These Services Terms & Conditions (the “Services Terms & Conditions”), together with the Pricing Addendum, Order Form, or other similar agreement, which incorporate by reference these Services Terms & Conditions, comprise the Master Services Agreement (the “Agreement”) and establish the terms and conditions on which MessageWatcher, either directly or through one of MessageWatcher’s partners (“Partner”), provides services to Customer, and any Customer Affiliates, if applicable (collectively, the “Customer”). By using, subscribing to, accessing, or participating in a free trial for any services provided by MessageWatcher, Customer agrees, without limitation or qualification, unless otherwise mutually agreed upon between the parties in writing, to be bound by the following terms and conditions.
Description of Services. A general overview of the services that may be available to Customer is posted at: www.MessageWatcher.com, subject to change from time to time at MessageWatcher’s discretion. The services of MessageWatcher subscribed for by Customer shall be the “Services” provided by MessageWatcher pursuant to this Agreement.
Representation & Eligibility. Both MessageWatcher and Customer represent and warrant that: a) it is properly licensed to do business and is in good legal standing in the jurisdictions in which it does business and will remain so during the term of this Agreement; b) the information it has provided the other party under this Agreement is true, accurate and complete; c) it has the authority and power to enter into this Agreement; d) to fully perform its obligations under this Agreement; and e) the entering into and performance of this Agreement does not conflict with, violate or result in a breach under any other contract or agreement to which it is a party, or by which it is bound. Each of MessageWatcher and Customer further represent and warrant that it shall conduct all of its activities under this Agreement in an ethical, honest, legal, businesslike and professional manner.
Upon execution of a Statement of Work, Order Form or the Pricing Addendum, MessageWatcher will initiate activation of the Services subscribed for by Customer. MessageWatcher will be responsible for the setup, configuration and testing of the Services on its Systems for Customer (“Installation”).
Service Availability. MessageWatcher will make commercially reasonable efforts to cause the Services to be available to Customer at all times, excluding Scheduled Downtime (downtime resulting from the normal scheduled Maintenance Window, New Releases or Emergency Maintenance, which will be scheduled outside Business Hours to the extent possible). MessageWatcher reserves the right to immediately implement Emergency Maintenance to remedy or prevent a Service impacting situation.
Trial Services. At its sole discretion, MessageWatcher may temporarily provide Customer with one or more of its Services on a testing basis with no financial condition attached (“Trial”). Trial Services may be provided for an appropriate period as determined by the parties and set out in the Pricing Addendum (“Trial Period”). Customer shall instruct MessageWatcher by Notice before the end of the Trial Period if it wishes to cancel and disable one or more of the Trial Services, otherwise the Trial Services will be deemed to be accepted and automatically converted into ongoing Services subject to billing and payment terms in accordance with the Pricing Addendum or at MessageWatcher’s current pricing. Trial Services converted into ongoing Services shall be billed commencing as of the Effective Date set out in the Order Form or Pricing Addendum.
Hours of Operation.
Normal business hours are 9:00 to 5:00 pm U.S. Mountain Time (UTC-07:00), Monday to Friday. (“Business Hours”)).
Technical Support. Technical support is provided to Customer by MessageWatcher support technicians via email (“Support”). Support is provided at no charge to Customer’s Administrative User(s) who works on behalf of all Customer’s end users, to assist in troubleshooting and resolving Provisioning and operational issues. Support is provided during Business Hours. Additionally, Support for network-related and urgent technical issues is provided 24/7. MessageWatcher’s systems are monitored 24/7. Customer may contact Support personnel by emailing [email protected], or a phone call from Customer to Support at 888-317-3278.
Compliance & eDiscovery Support. MessageWatcher’s Support team will provide reasonable amounts of guidance via email at no charge to Customer in connection with compliance and supervision requirements, or setup for eDiscovery, audit or data requests or extractions. As an additional service, Customer may optionally engage the Professional Services of MessageWatcher for conducting independent third-party audit and eDiscovery projects, in accordance with the Fees as set out in the Pricing Addendum or MessageWatcher’s current pricing.
Additional Support Services. MessageWatcher will provide direct email and telephone support to all other Users demand at an hourly rate, or as a company-wide support package, as may be agreed to by Customer. Information regarding the support that may be available to Customer will be provided upon request and is set out in the Pricing Addendum.
