GENERAL TERMS AND CONDITIONS OF END USER
LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY: (R)egistered
E-mailŪ services, provided by RPostŪ, reduce
business risk by increasing accountability for
important electronic communications. Unlike
traditional Internet e-mail, Registered E-mailŪ
services provide detailed transmission information
to the sender, in the form of an electronic receipt,
which can be authenticated ("Service").
Be sure to carefully read and understand all of the
rights and restrictions described in this RPost
End-User License Agreement ("EULA"). You will be
asked to review and either accept or not accept the
terms of the EULA. Acceptance of this EULA also
indicates that the legal notice section at
www.rpost.com has been read and understood by the
party/parties accepting this EULA. This software
will not install on your computer unless or until
you accept the terms of this EULA. Your click of the
"yes" or "accept" button, or your use of the RPostŪ
Service / Registered E-mailŪ system is a symbol of
your signature that you accept the terms of the
EULA. For your reference, you may also receive a
copy of this EULA by contacting the RPost at
support@rpost.com.
Trademarks that have an indication "Ū" in RPostŪ
materials, literature, software, or services,
indicates that the trademark is registered in at
least one of the territories where RPost provides
service. A mark of "TM" or "SM" indicates that RPost
protects the mark under common law.
This EULA is a legal agreement between you (either
an individual or a single entity) and RPost for the
RPost software accompanying this EULA or for use of
the RPostŪ Service / Registered E-mailŪ system,
which includes the accompanying computer software,
and may include associated media, services, printed
materials and any "online" or electronic
documentation ("Software"). By installing the
Software or using the Service, you agree to be bound
by the terms of this EULA. If you do not agree to
the terms of this EULA, you may not install or use
the Software or Service.
RPost prohibits use of Registered E-mailŪ services
for unsolicited e-mail marketing. RPost reserves the
right to revoke all Service privileges from any user
that uses the Service for unsolicited e-mail
marketing or for any other unauthorized or illegal
use.
RPost is an interested party of the sender and RPost
acts as an Agent of the sender of the Registered
E-mailŪ messages. If the sender would like RPost to
turn off authentication capabilities for a
particular Registered E-mailŪ receipt, RPost will do
so and reserves the right to charge the sender a fee
for this additional Service request.
Those who choose to install or use this Service in
any way agree to comply with the following General
Terms and Conditions of this EULA.
General Terms and Conditions:
1. DEFINITIONS. Capitalized terms used in
this Agreement without definition will have the
meanings set forth below:
"Agent" means interested party of the sender.
"Customer" means a company or End-User that is
authorized to send (R)egistered E-mailŪ messages
pursuant to this Agreement.
"Digital Seal" means the technology that RPost can
apply to a Registered E-mailŪ message such that a
recipient of that e-mail can verify authorship and
validate original content.
"End-User" means any individual authorized by
Customer to send (R)egistered E-mailŪ messages
pursuant to this Agreement.
"EULA" means End-User License Agreement.
"Gateway Partner" means a company or Internet
Service Provider whose servers are equipped to
provide End-Users with access to the Service.
"Global Network" means access to the global (R)egistered
E-mailŪ infrastructure and network.
"Installation Date" means the Effective Date of this
agreement or when the Registered E-mailŪ Service was
first installed or enabled for the End User.
"National Mail Server(tm)" means the servers owned
and operated by RPost and equipped to provide the
Service.
"(R) Enabler Software" means proprietary filter
software owned by RPost to enable Client to use and
access (R)egistered E-mailŪ services. This is
sometimes referred to as "Filter" software or
"Button" software.
"(R)egistered E-mail" means the Service created and
owned by RPost and powered by RPost technology that
tracks the delivery of e-mail and provides a return
receipt to the sender of e-mail with a time/date
seal and authenticates both the contents and any
attachments of an e-mail message with hashing
algorithms and digital encryption signatures,
providing verification that a message was sent and
delivered to the recipient's mail server.
"(R)egistered E-mail Sponsors" means a government
agency or private entity that enters into an
agreement with RPost to endorse and/or offer its
brand in conjunction with (R)egistered E-mailŪ
services.
"Registered Receipt" means the tamper detectable
electronic record of delivery and content delivered
of a Registered E-mailŪ message. This is returned to
the sender and can be authenticated.
"Run" means install, use, access, display, run, or
otherwise interact with the Service or RPost
Software.
