Last Revised: May 9, 2014
PLEASE READ THIS AGREEMENT CAREFULLY, AS IT CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS AND REMEDIES.
This Workspace Service Agreement (this “Agreement”) is entered into by and between DomainSmart, an AZ individual ("DomainSmart") and you, and is made effective as of the date of electronic acceptance. This Agreement sets forth the terms and conditions of your use of DomainSmart’s Email service (“Email”), Online Storage service (“Online Storage”), Fax Thru Email service (“Fax Thru Email”), and/or Online Calendar service (“Online Calendar”) (individually and cumulatively referred to as “Service” and “Services”), and represents the entire agreement between you and DomainSmart concerning the subject matter hereof.
Your electronic acceptance of this Agreement signifies that you have read, understand, acknowledge and agree to be bound by this Agreement, along with our Universal Terms of Service Agreement, which is incorporated herein by this reference, and any plan limits presented on the product landing pages, which are also incorporated herein by this reference.
The terms “we”, “us” or “our” shall refer to DomainSmart. The terms “you”, “your”, “User” or “customer” shall refer to any individual or entity who accepts this Agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of this Site or the Services after such changes or modifications shall constitute your acceptance of this Agreement and Service limitations as last revised. If you do not agree to be bound by this Agreement and the Service limitations as last revised, do not continue to use this Site or the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your shopper account information current. We assume no liability or responsibility for your failure to receive an email notification if such failure results from an inaccurate email address.
2. DESCRIPTION OF SERVICES; PAID AND UNPAID
We offer a variety of Services in our Workspace suite of products, including Email, Online Storage, Fax Thru Email and Online Calendar. All of these Services are available for purchase as stand-alone products and some are occasionally included for free with the purchase of other products. Free Services may offer fewer features than the paid versions. Regardless of whether you pay for your use or receive the Services for free, your use of each of these Services is subject to both the general provisions of this Agreement and the provisions specific to whichever Service(s) you use.
3. LIMITATIONS; ACCOUNT TERMINATION
Workspace Desktop Tools. In order to achieve enhanced functionality of Email and Online Calendar, and full functionality of Online Storage, when being accessed from web-based applications, you will need to download our Workspace Desktop Tools (“WDT”). WDT will not automatically be installed on your computer, and is provided for convenience only. We make no representations or warranties regarding WDT, and expressly disclaim any liability regarding the same. Additionally, we reserve the right to modify, change, or discontinue any aspect of WDT at any time.
Excessive Account Usage. If your account usage for any Service exceeds your plan-specific limits, you must either (i) upgrade to a plan that sufficiently meets your account usage, or (ii) reduce your account usage so that it remains within your plan. Should you fail to take one of these two actions, we reserve the right to (a) charge additional usage fees to your account or (b) terminate your account. Account usage determinations shall be made by us using our sole and absolute discretion. Unless otherwise specified, unused monthly allotments will not accrue or carry over from month to month.
Data Retention. The Services are not intended for archival purposes. You are solely responsible for maintaining independent back-up copies of your emails, files, distribution lists and other content. We expressly disclaim any liability or responsibility for any loss, damage or destruction of your emails, files, distribution lists or any other content.
Other Restrictions. You acknowledge and agree that you will not use any of the Services to (i) send high-volume, mass or bulk emails, (ii) store audio or video files (or other large files or media not intended for emailing), (iii) back up a hosting account, or (iv) any other uses in violation of our policies, as may be updated from time to time.
We may block, suspend or terminate any Services if you or your account is in violation of this Agreement.
4. PROVISIONS SPECIFIC TO EMAIL SERVICES
Core Services. Our Email service provides you with the ability to send and receive electronic mail via the Internet using a personal email address linked to your domain name. In order to use our Email service, you must (i) register a domain name, (ii) provide all equipment necessary to establish a connection to the Internet, and (iii) provide your own connection to the Internet.
Plan Limits. You acknowledge and agree that Email is offered with different plan levels or limits. These plan limits are presented on the Email landing page and Hosted Exchange landing page of this Site and may relate to (i) the number of recipients allowed per email message, (ii) the number of email messages allowed per day, (iii) the size of each email message and/or attachment, (iv) the number of contacts allowed per shared address list, (v) the number of contacts allowed per distribution list, (vi) the number of email messages allowed per minute, (vii) the number of devices allowed per account, or (viii) such other items as we may specify.
Spam and Virus Protection. Our Email includes spam and virus protection. All email sent to and from your email address will automatically be scanned to assist in preventing spam and/or viruses from being transmitted to and from your email program and computer system, and this feature cannot be disabled or configured by you. You acknowledge and agree that our spam and virus protection feature is not guaranteed to be one hundred percent (100%) effective or error-free and may delete email messages and/or attachments that you wish to send or receive, or allow the transmission of spam and/or viruses to and from your email program and computer system. You acknowledge and agree that we shall have no liability to you or any third party with respect to our spam and virus protection feature, your failure to send or receive any email messages and/or attachments as a result thereof, or the transmission of spam and/or viruses to and from your email program and computer system.