Preservation of Rights in Services. Other than the limited rights of the subscribing Customer to access and use the Services under this Agreement, no Intellectual Property Rights of a party will be transferred to the other. Customer and MessageWatcher each acknowledges and agrees that MessageWatcher, and its licensors where applicable, shall have and retain sole rights, title, and interest in and to the Services and all its related Intellectual Property Rights, including without limitation all goodwill and other proprietary rights.
Control and Operation. MessageWatcher will have control over the Installation, maintenance and Support of the Services and will determine the manner, methods, and procedures that MessageWatcher uses in providing the Services. Customer acknowledges that MessageWatcher cannot guarantee the successful operation of a Service where the Service may be affected by other systems of Customer or Customer’s suppliers that are not maintained or controlled by MessageWatcher, for example, email hosting provider, spam filtering solution, network provider, etc.
Fees and Payments
Customer will execute a Pricing Addendum or Order Form which sets forth the specific Services subscribed for by Customer during the Contract Term, as well as the Fees, Prices, initial User count, payment method, and Effective Date for the commencement of this Agreement otherwise MessageWatcher’s current pricing will be used when charging the Customer for services. Customer agrees to pay all Fees due under this Agreement. In the event Customer continues to use the Services beyond the expiration of any Trial Period, the Contract Term or after a termination date (as applicable), then, without Notice to the contrary, the terms of the most recent Pricing Addendum or Order Form together with any subsequent Service Order Agreements or Change Orders will be deemed to have been accepted or continued (as applicable).
Unless alternative payment terms have been specified in the Pricing Addendum or Order Form or are otherwise mutually agreed to by the parties in writing, Customer will pay all undisputed Fees (i) on the invoice due date, (ii) by pre-authorized credit, and (iii) card in arrears, based on a monthly Billing Cycle. Customer, if paying by credit card, hereby gives its authorization for all payments required to keep its accounts current, such payments to normally be debited in the amount of the Fees established in the Pricing Addendum or Order Form or as is calculated after any subsequent Change Order or emailed request. All credit card payments will normally be processed on the invoice due date.
Non-Payment. Any undisputed Fees due and owing by Customer (or disputed in bad faith) under this Agreement that are not received by MessageWatcher within 30 days of receipt of the invoice may be subject to a service charge of 10% (ten percent) of the outstanding balance plus interest charges of 1.5% (one and one half percent) per month, or the maximum charge permitted by law, whichever is less, as calculated from the invoice due date until the date payment is received by MessageWatcher. Such non-payment is also deemed to be a material default by Customer, and MessageWatcher may suspend or terminate Customer’s Service. Where Customer has been suspended for non-payment, the Services will not be reactivated until MessageWatcher receives payment in full of the outstanding balance, in addition to a $500.00 reactivation fee. MessageWatcher has no obligation to keep or to return to Customer the Archived Data if payment is not received by MessageWatcher within the payment terms described above. Customer shall not be entitled by reason of counterclaim, offset, reduction or other similar deduction to withhold any amount due to MessageWatcher.
Taxes of Customer. MessageWatcher is not responsible for any additional fees, charges, or taxes imposed by Customer’s local authorities, State or Province. Any other taxes or fees which may be due must be paid to the proper authorities directly by Customer.
Dispute, Discrepancy and Refund. The Fees billed on any invoice will be deemed to be correct if not disputed by Notice within 30 days of the invoice date. Any Notice by Customer must provide MessageWatcher with sufficient detail of the Fee discrepancy, in addition to other information that MessageWatcher may reasonably request, to review and resolve the dispute. The parties will work together in good faith to promptly and efficiently resolve the discrepancy to the satisfaction of both parties. During any resolution period, Customer will continue to pay all undisputed amounts to MessageWatcher. Where a discrepancy is determined, refunds will apply as follows: (i) if Customer has paid the invoice in full, a credit note for the discrepancy will be applied against future Fees; or (ii) if Customer has not paid the discrepancy, a credit note will be applied to the unpaid portion of Customer’s invoice. Alternatively, if the discrepancy is greater than $20.00, Customer may request a refund.