"RPost" means RPost International Limited, a
corporation organized and doing business under using
the trade name RPost, as well as any RPost
subsidiaries or affiliates. If the Customer is
within the Territory of the United States, this
agreement is explicitly between RPost US Inc., a
corporation organized and doing business under the
laws of Delaware, and the Customer; and "RPost"
means, in this case, RPost US Inc. the Delaware
company. If the Customer is within the States and
Territories of Australia, this agreement is
explicitly between RPost Australia Pty Ltd., a
corporation organized and doing business in the
whole of Australia under the Corporations Act (2001)
and is incorporated in the state of New South Wales,
and the Customer; and "RPost" means, in this case,
RPost Australia Pty Ltd. If the Customer is in any
other country or territory where there is no local
legal entity owned by RPost International Limited, "RPost"
means RPost International Limited.
"Sender" means any End-User who sends (R)egistered
E-mailŪ messages and has engaged in a relationship
with RPost and has hired RPost to be its agent to
send Registered E-mailŪ messages.
"Service" means the Service powered by RPost
technology that tracks the delivery of e-mail and
provides a Return Receipt to the sender of e-mail
with a time/date seal.
"Signature Password" means the password created by
the End User to activate the Digital Seal
capabilities.
"Software" means the accompanying computer software,
and may include associated media, printed materials
and any "online" or electronic documentation
"Territory" means (R)egistered E-mailŪ service
territory Jurisdiction.
"Unit" means one (R)egistered E-mailŪ message
recipient per Mega Byte e-mail size.
2. SERVICES AND SOFTWARE
2.1 (a) Implementation. RPost grants Customer a
limited license to use RPost (R)Enabler Software,
enabling Customer and/or End-Users to send (R)egistered
E-mailŪ messages by routing their outbound e-mail
tagged for registration through National Mail
Servers(tm) and the Global Network for (R)egistered
E-mailŪ Service. The Software and Service are
protected by copyright laws and international
copyright treaties, as well as other intellectual
property laws and treaties. The Software is
licensed, not sold. This EULA grants you the
following rights: (a) Software. You may install,
use, access, display, run, or otherwise interact
with one copy of the Software, on a single computer,
workstation, terminal, handheld PC, pager, "smart
phone," or other digital electronic device
("Computer"). The primary user of the Computer on
which the Software is installed may make a second
copy for his or her exclusive use on a portable
computer as long as the Service is used under the
same account information.
(b) Storage or Network Use. You may also store or
install a copy of the Software on a storage device,
such as a network server, used only to Run the
Software on your other Computers over an internal
network; however, you must acquire and dedicate a
license for each separate Computer on which the
Software is Run from the storage device. A license
for the Software may not be shared or used
concurrently on different Computers, unless the
service plan does not require individual computer
licenses.
(c) Reservation of Rights. All rights not expressly
granted are reserved by RPost.
(d) Accessing Services Using the Software. Your use
of any Service accessible using the Software is
covered by this EULA however, there may be
additional governing terms of use, conditions or
notices for specific services.
2.2 Authentication. Each Registered Receipt(tm)
e-mail and each e-mail that has an RPostŪ Digital
Seal(tm) mark may be authenticated up to five times
within the first seven years from the date of
sending of the corresponding Registered E-mailŪ
message, with no additional fees to the sender.
Beyond five authentications or seven years from the
date of sending of the corresponding Registered
E-mailŪ message, the entity requesting
authentication will be assessed a fee prior to the
authentication. The sender may request that RPost,
acting in its role as an Agent of the sender, not
authenticate e-mail messages with an RPostŪ Digital
Seal mark or Registered Receipt(tm) e-mails.
2.3 RPost Awareness Program. RPost reserves the
right to include user tips and educational material
on usage reports and service receipts e-mailed to
users.
2.4 Service Fees. RPost may, at any time, notify the
Customer about a change in fees, terms, and
conditions of Service. Those fees will be agreed to
by Customer as indicated by continued use of the
Service seven business days after notification has been sent
and received by the recipient mail server of record.
a)
Individual Plan. Includes account maintenance,
support and software upgrade charge. A user is
defined as one sender e-mail address. Pre-paid pack
automatically re-charges unless service is
cancelled. Unused units expire 12-months after
purchase or re-charge.
b)
Business Plans. Annual account maintenance, support
and software upgrade charge included for all users. Plans are annual commitments paid
monthly. Plans continue monthly after the
initial 12-month period. After the first 90-days
plans may be adjusted on a calendar monthly basis.