Hosted Exchange Email: Hosted Exchange Email is an email productivity tool based on the Microsoft Exchange Server® platform that allows you to access and synchronize your email, contacts, calendars, and task management tools.
As part of the Hosted Exchange Email service, you may be allowed to use certain software or applications developed and owned by third-party providers (individually and collectively, the “Software”) that we may contract with from time to time. We reserve the right to modify, change, or discontinue the Software at any time and you agree to cooperate in performing such steps as may be necessary to install any updates to the Software. The Software is neither sold nor distributed to you and you may use the Software only as part of the Hosted Exchange Email service. You may not use the Software outside of the Hosted Exchange Email service. We may provide your personal information to third-party providers as required to provide the third-party Software.
You acknowledge and agree that your use of the Software is subject to our agreement(s) with the third-party providers. In addition, if the Software is accompanied by or requires consent to a service or license agreement from the third-party provider, your use of the Software is subject to such service or license agreement. You may not download, install, or use any Software that is accompanied by or requires consent to a service or license agreement from a third-party provider unless you first agree to the terms and conditions of such service or license agreement.
You may not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Software. You may not reverse engineer, decompile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law. You may not use the Software in any application or situation where the Software failures could lead to death or serious bodily injury to any person, or to severe physical or environmental damage.
We and our third-party providers make no representations or warranties about any third-party Software offered in connection with the Services, and expressly disclaim any liability, damages, whether direct, indirect or consequential, or responsibility regarding the same. We, and not our third party provider will provide technical support for the Software.
You acknowledge and agree that we will automatically add a SRV record to your DNS if your domain name is registered with DomainSmart. You may remove the SRV record through the DNS control panel. The SRV record may be removed when the last email address associated with the domain name is removed or when the domain name is transferred.
5. PROVISIONS SPECIFIC TO FAX THRU EMAIL
Core Services. Fax Thru Email is an online fax service that allows you to send and receive faxes via the Internet, using a unique fax number, without the need for a telephone line. Incoming faxes are received directly in your email account and outgoing faxes are sent directly from your email account or by logging in to your Fax Thru Email account.
Plan Limits. You acknowledge and agree that Fax Thru Email is offered with different plan levels or limits. These plan limits are presented on the Fax Thru Email landing page of this Site and may relate to (i) the number of recipients allowed per fax message, (ii) the number of fax messages allowed during a given time period, (iii) the size of each fax message, or (iv) such other items as we may specify.
Available Plans; Allotted Pages. Fax Thru Email offers both standard plans (“Standard Plans”) and toll-free plans (“Toll-Free Plans”). Standard Plans base their billing model on the number of pages sent per month. Toll-Free Plans base their billing model on the number of pages sent per month and the number of pages received per month. After you choose your plan, we will assign you a fax number (“Assigned Number”) and credit that Assigned Number with the number of allotted inbound and/or outbound pages per month specific to your plan (“Allotted Pages”). Any Allotted Pages not used in the month allotted will expire without refund or credit.
Page Packs. If you anticipate running out of Allotted Pages, you may purchase additional pages of varying quantities (“Page Packs”) and apply them to your Assigned Number. You may purchase multiple Page Packs for a single Assigned Number, but Page Packs may only be associated with a single Assigned Number. Page Packs are good for one (1) year from the date of purchase. Pages purchased as part of a Page Pack and not used within one (1) year from the date of purchase will expire without refund or credit. Should you exceed your Allotted Pages and/or Page Packs, you acknowledge and agree that you may not be able to (i) send any fax messages if you are enrolled in a Standard Plan, or (ii) send or receive any fax messages if you are enrolled in a Toll-Free Plan.
Definition of Fax Page. The number of pages sent and/or received per month is calculated in accordance with a formula that averages the pages used. You acknowledge and agree that our formula is not a representation of actual pages used, and that our formula is a fair and practical manner for calculating the pages used by your Assigned Number.
No Ownership of Assigned Number. You acknowledge and agree that you are not the owner of the Assigned Number, and ownership of the Assigned Number is vested solely in us and the third-party telecommunication providers we may contract with from time to time. You acknowledge and agree that this Agreement, and your use of the Assigned Number provided hereunder, is subject to such third-party telecommunication agreements.
No Transfer or Porting of Assigned Number. You acknowledge and agree that you are expressly prohibited from causing or attempting to cause the Assigned Number to be transferred or “ported” to any other service provider, telephone carrier, or other person or entity.
Re-Assignment of Assigned Number. You acknowledge and agree that following the expiration or other termination of your Fax Thru Email account for any reason, such Assigned Number may immediately be re-assigned to another customer, and we expressly disclaim any liability or responsibility regarding the same. Accordingly, you hereby waive any claims with respect to any such re-assignment, whether based on warranty, contract, tort, or any other legal or equitable theory.