Change Orders. Where Customer makes adjustments to its Services after the Effective Date, including (as applicable) reported or actual changes to the number of Users, Domains and/ or Accounts, adding or deleting Services, exceeding storage usage allotments, requesting importing of Legacy Data, exporting Archived Data, or other demands of Customer that alter the numbers or the Services set forth in the Pricing Addendum or Order Form, corresponding adjustments will be made to Customer’s Fees (each a “Change Order”). Any Change Order will be based on the standard MessageWatcher Prices unless as otherwise set forth in the Pricing Addendum and be reflected in the invoice for a subsequent Billing Cycle or billed at the time of order (as applicable). During the Contract Term, Customer will maintain a minimum of 75% of the initial User count stated in Customer’s Pricing Addendum or Order Form, unless otherwise mutually agreed by the parties in writing. Accordingly, for any Change Order for a decrease in Fees due to a drop in User count below this minimum, the minimum will apply.
Upon completion of the Provisioning by MessageWatcher, MessageWatcher will provide Customer with sufficient instructions and assistance with respect to the setup, configuration, installation (if applicable) and testing of a Service or Account on Customer’s Systems (“Configuration”) to permit Customer using reasonable skill and effort to setup and configure all Services, Users, Groups, Policies and Systems to perform substantially in accordance with the Services specifications. Customer is responsible for, and has control over, the Configuration (including the accurate set up of Users and User aliases). Customer acknowledges that MessageWatcher is not liable for any loss resulting from the Configuration regardless of whether MessageWatcher supplied the software, instructions, or representatives of MessageWatcher to provide assistance with the Configuration. It is recommended for the Customer to provide advance notice to MessageWatcher of the Customer’s planned time of Configuration, as MessageWatcher technicians prefer to oversee and initially verify the secure receipt and archiving of messages in the MessageWatcher archive. Unless otherwise scheduled between the parties in advance, MessageWatcher will be available to assist with Configuration during Business Hours. Customer, to the extent of its control, shall be responsible and liable for any and all access to and use of the Services by Customer’s Users. Accordingly, Customer must determine, through each Administrative User, the appropriate access rights in connection with the Services, the Accounts and its Users.
User Accounts and Passwords. Customer understands and acknowledges that MessageWatcher is not responsible for maintaining Accounts and Passwords of Users. The Administrative User(s) of Customer have full privileges to the online MessageWatcher system to directly manage Customer’s Users. Accordingly, it is the policy of MessageWatcher to not provide Accounts and Passwords of Users to a Person, unless Customer has previously authorized MessageWatcher with instructions detailing and directing the terms under which MessageWatcher is able to provide Accounts and Passwords to Users. Customer agrees that MessageWatcher may, pursuant to a Customer Instruction, rely on a Person requesting the Account or Password from MessageWatcher without incurring any liability. Customer, to the extent of its control, agrees to be solely responsible for: (a) maintaining the confidentiality and security of Customer access information, such as Accounts and Passwords and other account identifiers which Customer chooses or is assigned; and (b) all activities that occur under such Accounts and Passwords in connection with the Services. Customer and MessageWatcher agree to take commercially reasonable precautions to ensure that the Passwords in their respective access and control are never disclosed, accidentally or otherwise. MessageWatcher shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, Customer’s failure to comply with this Section.
Administrative User. Subject to Section 4.2, Customer agrees that each Administrative User will have principal responsibility for all Customer Instructions. For security purposes, each Administrative User is required to be appointed and removed (as applicable) via the MessageWatcher User tab or via an email to [email protected] Customer acknowledges that Customer Instructions are final until withdrawn, that MessageWatcher is entitled to rely on any Customer Instruction until and unless withdrawn, and that any withdrawal must be communicated in writing.
Assigned Administrative Privileges. Each Administrative User has the ability, at the sole discretion of Customer, to assign its administrative privileges under the Administrative Account to other Accounts or Users. Given the ability to assign these privileges, Customer agrees that MessageWatcher may rely on a Person requesting support or access to the Services or to any Account pursuant to a Customer Instruction. In no event will MessageWatcher be liable to Customer or any third party for reliance by MessageWatcher on a Customer Instruction.
Decline to Act. For security purposes, MessageWatcher may, at its reasonable discretion, decline to act on a Customer Instruction until it is able, through reasonable and prompt means, to verify a Customer Instruction or the validity of the Administrative User. So long as MessageWatcher acts in good faith, MessageWatcher will not incur any liability by reason of acting or failing to act in respect of a Customer Instruction or Administrative User.