Unused units expire at the end of each month.
Overage is calculated by the number of overage units
charged at the plan per unit cost plus 10 to 20%, as
defined in the local currency purchase order.
2.5 Restrictions.
(a) You must maintain all copyright notices on all
copies of the Software.
(b) Limitations of Reverse Engineering,
Decompilation and Disassembly. You may not reverse
engineer, decompile, or disassemble the Software or
Service.
(c) Rental. You may not rent or lease or lend the
Software or Service.
(d) Software Transfer. You may permanently transfer
all of your rights under this EULA one time,
provided you retain no copies, you transfer all of
the Software (including all component parts, the
media and printed materials, any upgrades, this EULA
and, if applicable, the Certificate of
Authenticity), you do not receive any payment or
other compensation for transferring the Software and
the recipient agrees to the terms of this EULA,
which includes payment of services to RPost. If the
Software portion is an upgrade, any transfer must
include all prior versions of the Software if they
exist in your possession.
(e) Support Services. RPost may provide you with
support services related to the Software or Service
("Support Services"), in its discretion. Use of
Support Services, if any, is governed by the RPost
policies and programs described in other RPost
materials. Any supplemental software code provided
to you as a part of Support Services shall be
considered part of the Software and subject to the
terms of this EULA. With respect to technical
information you provide to RPost as part of the
Support Services, RPost may use such information for
its business purposes, including for product support
and development. RPost will not utilize such
technical information in a form that personally
identifies you except to the extent necessary to
provide you with support.
(f) Replacement, Modification and Upgrade of the
Software or Service. RPost reserves the right to
replace, modify or upgrade the Software or Service
at any time by offering you a replacement or
modified version of the Software or such upgrade and
to charge for such replacement, modification or
upgrade. Any such replacement or modified software
code or upgrade to the Software or Service offered
to you by RPost shall be considered part of the
Software and subject to the terms of this EULA
(unless this EULA is superseded by a further EULA
accompanying such replacement or modified version of
or upgrade to the Software). In the event that RPost
offers a replacement or modified version of or any
upgrade to the Software or Service, (i) your
continued use of the Software or Service is
conditioned on your acceptance of such replacement
or modified version of or upgrade to the Software or
Service and any accompanying superseding EULA and
(ii) in the case of the replacement or modified
Software, your use of all prior versions of the
Software is terminated.
(g) Message Limitations. The amount of bandwidth
allotted per user is limited. Some messages may not
be processed due to bandwidth constraints, inbound
or outbound limitations. You agree that RPost is not
responsible or liable for the deletion or failure to
process messages. RPost shall have no obligation to
maintain any content in your account or to forward
messages to you or any third party.
3. TAXES
3.1 Taxes. Customer will pay or reimburse RPost for
any applicable sales or use or similar taxes, or
value-added taxes or charges, however designated,
levied or based, on the charges for Services
rendered under this Agreement.
4. PROPRIETARY RIGHTS
4.1 Proprietary Rights. Customer hereby agrees and
acknowledges that RPost is the sole and exclusive
owner of RPost technology, processes and services
(including the (R)Enabler Software), and all RPost
copyrights, trademarks, service marks, trade
secrets, patents, and other proprietary rights used
in connection with the Service. Customer agrees and
acknowledges that all (R)egistered E-mailŪ Sponsors
are the sole and exclusive owners of their
copyrights, trademarks, and service marks used in
connection with the Service. Customer agrees that "RPOST",
"(R)EGISTERED E-MAIL", "REGISTERED E-MAIL", "(R)EGISTERED
RECEIPT", "REGISTERED RECEIPT", "(R)", "(O)", "(C)",
"REGISTRATION NETWORKS", "DIGITAL SEAL", "SIGNATURE
PASSWORD", "LEGAL PROOF", "NATIONAL MAIL SERVER" and
RPost logos and service banners are among the
registered and unregistered service marks and
trademarks owned by RPost, with additional marks
listed at http://www.rpost.com/site/about/about_intellectual.htm.
Customer shall not reverse engineer, copy, modify,
distribute, or transfer to any third party any of
the (R)Enabler Software or related products.
