it will be responsible for any credit card chargeback fees as well as any reasonable collection costs HulloMail incurs as a result of the Customer failure to pay on a timely basis.
The invoice provided to the Customer reflecting its purchase will additionally include VAT (if applicable).
Our prices for the Service do not include any of the third-party fees you incur in connection with using the Service including, without limitation, fees charged by your Internet access provider, any wireless carrier charges for cellular or data services and any other third party applications or services with which you may use the Service; you are responsible for selecting and managing these other services, and paying the fees for such services.
6.2. Changes in Fees
HulloMail may change the price of the Service from time to time, and add new fees and charges for certain features or to reflect a change in business or legal rules, but HulloMail will send advance notice of changes in recurring subscription fees by email to the Service Administrator. Any increase in charges for the Service would not apply until the expiration of the Customer then current billing cycle, unless otherwise specifically provided in HulloMail’s notice to the Customer, and would become effective no sooner than the next time the Customer would be charged for the Service. If the Customer does not agree to pay the new price or other applicable charges, the Customer may elect not to renew the Service subscription before the price change goes into effect, which cancellation would be effective at the expiration of your then current billing cycle. See “Cancellation” below for information on how to cancel a Paid Service subscription.
The purchase for the Service subscription renews automatically monthly or annually. The customer agrees that we may process the payment method on each monthly, annual or other renewal term (based on the applicable billing cycle), on or near the calendar day corresponding to the commencement of the Service subscription, as applicable. See “Cancellation” below for information on how to cancel the Service subscription. In addition, the Customer agrees that HulloMail has permission to retain and/or share with financial institutions and payment processing firms (including any institutions or firms HulloMail retains in the future) information regarding the Customer purchase and its submitted payment information in order to process the purchase, and to use the email address submitted by the Customer to provide notices and disclosures relating to renewals and recurring charges. If the Service subscription began on a day not contained in a subsequent month (e.g., the service began on January 30, and there is no February 30), HulloMail will process the payment on or near the last day of such month. (This is what HulloMail means by paying on an autorenewal basis.) See below for information describing what the Customer must do to change its Accepted Payment Method.
6.4. Paying by Invoice
HulloMail may, at its sole discretion, agree to permit the Customer to pay for the Service pursuant to invoices issued by HulloMail. HulloMail will issue the invoice on or shortly after the date on which the Service is purchased (and on any monthly, annual or other renewal term as described under “Autorenewal,” above), and the charges are payable upon receipt of the invoice. All payments of invoiced amounts must be made in the currency specified on the invoice by check, wire or other electronic transfer to a bank and account number designated by HulloMail. Any invoice that remains unpaid thirty (30) days after the invoice date is considered delinquent. Any wire transfer fees or other similar fees incurred on account of the payment method selected by the Customer is its responsibility and may not be deducted from the amount due to HulloMail.
Customer is responsible for any taxes, including, without limitation, sales, use, excise, added value, withholding and similar taxes, as well as all customs, duties or governmental impositions, excluding only taxes on HulloMail's net income (collectively, "Taxes"), and Customer will pay HulloMail all Fees due hereunder without any reduction for Taxes. If HulloMail is obligated to collect or pay Taxes, HulloMail will invoice Customer for the Taxes unless Customer provides HulloMail with a valid tax exemption certificate, VAT number issued by the appropriate taxing authority and/or other documentation providing evidence that no tax should be charged. If Customer is required by law to withhold any Taxes from its payments to HulloMail, Customer must provide HulloMail with an official tax receipt or other appropriate documentation to support such payments.
8. Support and Maintenance
HulloMail will provide email support directly to the Administrator. Customer will, at its own expense, be responsible for providing support to its End Users regarding issues that are particular to their End Users' (e.g., activating and suspending accounts). Customer will use commercially reasonable efforts to resolve any such support issues before escalating them to HulloMail. If Customer cannot resolve a support issue as set forth above, Customer's Administrator may escalate the issue to HulloMail.
9. Data Security
HulloMail has implemented certain technical and organisational measures designed to prevent accidental loss of and unauthorised access to and use of Content stored in the Service. However, Hullomail does not guarantee that unauthorised third parties will be unable to obtain access to the Service, and Customer acknowledges that all Content stored by Customer and its End Users in the Service is done so at Customer's and its End Users' own risk. In the event HulloMail becomes aware that a third party has accessed without authorisation Customer's Service account or has obtained without authorisation the credentials of the Customer’s Service account Administrator, HulloMail shall provide prompt notice to the Customer’s Administrator of such unauthorised access.
HulloMail may, in its sole discretion, allow Customer to upload its logo or other trademarks (together, "Customer Trademarks") for display in the version of Service accessed by Customer's End Users, either in conjunction with HulloMail’s trademarks or as a Customer-branded service. Accordingly, Customer hereby grants HulloMail a non-exclusive license to display, perform and distribute the Customer Trademarks and to modify (for technical purposes, e.g., making sure trademarks are viewable on smart phones as well as computers) such trademarks solely in connection with making HulloMail Enterprise available to Customer's End Users.