Instant Messages, Text messages, Social Networks, Websites and Email Services. This Section applies when Customer is using MessageWatcher’s Archive Services for capture of public or enterprise instant messaging (IM), text messaging, websites or social networks, or is using MessageWatcher hosted email, email continuity, or email filtering service(s) (“Email Services”):<
Availability of IM, Text Messages, Websites, Social Networks, and Third-Party Email. Customer understands that MessageWatcher cannot guarantee the availability or performance of any third party email hosting, public, consumer or private instant message network, social network or service, including but not limited to Emerald Connect, GoDaddy, AdvisorSites, AIM, Yahoo!, MSN, Skype, GoogleTalk, Actiance, Bloomberg, Thomson Reuters, ICE Chat (YellowJacket), Pivot (CME), OCS/Lync, CiscoWebex, BlackBerry, LivePerson, OpenFire, Adium, Chatter, Yammer, ePulse, Omnipod, LinkedIn, Twitter and Facebook (collectively, “Third Party Networks”). Such Third-Party Networks may change their formats, APIs, delivery methods and posting times without notice to MessageWatcher, or may have inaccuracies in format schemas, corruptions or other changes. Accordingly, MessageWatcher and its Partners expressly disclaim any and all liability relating to, connected with, or arising from Third Party Networks including any outages, schema changes, version changes, delivery delays, failures, corruptions, discontinued services or termination of service. Additionally, Customer is responsible to ensure its end Users only use versions of the applicable Third-Party Network clients that are expressly supported by MessageWatcher Archive. Customer may contact MessageWatcher Support to confirm an updated list of supported Third Party Networks.
Security Procedures. MessageWatcher will maintain electronic and physical security procedures to reasonably guard against accidental, unauthorized or unlawful access, destruction, use, alteration, modification, disclosure or loss of Archived Data and shall include firewalls or other online security infrastructure with any servers used in providing the Services and the internet, such procedures shall be in line with commercially reasonable industry standards.
Security Breaches. Notwithstanding the provisions of this Agreement, MessageWatcher reserves the right, in the event of the detection of suspicious activity or other security issues whatsoever, including a disaster that impacts internet security infrastructure or transmissions in a manner which may cause undue risk to MessageWatcher, Customer, or Archived Data, to temporarily suspend Customer’s access to any of the Services as is necessary. During any such suspension, MessageWatcher will use commercially reasonable efforts to resolve and mitigate the risk and resume Customer’s use of the Services and access to the Archived Data as soon as possible and will use commercially reasonable efforts to ensure the integrity of the Archived Data. Any such suspensions will only be in effect during and no longer than a period equal to the time necessary to eliminate risk to MessageWatcher Services and the Archived Data.
Archived Data & MessageWatcher Archive
Ownership and Control of Archived Data. MessageWatcher acknowledges that any Data of Customer that has been imported and preserved in MessageWatcher Archive (“Archived Data”) is proprietary to and exclusively owned by Customer. Nothing in this Agreement grants MessageWatcher any right or interest in or to any Archived Data. Customer’s Archived Data is managed and controlled via the actions of Customer and Customer’s Users, accordingly, to the extent of its control, Customer is responsible for the Archived Data it stores in the MessageWatcher archive.
Access to Archived Data. Customer has online access via any secure web browser to its Archived Data for the Contract Term unless Customer is in default due to non-payment or other violation of this agreement. For audit and eDiscovery purposes, search and review tools are available for use by Customer’s authorized Users, or may be used by Customer to facilitate authorized online access to Archived Data for an external auditor, attorney or other third-party expert.
Archive Data Capture. The MessageWatcher Archive is designed to capture and archive incoming, internal, outgoing or a combination of those electronic communications of Customer. Customer expressly agrees that it is the responsibility of Customer to ensure that: a) MessageWatcher is fully notified of all email domains and other types of electronic communications required by Customer to be archived; b) MessageWatcher is provided an accurate list of Customer’s Users and User aliases, as applicable, as well as updates to this list or lists; c) all electronic communications of Customer required to be archived are properly formatted and forwarded to MessageWatcher Archive; d) any historical data of Customer that is to be imported to MessageWatcher Archive (“Legacy Data”) is provided to MessageWatcher in an industry standard format which has been tested and verified by MessageWatcher as supportable by MessageWatcher Archive; and e) Customer verifies with MessageWatcher that the message types, versions, formats and Third Party Networks that it requires to be archived, are in fact supported by MessageWatcher Archive. MessageWatcher shall not be liable to Customer for any message types, versions, formats or Third-Party Networks that are not supported, or not technically able to be captured or ingested by MessageWatcher Archive for reasons beyond the control of MessageWatcher.