Customers also shall not distribute or provide
access to the Service to any third party, except as
provided by this Agreement. Customer shall not use
any of the RPost trademarks on a website or other
public marketing material without prior written
permission by RPost.
4.2 Promotional Activities. Customer agrees to
permit RPost to use Customer's logo and name on the
RPost Web site unless Customer requests in writing
that it not be used. Customer agrees to be listed in
RPost's published customer reference list and
discussed in RPost's case studies in connection with
Customer's use of RPost Services unless Customer
requests in writing that it not be listed. Customer
also grants RPost the right to issue press releases
announcing the Customer relationship and identifying
the type of Services purchased by Customer unless
Customer requests in writing that one not be issued.
5. CONFIDENTIAL INFORMATION
5.1 Definition. Confidential Information shall
include any non-public information regarding the
products, services or business of a party (and, if
either party is bound to protect the confidentiality
of any third party's information, of a third party)
where such information is marked or otherwise
communicated as being "proprietary" or
"confidential" or the like, any e-mail that is being
processed by the Service during processing of the
e-mail transaction, or where such information
should, by its nature, be reasonably considered to
be confidential and/or proprietary as well as
information specifically identified as Confidential
Information in this Agreement.
5.2 Disclosures and Use. Each party agrees to
safeguard the confidentiality of Confidential
Information of the other party with the same degree
of care as it applies to its own confidential
information, but in no case less than reasonable
care. The receiving party shall use Confidential
Information of the disclosing party only in
performing under this Agreement and shall retain the
Confidential Information in confidence and not
disclose it to any third party (except as authorized
under this Agreement) without the disclosing party's
express written consent. The receiving party shall
disclose the disclosing party's Confidential
Information only to its employees and contractors
who have a need to know such information for the
purposes of this Agreement.
5.3 Exceptions. Notwithstanding the foregoing, each
party's confidentiality obligations hereunder shall
not apply to information which: A. is already known
to the receiving party prior to disclosure by the
disclosing party; B. becomes publicly available
without fault of the receiving party; C. is
rightfully obtained by the receiving party from a
third party without restriction as to disclosure; D
is approved for release by written authorization of
the disclosing party; E. is developed independently
by the receiving party without use of the disclosing
party's Confidential Information, as shown by
appropriate documentation; or F. is required to be
disclosed by law or governmental regulation,
provided that the receiving party provides
reasonable notice to disclosing party of such
required disclosure and reasonably cooperates with
the disclosing party in limiting such disclosure.
The RPost Software and Service do not store any
e-mail or authenticating information relating to
e-mail processed by the Software or Service.
5.4 Remedies. Notwithstanding any other provisions
of this Agreement, the disclosing party shall be
entitled to seek a court injunction to protect its
interests in the event of any breach or threatened
breach by the receiving party of this Section.
6. PRIVACY
6.1 RPost Collection and Use of Customer
Information. RPost collects the following
information when a Customer uses the Services: name
of the Customer, name of Sender, E-mail address of
the intended recipient, size of the e-mail file
sent, the Signature Password, and information listed
within parenthesis on the subject field of the (R)egistered
E-mailŪ message. This information is used by RPost
for billing purposes and the provision of the
Service and is Confidential Information of Customer.
In some instances, RPost may require that Customers
provide RPost with a password to access the Service.
Passwords are Confidential Information of Customer.
The RPost Software and Service do not store any
e-mail or authenticating information relating to
e-mail processed by the Software or Service, except
in the case of the sender opting to use the
Secu(R)mail service or in some instances, a managed
receipt archive service. RPost agrees and abides by
each respective country's privacy rules and
principles as service is taken up in the country.
RPost abides by practices and procedures to meet the
requirements of the European Commission’s Directive
on Data Protection “safe harbor”, the National
Privacy Principles of Australia, and the U.S.
Privacy Act 1988, as well as other privacy laws
specific to other countries and territories.
6.2 RPost Access to Contents of (R)egistered E-mailŪ
messages. Customer understands and agrees that RPost
may have access to the content of (R)egistered
E-mailŪ messages only in the event that such access
is required (i) to repair a National Mail Server(tm)
or otherwise ensure the smooth operation of the
Service; (ii) to investigate or prevent the abuse of
the Service; or (iii) as otherwise provided in
Section 5 of this Agreement. Such contents are
Confidential Information of Customer and subject to
the provisions of Section 5. The RPost Software and
Service do not store any e-mail or authenticating
information relating to e-mail processed by the
Software or Service.