13. Reservation of Rights
HulloMail will only be allowed to reference Customer on HulloMail’s website and in marketing materials if HulloMail obtains Customer's written permission and provided that such reference shall not imply any affiliation, sponsorship or endorsement.
15. Warranty to Contract
Each party represents and warrants to the other that it has the requisite power and authority under its organizational charter and governing agreements (if any) to enter into this Agreement and perform in accordance with the terms herein. Customer further represents and warrants that the individual who completes the HulloMail Enterprise registration process and accepts this agreement through the Admin Console is authorised to do so on Customer's behalf.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EXPRESS WARRANTIES SET FORTH IN SECTION 14 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. HULLOMAIL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT OF THE LAW. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EITHER PARTY HERETO, ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES IN THIS AGREEMENT.
NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, \ DOES NOT WARRANT THAT THE HULLOMAIL SOFTWARE OR HULLOMAIL ENTERPRISE SERVICE WILL MEET ALL REQUIREMENTS OF CUSTOMER OR ANY END USER, OR THAT THE OPERATION OF THE HULLOMAIL SOFTWARE OR HULLOMAIL ENTERPRISE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE HULLOMAIL SOFTWARE AND HULLOMAIL ENTERPRISE SERVICE WILL BE CORRECTED. FURTHER, HULLOMAIL IS NOT RESPONSIBLE FOR ANY DEFECT OR ERROR RESULTING FROM THE MODIFICATION, MISUSE OR DAMAGE OF ANY OF THE HULLOMAIL SOFTWARE NOT DELIVERED BY HULLOMAIL. HULLOMAIL DOES NOT WARRANT AND SHALL HAVE NO LIABILITY WITH RESPECT TO THIRD PARTY SOFTWARE OR OTHER NON - HULLOMAIL PRODUCTS.
17. Indemnification by Customer
18. Limitation of Liability
EXCEPT WITH RESPECT TO (A) CUSTOMER'S BREACH OF SECTION 2 OR 3 AND (B) THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 16, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, PUNITIVE, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER ARISING IN CONTRACT OR IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ITS TERMINATION OR NON-RENEWAL AND (II) EACH PARTY'S AGGREGATE AND CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAYABLE BY CUSTOMER TO HULLOMAIL UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE INITIATION OF ANY CLAIM FOR DAMAGES.
This Agreement shall be effective upon the Effective Date and shall remain in effect until the end of the subscription period specified in the Admin Console (the "Subscription Period"), unless and until terminated in accordance with the provisions of Section 19.
At the end of the initial Subscription Period, the Subscription Period will automatically renew for an additional Subscription Period, except as set forth below. Customer will pay HulloMail the then-current Fees due for the Subscription Period. At any time prior to the end of the initial Subscription Period or any subsequent Subscription Period, Customer may cancel its HulloMail Enterprise subscription or reduce the number of accounts with access to HulloMail Enterprise though the Admin Console, which cancellation or reduction shall be effective as of the end of the then-current Subscription Period for the immediately following Subscription Period.
Customer may terminate this Agreement at any time by deactivating its HulloMail Enterprise Account by contacting HulloMail Support, provided that in no circumstances will Customer be entitled to any refund for Fees it has paid or any credit against Fees that are due to HulloMail as of the date of such termination. HulloMail may terminate this Agreement by providing sixty (60) days written notice to Customer and will refund the prorated portion of any prepaid Fees applicable to the period after the effective date of termination.
In addition, either party may terminate this Agreement in the event the other party commits any breach or default of the material terms of this Agreement, and fails to remedy such breach or default within thirty (30) days after written notice of such breach or default from the non-breaching or non-defaulting party. Notwithstanding the foregoing, (i) either party may terminate this Agreement immediately in the event of a material breach by the other party of its obligations under Section 10 and (ii) HulloMail may terminate this Agreement immediately in the event of a material breach by Customer of its obligations under Sections 2 or 3. If Customer terminates this Agreement for breach by HulloMail, Customer's sole and exclusive remedy and the entire liability of HulloMail for such breach will be a refund of fees paid by Customer to HulloMail under this Agreement.
If Customer: (i) becomes insolvent; (ii) voluntarily files or has filed against it a petition under applicable bankruptcy or insolvency laws which Customer fails to have discharged or terminated within thirty (30) days after filing; (iii) proposes any dissolution, composition or financial reorganisation with creditors or if a receiver, trustee, custodian or similar agent is appointed or takes possession with respect to all or substantially all assets or business of Customer; or (iv) Customer makes a general assignment for the benefit of creditors, HulloMail may immediately terminate this Agreement by giving a termination notice.