Monitoring Message Flow. Customer is responsible to monitor its delivery of each message type to the MessageWatcher Archive. MessageWatcher will generate a daily email to Customer that notifies Customer of MessageWatcher’s lack of connection to the customer email system. It is the responsibility of Customer to review and reconcile these reports, and Customer will notify MessageWatcher of any mail flow issues, anomalies or delivery failures. Customer shall also notify MessageWatcher of any changes, transfers, upgrades, patches, or maintenance to Customer’s servers or message traffic flow which will result in an outage, disablement of journaling or other disruption of message traffic flow by Customer, and Customer shall ensure that no messages are transmitted through its email/IM server(s) or otherwise until Customer’s upgrade, patch, or maintenance is complete, and that journaling or message flow is enabled again by Customer or Customer’s third party vendors.
MESSAGEWATCHER IS COMMITTED TO MAKING COMMERCIALLY REASONABLE EFFORTS TO PROVIDE CUSTOMER WITH ACCESS TO THE SERVICES AND TO ENSURE A HIGH LEVEL OF SERVICE AVAILABILITY, SECURITY AND REDUNDANCY, SUBJECT TO CUSTOMER’S AND CUSTOMER’S THIRD-PARTY VENDORS’ COOPERATION AND COMPLIANCE WITH THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, TEMPORARY UNAVAILABILITY OF THE SERVICES MAY OCCUR AS A RESULT OF SOFTWARE RELEASES, SYSTEM UPGRADES, SCHEDULED MAINTENANCE, HARDWARE CHANGES, HARDWARE ADDITIONS, SECURITY ISSUES OR CONNECTIVITY ISSUES. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT CUSTOMER’S USE OF THE SERVICES IS AT ITS SOLE RISK. THE SERVICES ARE PROVIDED BY MESSAGEWATCHER, AND ACCEPTED BY CUSTOMER, ON AN “AS IS” AND “AS AVAILABLE” BASIS. MESSAGEWATCHER AND ITS SUPPLIERS AND PARTNERS, TO THE FULLEST EXTENT PERMITTED BY LAW, OTHERWISE DISCLAIM ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT OF PROPRIETARY OR THIRD-PARTY RIGHTS, OR ABOUT THE ACCURACY, SECURITY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ITS SERVICES, SOFTWARE, OR CONTENT. FURTHER, NOTWITHSTANDING THE FOREGOING, MESSAGEWATCHER DOES NOT WARRANT THAT THE SERVICES ARE ERROR FREE. HOWEVER, MESSAGEWATCHER AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO ADDRESS AND/OR CORRECT ANY ERRORS, MALFUNCTIONS REPORTED BY CUSTOMER AND CUSTOMER CONCERNS DURING THE TERM OF THIS AGREEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM MESSAGEWATCHER OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER’S DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS SYSTEMS OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
Confidentiality & Non-Disclosure
Confidential Information. The parties to this Agreement will not use any Confidential Information (which term shall include Archived Data, as well as the terms of this Agreement) obtained from the other party for its own benefit or for any purpose other than as intended by the parties under this Agreement. The parties further agree that neither will use the Services or any Confidential Information of the other to provide Confidential Information to any third party nor to compete with the other party in its business.
Neither party will use any of the other party’s Confidential Information for any purpose except to fulfill its respective obligations under this Agreement, and shall not disclose Confidential Information to any Person or third party provider except to its representatives who need to know the information for purposes of this Agreement or the Services, or except where disclosure is required or authorized by law or requested or required by administrative process or proceeding or governmental/regulatory authority (including any self-regulatory organization having jurisdiction or claiming to have jurisdiction over the receiving party)(”Legal Process“), or with prior written consent of the other party. In the event that a party is legally compelled under Legal Process, through whatever means, to provide access to the Archived Data or other Confidential Information, then the disclosing party undertakes, to the extent legally permissible, to provide the other party with notice of such an event as promptly as is reasonably practicable, so as to afford the other party the opportunity to limit, monitor, control or prevent the disclosure, unless the disclosing party is requested during an inspection, investigation or examination, or is otherwise prohibited by law, from providing notice to the other party. Customer is responsible for all costs associated with any legally compelled disclosure of its Archived Data. Nothing in this Agreement shall cause a party to fail to honor or comply with any Legal Process on a timely basis.