7. NO WARRANTIES
7.1 Failure to Provide Service. Customer will be
notified if the Service is unavailable. Customer's
sole and exclusive remedy for any failure to provide
the Service is that RPost will re-perform the
applicable Service. RPost has no other
responsibility or liability for any such outage or
any failure to deliver an e-mail.
7.2 Undeliverable (R)egistered E-mailŪ messages. The
Service will return a Registered Receipt(tm) to the
sender. If a Registered E-mailŪ message is
undeliverable, the Registered Receipt(tm) will
notify the sender of such delivery status. There is
no additional responsibility to re-deliver that
e-mail. It is solely the responsibility of the
Sender to re-deliver that e-mail. The Service will
charge for sent (R)egistered E-mailŪ messages that
are undeliverable.
7.3 Passwords. The End User is solely responsible
for the security and privacy of their Signature
Password and any other password that may be
associated with the Service. RPost maintains
confidentiality of all such passwords and does not
disclose such passwords to any company or
organization.
7.4 Digital Seal(tm). RPost makes no warranty that
the RPostŪ Digital Seal(tm) mark will remain valid
in all e-mail systems of all recipients and as that
e-mail sent "Registered" and with a "Digital Seal"
mark is forwarded. RPost makes no representation
that a Registered E-mailŪ message with a Digital
Seal(tm) mark will have the Digital Seal(tm) mark
remain associated with the Registered E-mailŪ
message at or after that Registered E-mailŪ message
reaches its first destination. RPost makes no
representation that the Service will be capable of
sending all e-mail, tagged by the End-User for
Digitally Sealing, with a Digital Seal(tm) mark.
Further, RPost does NOT claim that Digital Seal(tm)
techniques can prove the identity of the End-User or
sender of the Digitally Sealed Registered E-mailŪ
message.
7.5 Disclaimer of Warranties. Neither RPost nor any
(R)egistered E-mailŪ service Sponsor controls
Customer's desktop computer hardware, software and
network services provided by Customer to allow
access to the Service. The computer desktop and
network performance and/or nonperformance can impair
or disrupt Customer's connections to e-mail, the
Internet, or portions thereof, and the transmission
of data. Accordingly, RPost and all (R)egistered
E-mailŪ service Sponsors disclaim any and all
liability resulting from or relating to such events.
The service is provided "as is" and "with all
faults," and RPost makes no additional warranties or
representations, express or implied, including
without limitation warranties of merchantability or
fitness for a particular purpose or title or arising
from a course of dealing, usage or trade practice. (R)egistered
E-mailŪ service Sponsors make no warranties or
representations whatsoever to customer. RPOST AND
ITS SUPPLIERS AND SPONSORS PROVIDE THE SOFTWARE "AS
IS" AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL
OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS,
IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO
ANY (IF ANY) IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, OF FITNESS FOR A PARTICULAR
PURPOSE, OF LACK OF VIRUSES, AND OF LACK OF
NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT. ALSO,
THERE IS NO WARRANTY OR CONDITION OF TITLE, OF QUIET
ENJOYMENT, OR OF NONINFRINGEMENT. THE ENTIRE RISK
ARISING OUT OF THE USE OR PERFORMANCE OF THE
SOFTWARE IS WITH YOU. REFER TO THE LEGAL NOTICE
SECTION AT WWW.RPOST.COM FOR FURTHER INFORMATION.
8. INDEMNIFICATION
8.1 Customer Indemnification Obligations. Customer
shall indemnify and hold RPost and any (R)egistered
E-mailŪ service Sponsor harmless against any claims,
losses, liabilities, damages and expenses (including
reasonable attorneys' fees) arising out of or
connected with data or content in Customer's systems
or Web site or in Customer's or End-User's e-mail or
otherwise used or transmitted by Customer or
End-User, or arising out of or connected with
Customer's business activities. Further, Customer
shall indemnify and hold RPost and any (R)egistered
E-mailŪ service Sponsor harmless against any claims,
losses, liabilities, damages and expenses (including
reasonable attorneys' fees) arising out of or
connected with any failure in a delivery of a
Registered E-mailŪ message or failure in any
authentication of an e-mail with an RPostŪ Digital
Seal(tm) or a Registered Receipt(tm) e-mail or
arising out of any use of the Registered E-mailŪ
service.