Change of Assigned Number. You acknowledge and agree that we may need to change the Assigned Number from time to time due to an area code split or any other reason, which may or may not be within our control, and we expressly disclaim any liability or responsibility regarding the same. Accordingly, you hereby waive any claims with respect to any such change, whether based on warranty, contract, tort, or any other legal or equitable theory.
No Junk Faxes. By using Fax Thru Email, you acknowledge and agree to not use the Service for spam, and you agree to comply with the provisions of the Telephone Consumer Protection Act of 1991, the CAN-SPAM Act of 2003, the Junk Fax Prevention Act of 2005, and all other legislation applicable to faxes.
6. PROVISIONS SPECIFIC TO ONLINE STORAGE
Core Services. Online Storage is an online file storage system that allows you to store and share files via the Internet without having to (i) use internal or external hard drives or (ii) email large files. In addition, Online Storage allows you to access your files from any device with Internet access (e.g., work computer, home computer, mobile device, etc.).
Plan Limits. You acknowledge and agree that Online Storage is offered with different plan levels or limits. These plan limits are presented on the Online Storage landing page of this Site and may relate to (i) the amount of storage space purchased, and (ii) the number of files that can be stored and shared. In addition to the limits set forth on the landing page, you are limited to 50,000 folders and you may not store more than 100,000 files within a single directory or folder. In the event you exceed these limits, we may suspend your account until you are in compliance with the limits.
Trial Account. From time to time, at our discretion, we may offer free trials of Online Storage (“Trial Account”) for the purpose of allowing you to sample the Service before committing to paying a fee. You agree that you are limited to one (1) thirty (30)-day trial account. Upon its expiration, you will not have access to your Trial Account. To continue using Online Storage, you must convert to a paid account before your Trial Account expires or within fourteen (14) days after expiration, after which time we reserve the right to delete your Trial Account and any customer data associated with such account without notice. We expressly disclaim any liability or responsibility for any loss or damage arising from or related to our deletion of your account information and customer data. We reserve the right to discontinue Trial Accounts at any time and without notice.
No High-Traffic Website Content. While Online Storage provides you with the ability to share files via public links, it is not designed for the purpose of hosting high-traffic website content. You acknowledge and agree that you will not use Online Storage (i) to host high-traffic website content (as determined by us in our sole and absolute discretion), or (ii) for any other uses in violation of our policies, as may be updated from time to time.
Security. We remind you that password protected files and file folders are only as secure as you keep them. While Online Storage offers the ability to designate files and file folders shared publicly as password protected (i.e., viewable only by those with whom you share a password), it is your responsibility to encrypt or password protect the links to those files and folders. If you fail to do so, it may be possible to access those password protected files and folders through public links. You are solely responsible for the activity that occurs on your account, whether authorized by you or not, and you must keep your account information secure, including without limitation your account passwords. We expressly disclaim any liability or responsibility for any unauthorized use of or access to your account or files or file folders.
7. PROVISIONS SPECIFIC TO ONLINE CALENDAR
Core Services. Online Calendar provides you with calendar services suitable for both single and multiple users, and home and work environments. Online Calendar generally allows you to (i) create and maintain personal and group calendars, (ii) schedule events, and invite others to events, (iii) check user availability, (iv) schedule shared resources, such as conference rooms and teleconference lines, (v) attach files to scheduled events, and (vi) manage and share tasks.
Plan Limits. You acknowledge and agree that Online Calendar is offered with different plan levels or limits. These plan limits are presented on the Online Calendar landing page and may relate to the number of users.
CalDAV Protocol. Please note that Online Calendar is available via the CalDAV protocol. Accordingly, if the CalDAV protocol is not native to your Third-Party Client, you will need to install an application that supports CalDAV to use this feature. If such an application is not available for your Third-Party Client, you will not be able to synchronize Online Calendar across platforms.
8. THIRD-PARTY CLIENTS AND SOFTWARE
Our Services may be compatible with third-party computer clients, such as Microsoft Outlook® and FileZilla, and third-party clients on mobile operating systems, such as iPhone®, BlackBerry®, and Droid® (individually and collectively, “Third-Party Client”).
If you elect to access the Services via a Third-Party Client, and such access is accompanied by or requires consent to a service or license agreement from such Third-Party Client, your use of the third-party software is subject to such service or license agreement. You may not download, install, or use any third-party software that is accompanied by or requires consent to a service or license agreement from a Third-Party Client unless you first agree to the terms and conditions of such service or license agreement. We make no representations or warranties about any third-party software, and expressly disclaims any liability or responsibility regarding the same.
9. TITLES AND HEADINGS; INDEPENDENT COVENANTS; SEVERABILITY
The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
10. DEFINITIONS; CONFLICTS
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Universal Terms of Service Agreement. In the event there is a conflict between the provisions of this Agreement and the provisions of the Universal Terms of Service Agreement, the provisions of this Agreement shall control.