MessageWatcher has the right to refer to Customer, directly and indirectly, in marketing materials, case studies and on MessageWatcher’s website to indicate that Customer uses the Services and for general information and marketing purposes regarding MessageWatcher’s customer base. MessageWatcher shall not issue any press release announcing the engagement or use by Customer of the Services without the express prior written consent of Customer. Any press release or case study shall be subject to the review and prior written approval of both parties and this approval shall not be unreasonably delayed or withheld.
Customer releases MessageWatcher from and agrees to defend, indemnify, and hold harmless MessageWatcher, its Affiliates, officers, directors, employees, agents and Partners from and against any claims, actions, suits, demands, proceedings (collectively “Claims”) and damages, liabilities, obligations, costs or expenses, including without limitation, reasonable legal fees (collectively “Damages”), in any way directly or indirectly connected with, arising out of or resulting from Customer’s: (a) breach of this Agreement, , (b) negligent or wrongful use of the Services or (c) combination of the Services with other products, processes, or material not provided or approved in writing by MessageWatcher, whether or not due to any act, error, omission or negligence by MessageWatcher or any of its affiliates, owners, officers, directors, employees, agents or others for whom it is responsible.
Limitation of Liability
No Liability for Loss. Notwithstanding any other provision of this Agreement, or any other related agreements, in no event shall either party be liable to the other party, its clients, or any other party (any of which, a “Person”) in relation to or under this Agreement for any Claims or Damages for any special, direct, indirect, incidental, consequential, or punitive damages (including loss of use, loss of production, loss of profits or revenues, loss of markets, economic loss, loss of good will, exemplary loss, anticipated or otherwise), that may be suffered or incurred by any Person, resulting from any matter under or relating to this Agreement or the use of, inability to use or access, or performance of any of the Services, and notwithstanding that such party may have been advised of the possibility of any such Claims or Damages and regardless of whether any of the foregoing is determined to constitute a fundamental breach or failure of essential purpose.
Notwithstanding any other provision of this Agreement, the total monetary liability of each party to the other in respect of all Claims and Damages for any matter relating to the Services or this Agreement, whether in contract or tort or under any other theory of liability, including without limitation for any breach of or default under this Agreement or any misrepresentation or negligence, in the aggregate, shall not exceed the amount of Fees Customer has paid to MessageWatcher under this Agreement in the three months preceding the Claim. This limit is cumulative and the existence of more than one Claim will not enlarge the limit. The parties acknowledge that these limitations of liability and the allocation of risk, including waiver of consequential damages, are an essential element of the bargain between the parties and part of the consideration for the agreed upon Prices and Fees, and in their absence the Prices and Fees and this Agreement would be substantially different.
Term, Suspension and Termination
This Agreement will commence on the Effective Date. This Agreement will continue in effect, together with any subsequent renewals, revisions, new Orders, Statements of Work or Change Orders until terminated pursuant to this Section, unless otherwise agreed by the parties in writing. The Pricing Addendum and Order Forms sets out the initial Contract Term (the “Initial Term”). At the expiration of the Initial Term, the Pricing Addendum or Order Form (including any applicable Change Orders) shall be automatically renewed annually for the number of years specified in the Initial Term or for one year, whichever is greater, (“Renewal Term”), unless terminated by written Notice by either party at least 60 days prior to the expiration date of the Initial Term or Renewal Term (as the case may be), or the parties otherwise negotiate terms of a new Pricing Addendum, Order Form, or Statement of Work.
Without limiting other remedies, MessageWatcher reserves the right to suspend any and all of Customer’s Services if Customer is in material breach or default in performance of its obligations under this Agreement or has otherwise violated this Agreement, if the reason for that breach, default or violation is not remedied to MessageWatcher’s reasonable satisfaction within 30 days following Customer’s receipt of written Notice of (i) the breach, default or violation, or (ii) non-payment. The duty is that of the Customer to resolve or cure the specific concerns to MessageWatcher’s (and to Partner’s, if applicable) reasonable satisfaction prior to the Services being reinstated. MessageWatcher will not be liable to Customer for any suspension in accordance with this Section. Fees will continue to apply and accrue during any suspension of the Services by MessageWatcher.