8.2 Conditions to Indemnification. The indemnity
obligations set forth in this Section are contingent
upon: (a) the indemnitee giving prompt written
notice to the indemnitor of any such claim(s); (b)
the indemnitor at its option having sole control of
the defense or settlement of the claim; and (c) at
the indemnitor's request and expense, the indemnitee
cooperating in the investigation and defense of such
claim(s).
8.3 EXCLUSION OF ALL DAMAGES. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RPOST,
ITS SUPPLIERS, ITS RESELLERS, OR ITS SPONSORS BE
LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT,
INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES
FOR ANY INJURY TO PERSON OR PROPERTY, DAMAGES FOR
LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION, FOR LOSS OF PRIVACY FOR
FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR
OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY
PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF
OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO
USE THE SOFTWARE OR SERVICE, WHETHER BASED ON
CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE, EVEN IF RPOST OR ANY SUPPLIER, RESELLER,
OR SPONSOR HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THIS EXCLUSION OF DAMAGES SHALL BE
EFFECTIVE EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL
PURPOSE.
8.4 RPost will indemnify, defend and hold Customer
harmless from and against any and all costs,
liabilities, losses, and expenses (including, but
not limited to, reasonable attorneys' fees)
(collectively, "Losses") arising out of or in
connection with a claim, suit, action, or proceeding
brought by any third party against the Customer
which arise out of or result from the infringement
of any copyright, patent, trademark, or
misappropriation of a trade secret relating to
RPost's service; provided that Customer (a) promptly
gives RPost notice of the claim, suit, action, or
proceeding; (b) gives RPost sole control of the
defense and related settlement negotiations; and (c)
provides RPost with all reasonably available
information and assistance necessary to perform
RPost's obligations under this paragraph. If RPost's
service is held to infringe any intellectual
property right, RPost may, in its sole discretion
and at its own expense, either procure a license
that will protect the Customer against such claim
without cost to the Customer or replace RPost's
service with a non-infringing service. Provided that
RPost complies with this Section, Customer shall
have no remedy against RPost, except it may at its
option terminate the EULA.
9. LIMITATION OF LIABILITY; LIMITATION OF REMEDY
9.1 Limitation of Damages. In no event shall RPost
or any (R)egistered E-mailŪ service Sponsor be
liable for any indirect, consequential, incidental,
special or punitive damages, including without
limitation loss of use, interruption of business,
loss of data or loss of profits, or loss due to a
dispute involving the validity or a Registered
Receipt(tm) e-mail, its contents, or delivery status
interpretation, arising out of or in any way
connected with this agreement, the Service or any
software applications, even if RPost has been
advised of the possibility of such damages. In no
way shall any (R)egistered E-mailŪ service End-User
or Customer act as an agent in a litigation against
RPost or authorize an agent to represent them in a
litigation against RPost. In no event will RPost
have liability for any amount in excess of the
amounts paid per Unit of a Registered E-mailŪ
message by Customer under this agreement. In no
event shall any (R)egistered E-mailŪ service Sponsor
be liable for any damages whatsoever arising out of
or connected with this Agreement or the Service.
9.2 Customer Content. In no event shall RPost or any
(R)egistered E-mailŪ service Sponsor be responsible
or liable with respect to any inaccuracy,
illegality, misinformation or any violation of a
third party right or interest associated with or
directly or indirectly arising out of the Customer's
content.
9.3 Customer Equipment. RPost assumes no liability
for damage to, or loss of, any Customer equipment or
data resulting from any cause.
9.4 Limitation of Remedy. If RPost fails to cure a
default under this Agreement or a Schedule within 60
(sixty) days of Customer's written notice of the
default and its intent to terminate, Customer's sole
and exclusive remedy is the right to terminate the
Service and obtain a refund of only charges paid in
advance (other than charges specified as
nonrefundable), if any, for the terminated portion
of the Services.
10. TERM AND TERMINATION
10.1 Term. Unless terminated earlier pursuant to
Sections 3.1, 10.2, 10.3, this Agreement shall
commence on the Effective Date or Installation Date
and continue for one year and will renew for
successive one-year periods unless notice by either
party of its intent not to renew is given thirty
days prior to the end of the then current one-year
term. RPost may terminate service at any time. In
addition, RPost may terminate this EULA by notifying
you that your continued use of the Software or
Service is prohibited.