Termination of this Agreement shall, as of the effective date of such termination, terminate Customer's and its End Users' access to HulloMail Enterprise and all other rights granted to Customer hereunder; provided, however, that any termination is without prejudice to the enforcement of any undischarged obligations existing at the time of termination. The following provisions of this Agreement shall survive the termination of this Agreement: Sections 2 - 7, 9 - 13, 15 - 18, 20 and 21.
21. General Terms
21.1 Entire Agreement
Any notice required or permitted to be given hereunder shall be given in writing by personal delivery, by e-mail or by world-recognized courier delivery as follows:
If to Customer:
At the email address for the then current Administrator for the account.
If to HulloMail:
HulloMail Limited, 27 Paul Street, EC2A 4JU London UK
With a copy to enterprise@HulloMail.com with Subject: Legal Notice
The date upon which such notice is delivered shall be deemed to be the date of such notice, irrespective of the date appearing thereon. A party, through the Admin Console (if Customer) or upon written notice to Customer (if HulloMail), may change the addresses, individuals and/or titles to which notices shall be sent.
21.3 Governing Law
This Agreement shall be governed by and construed in English law and the Customer hereby submits to the exclusive jurisdiction of the English Courts.
21.4 Agreement, Successors and Assigns
The terms and conditions of this Agreement shall inure to the benefit of and be enforceable by each of the parties and their permitted successors and assigns. Except as set forth in the immediately following sentences, neither party shall assign this Agreement or any right or interest under this Agreement, nor delegate any obligation to be performed under this Agreement, without the other party's prior written consent. This Agreement shall inure to the benefit of, and be binding upon, any legal successor to all or substantially all of the business and assets of either party, where such succession occurs in connection with a merger, sale of assets, corporate restructuring or otherwise by operation of law; and HulloMail reserves the right to assign this Agreement to any HulloMail affiliate or successor. If Customer desires to request HulloMail to consent to an assignment of this Agreement, Customer shall send a formal request for consent by notice to HulloMail, and should send a message to HulloMail through the Admin Console setting forth details concerning the requested assignment. Any attempted assignment or delegation in contravention of this provision shall be void and ineffective. Customer shall ensure that it provides the then-current passwords for the Administrator Account to any successor or assignee under this Agreement as, notwithstanding any such assignment, HulloMail shall not provide any passwords to Customer's Administrator Account to any party.
21.5 No Relationship
No agency, partnership, joint venture or employment is created between the parties as a result of this Agreement. Except as specifically provided herein, neither party is authorized to create any obligation, express or implied, on behalf of the other party, nor to exercise any control over the other party's methods of operation.
21.6 Force Majeure
If either party is prevented from performing any portion of this Agreement (except the payment of money) by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services or acts of God, such defaulting party will be excused from performance for the period of the delay and for a reasonable time thereafter.
The headings in this Agreement have been inserted for convenience and shall not modify, define or limit the express provisions of this Agreement. All pronouns shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the person or persons referred to may require. The parties hereto confirm that (i) they each had the opportunity to review this Agreement with legal counsel of their own choosing and (ii) they understand the terms of, and voluntarily and knowingly enter into, this Agreement with the intent of being legally bound by the terms hereof.
21.8 Waiver and Amendment
HulloMail, in its sole discretion, may amend this Agreement at any time, and in such case, HulloMail will publish a new version of the Agreement ("Amended Agreement") on the HulloMail Enterprise website. In addition, HulloMail will provide Customer with at least 30 days advance notice by e-mail (sent to the address Customer has provided to HulloMail) of the change to the Agreement, except that if an update to the Agreement is required to satisfy applicable legal requirements, the Amended Agreement may be effective with less advance notice, as indicated in HulloMail’s communications about the Amended Agreement. Customer's continued use of HulloMail Enterprise after the effectiveness of any update will be deemed to represent Customer's consent to be bound by, and agreement with, the terms of the Amended Agreement. If the Amended Agreement includes any material adverse changes to Customer's rights or obligations and Customer does not wish to continue using HulloMail Enterprise under the terms of the Amended Agreement, Customer may terminate the Agreement by providing HulloMail written notice within thirty (30) days of being notified of the availability of the Amended Agreement. In the event of such termination, Customer may request a partial refund, and HulloMail will refund the prorated portion of any prepaid Fees applicable to the period after the effective date of termination. Otherwise, no waiver, amendment or modification of any provision of this Agreement, and no variance from or addition to the terms and conditions of this Agreement in any purchase order or other written notification, shall be effective unless in writing and agreed to by the parties hereto. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of such right, power or remedy. No waiver of any term, condition or default of this Agreement shall be construed as a waiver of any other term, condition or default. This Agreement will not be supplemented or modified by any course of dealing or usage of trade.
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