Subject to the provisions of this Section and proper Notice to MessageWatcher Legal or Customer’s Contact, as applicable, upon termination of the Services by either party, all rights under this Agreement and the provision of Services will terminate in accordance with this Agreement. If Customer is using MessageWatcher Archive Services, this includes termination of all access to MessageWatcher Archive. Continued use by Customer of the Services beyond the date of termination will result in a continuation of Fees in accordance with this Agreement. Neither party will be liable to the other for any termination of the Services in accordance with this Agreement and the following terms:
Termination by Customer. Customer may terminate this Agreement (i) at the expiration of the Contract Term or current Renewal Term (as the case may be) stated in the Pricing Addendum or Order Form; or (ii) upon MessageWatcher’s material breach or default in performing its material obligations under this Agreement, if the reason for that breach or default is not remedied within 60 days following MessageWatcher’s receipt of written Notice of such breach or default. In the case where there is not a Pricing Addendum or Order Form with a defined Contract Term, Customer may terminate this Agreement upon 120 days’ Notice. For termination due to material breach by MessageWatcher, Customer will not be charged for all Fees owed by Customer for the remainder of the Contract Term (or remainder of the Billing Cycle if the Contract Term is not defined). In no event shall any termination relieve Customer of the obligation to pay any Fees payable to MessageWatcher for the period prior to the effective date of termination.
Termination by MessageWatcher. MessageWatcher may terminate this Agreement (i) at the expiration of the Contract Term or current Renewal Term (as the case may be) stated in the Pricing Addendum or Order Form; or (ii) where Customer has been suspended pursuant to Section 13.2, or upon Customer’s material breach or default in performing its material obligations under this Agreement, if the reason for that suspension, breach or default is not remedied within 60 days following such suspension or Customer’s receipt of written Notice of such breach or default (as applicable).
Termination on Bankruptcy. This Agreement shall terminate upon Notice with proof of the dissolution or bankruptcy of either party where (a) a party is declared insolvent or adjudged bankrupt by a court of competent jurisdiction or makes an assignment for the benefit of creditors; or (b) if a petition in bankruptcy or reorganization or an arrangement with creditors is filed by or against that party and is not dismissed within 60 days. Upon such termination, Customer will be charged for all Fees owed by Customer up to the date of termination, provided that, if Customer directs MessageWatcher to continue to preserve its Archived Data, the Fees for Services set forth in the Pricing Addendum or Order Form will continue to apply.
Return or Deletion of Archived Data. Customer has the ability to export up to 4 GBs per day from their archive which should allow the Customer to export their entire archive for free. If at any time, including up to 15 days following the effective termination of MessageWatcher Archive Services, Customer may request by written direction the return of a copy of its Archived Data stored by Customer in the MessageWatcher Archive for a fee as set forth in the Pricing Addendum or Order Form, or otherwise at MessageWatcher’s standard rates, currently $20 per GB exported, based on the digital media and format requested and amount of Archived Data to be returned. The price will not be below $500, unless expressly stated in the Pricing Addendum or Order Form, to provide a copy of the Archived Data. Alternatively, Customer may engage MessageWatcher to preserve a Static Archive of existing Archived Data with online access for Administrator(s) for fees as set forth in the Pricing Addendum, Order Form, or for a negotiated price, or may instruct MessageWatcher to delete the Archived Data upon written Direction to MessageWatcher. If MessageWatcher does not receive written direction from Customer requesting the return of a copy of its Archived Data prior to the expiration of the 45 days following the effective termination (the “Abandonment Date”), then Customer is hereby put on notice that MessageWatcher may, without liability to Customer, delete all Customer’s Archived Data after the Abandonment Date. Notwithstanding any of the above, MessageWatcher will not be liable to Customer with respect to Customer’s Archived Data that remains in MessageWatcher Archive after the Abandonment Date.
This Section and any other provisions of this Agreement that by their nature should survive termination of this Agreement shall survive termination.
Relationship of the Parties. Customer acknowledges that MessageWatcher, as a service provider, is an independent contractor, and the parties agree that no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Neither party shall have any authority to act for, bind, make any representations or warranties, or assume any obligation or responsibility, express or implied, on behalf of the other party, except as specifically authorized under this Agreement or by written direction of the other party. Each party is solely responsible for all expenses associated with its performance under this Agreement. Nothing in this Agreement shall restrict in any way the freedom of either party to conduct as it sees fit any other business or activity whatsoever.
Either party may assign this Agreement to an Affiliate or successor entity upon 30 days’ Notice to the other party.