10.2 Termination for Cause. Either party may
terminate this Agreement by written notice to the
other party upon the other party's material breach
of any material term of this Agreement (subject to
the other party's right to cure within sixty (60)
days after receipt of such notice, provided,
however, that the cure period for breach of
obligation to pay fees when due shall be fifteen
(15) days), the other party's cessation of business,
the other party's insolvency, or the institution of
any bankruptcy or similar proceeding by or against
the other party.
10.3 Effect of Termination. Upon termination of the
Service, Customer must cease using the Service and
the (R)Enabling Software and all rights and
obligations of the parties shall cease, except for
the payment obligations and as provided in Section
11.8. Termination by RPost shall not relieve
Customer of the obligation to pay any fees owing to
the date of termination. Upon termination of this
Agreement, each party will return to the other party
any Confidential Information, Software, of such
other party, which is in its possession.
11. GENERAL
11.1 Relationship of Parties. Nothing in this
Agreement will be construed to imply a joint venture
or partnership. RPost is an interested party of the
sender and RPost acts as an Agent of the sender of
the Registered E-mailŪ message. If the sender would
like RPost to turn off authentication capabilities
for a particular Registered E-mailŪ receipt, RPost
will do so and reserves the right to charge the
sender a fee for this additional service request.
RPost requests that the customer provide periodic
feedback about how RPost can improve the service.
Customer agrees that they are in no way an employee
of RPost and RPost will be considered an independent
contractor when performing Services under this
Agreement.
11.2 RPost Testimony. In the event that RPost
personnel are subpoenaed or otherwise asked to give
testimony in any disputes between a Customer and any
third party, which involves the Software or Service,
the Customer agrees to pay RPost for its services at
a rate of $350.00 per hour per person, plus
reasonable travel and other expenses.
11.3 Assignment. Customer shall not assign any of
the rights or obligations under this Agreement
without the prior written consent of RPost, which
consent shall not be unreasonably withheld.
Notwithstanding the foregoing, Customer may assign
its interest herein, upon written notice to RPost,
to a subsidiary of Customer's or to an entity that
acquires substantially all Customer's assets or
business which expressly assume Customer's
obligations. The rights and liabilities of the
parties hereto will bind and inure to the benefit of
its respective successors and assigns. Nothing in
this agreement shall be construed as to prohibit
RPost from outsourcing provision of any part of the
Service or from offering the (R)egistered E-mailŪ
service under the brand of a (R)egistered E-mailŪ
service Sponsor.
11.4 Complete Understanding; Modification. This
Agreement constitutes the entire agreement between
the parties relating to its subject matter and this
Agreement supersedes all prior agreements and
understandings between the parties with respect to
its subject matter and may not be changed unless
mutually agreed upon in writing by both parties. No
different or additional terms set forth in a
purchase order or other communication will be
binding on RPost unless RPost specifically agrees in
writing to such different or additional terms. An
Officer of RPost is required to authorize any
changes on behalf RPost. This agreement is binding
if accepted in electronic form by the Customer.
11.5 Notices. Any notices required or permitted
hereunder must be given as follows: to RPost at the
e-mail address support@rpost.com as long as there is
a return receipt on the e-mail that can prove
delivery; to the Customer or End-User, at the e-mail
address that the End User or Customer is using to
send Registered E-mailŪ messages from when they use
the Service. Such notice will be deemed given upon
confirmed receipt by e-mail or a Registered E-mailŪ
message.
11.6 Governing law; consent to jurisdiction. This
Agreement shall be deemed to be a contract made
under, and shall be construed in accordance with,
the laws of the State of Delaware if the user is
within the United States, and construed in
accordance with the laws of Bermuda if the user is
outside of the United States, excluding its conflict
of law rules, and under the laws of the state of New
South Wales if the user is within Australia, unless
otherwise agreed to in writing.
11.7 Dispute Resolution. Except as provided in
Section 5 or agreed to in writing by a separate
agreement with RPost, any dispute or claim in the US
or US territory arising out of or in connection with
this Agreement or the performance, breach or
termination thereof, will be finally settled by
binding arbitration in Los Angeles, California under
the Commercial Arbitration Rules of the American
Arbitration Association by an arbitrator appointed
in accordance with those rules. Judgment on the
award rendered by the arbitrator may be entered in
any court having jurisdiction thereof. The
non-prevailing party/parties shall pay the costs of
the arbitration, including the arbitrator's fee and
administrative costs and all related expenses. The
subject and proceedings of the arbitration shall be
Confidential Information. In the event of a dispute
arising out of or in connection with this Agreement
with any party/parties outside of the United States
or its territories, including any question regarding
its existence, validity or termination shall be
governed by and construed in accordance with laws of
Bermuda and shall be referred to and finally
resolved by confidential arbitration under
Commercial Arbitration Rules of the Chartered
Institute Of Arbitrators. The arbitration shall
consist of a single arbitrator mutually agreed upon
by the parties, or, in the absence of such
agreement, as determined by the Commercial
Arbitration Rules. Any arbitration shall take place
in London, England. The award of the arbitrator
shall be final and binding. Each party retains the
right to seek judicial assistance to enforce any
decision of the arbitrator, including the final
award. The parties shall instruct the arbitrator to
render his/her decision no later than ninety (90)
days after submission of the dispute, which decision
shall be in writing and shall specify the factual
and legal bases for the award. The arbitration of
such issues, including the determination of any
amount of damages suffered by any party hereto,
shall be final and binding upon all parties. The
arbitrator shall have the authority to grant
specific performance or other injunctive relief.
Judgment on the arbitration award may be entered in
any court having jurisdiction thereof. Except as
otherwise set forth in this Agreement, the cost of
any arbitration hereunder and all fees involved
including reasonable attorneys' fees incurred by the
parties shall be paid in full by the non-prevailing
party/parties in a manner as determined by the
arbitrator. Notwithstanding the foregoing, the
parties agree that certain violations or threatened
violations of this Agreement, will result in
irrevocable harm to the other party, for which
damages would be an inadequate remedy. In addition
to any rights and remedies otherwise available,
either party, before or during arbitration, may
apply to a court having jurisdiction for a temporary
restraining order, preliminary injunction or other
interim or conservatory relief, where such relief is
necessary to protect its interests pending
completion of the arbitration proceedings without
breach of this arbitration agreement and without any
abridgment of the powers of the arbitrator.
11.8 Survival of Obligations. The rights and
obligations with respect to Proprietary Information,
Confidential Information, Privacy, Warranties,
Indemnification, Limited action of Liability, and
Disclaimers shall survive the termination or
expiration of this Agreement.
11.9 Amendments. This Agreement may not be modified
or amended except by written instrument signed by an
authorized representative of both parties. RPost
requires authorized representative to be an Officer
of RPost.
11.10 Counterparts. This Agreement may be executed
in counterparts, each of which shall be deemed an
original, but all of which taken together shall
constitute one and the same Agreement. All
electronic versions of the Agreement shall be deemed
as valid as originals. If the (R)Enabler Software is
successfully installed and the terms are
acknowledged during the installation process, than
this Agreement shall be deemed as valid as original
in electronic form.
11.11 Litigation. If the Customer is involved in
litigation where the (R)egistered E-mailŪ system is
in question, the Customer is required to notify
RPost and RPost reserves the right to defend the (R)egistered
E-mailŪ system in the litigation.
11.12 U.S. Government Restricted Right. All Software
provided to the U.S. Government pursuant to
solicitations is provided with the commercial rights
and restrictions described elsewhere herein.
11.13 Export Restrictions. You agree that you will
not export or re-export the Software, any part
thereof, or any process or service that is the
direct product of the Software (the foregoing
collectively referred to as the "Restricted
Components"), to any country, person or entity
subject to U.S. export restrictions. You
specifically agree not to export or re-export any of
the Restricted Components (i) to any country to
which the U.S. has embargoed or restricted the
export of goods or services, which currently
include, but are not necessarily limited to Cuba,
Iran, Libya, North Korea, Sudan and Syria, or to any
national of any such country, wherever located, who
intends to transmit or transport the Restricted
Components back to such country; (ii) to any person
or entity who you know or have reason to know will
utilize the Restricted Components in the design,
development or production of nuclear, chemical or
biological weapons; or (iii) to any person or entity
who has been prohibited from participating in U.S.
export transactions by any federal agency of the
U.S. government. You warrant and represent that
neither the U.S. Commerce Department, Bureau of
Export Administration nor any other U.S. federal
agency has suspended, revoked or denied your export
privileges.
EULA agreed to and accepted by Customer.
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