Notices and Communications. All Notices and Customer Instructions required or provided by way of this Agreement shall be in writing and shall be deemed to have been given when delivered (with proof of successful delivery) via: (i) email (with confirmation of receipt), (ii) mail (registered or certified, postage prepaid with receipt requested), (iii) courier, or (iv) personally. With respect to Notice via email, each party may rely on Customer Instructions and Notices as if the sender, on behalf of the party, had given them signed and in writing. Any Notice delivered to MessageWatcher or Customer shall be sent to the following contacts, as appropriate, depending on the subject matter of the Notice: 18.1. With respect to Notice via email, MessageWatcher may rely on Customer Instructions and Notices as if the sender, on behalf of Customer, had given them signed and in writing. Any Notice delivered via email shall be sent to the following contact: [email protected]
7900 E. Union Avenue, Suite 1100
Denver, CO 80237
To Customer: The address set forth on the Pricing Addendum or Order Form or provided by Customer.
Force Majeure. Neither party will be in default of this Agreement nor be liable in damages nor have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by a Force Majeure; provided that, as a condition to the claim of non-liability, the party whose performance is affected will provide the other party prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
Entire Agreement. This Agreement, including the Services Terms & Conditions, the Pricing Addendum, the Order Form, the Appointment of Administrator, and including any and all schedules or policies referred to in this Agreement, constitute the entire understanding and agreement between the parties relating to the subject matter hereof and supersedes any and all prior agreements, correspondence, understandings and discussions, whether written or oral, relative to the subject matter contained herein. In the event of any inconsistencies between these Services Terms & Conditions and the Pricing Addendum, the most recent Pricing Addendum or Order Form will prevail. In the event of any inconsistency between the Policies listed and either these Services Terms & Conditions or the Pricing Addendum or Order Form, the Order Form and the Services Terms & Conditions will prevail.
Customer acknowledges, accepts and agrees that the Services provided to Customer pursuant to this Agreement are also subject to the following policies, incorporated by these references below and available from MessageWatcher.
Severability and Non-waiver. If any part of this Agreement is found to be invalid, all other parts of this Agreement remain enforceable. Either party’s failure to act with respect to a breach or default by the other party does not waive the non-defaulting party’s right to act with respect to subsequent or similar breaches or defaults.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws applicable in the State of Colorado are applicable therein, excluding that body of law governing conflict of laws.
Customer understands and agrees that, to the extent permitted by law, all claims arising out of this Agreement will be resolved through arbitration.In this regard, Customer and MessageWatcher further understand and agree that:
Arbitration is final and binding on the parties;
The parties are waiving their rights to seek remedies in court, including the right to jury trial;
Pre-arbitration discovery is generally more limited than and different from court proceedings;
The arbitrator’s award is not required to include factual findings or legal reasoning and any party’s right to appeal or seek modification of rulings by the arbitrator is strictly limited; and
Such arbitration will be conducted according to the arbitration rules then in effect of the American Arbitration Association.Either Party may initiate arbitration by serving or mailing a written notice to the other parties hereto by certified mail, return receipt requested. Any award the arbitration panel makes will be final, and judgment on it may be entered in any court having jurisdiction. This arbitration provision shall be enforced and interpreted exclusively in accordance with applicable Federal law, including the Federal Arbitration Act.
Legal Fees. Parties agree to request that the Arbitrator determine the prevailing party on a claim-by-claim basis and in determining who is the prevailing party, allocate legal fees and costs on an equitable basis considering the complexity of the claims and the amount of damages awarded, and limit the dollar amount that can be awarded to the prevailing party to the lower of $5,000 or actual damages awarded on its claims.
All amounts, Prices and Fees are in United States Dollars (USD), unless otherwise indicated.
Non-Solicitation. During the Term of this Agreement and for a period of six months after the end of last Term, Customer will not, directly or indirectly, (i) employ or hire any person who is at the time in question, or who was at any time during the immediately preceding six months, employed by MessageWatcher or (ii) cause, invite, solicit, entice or induce any person who is at the time in question, or who was at any time during the immediately preceding six months, employed by MessageWatcher, to terminate such person’s employment with MessageWatcher, unless expressly consented to in writing by MessageWatcher in each case.
Electronic Signatures and Contracts. Customer’s use of the Services includes the ability to enable Customer’s Administrative User(s) to: (i) electronically enter into agreements via MessageWatcher’s website, digital signature or email, (ii) make Change Orders to the Services via email, and (iii) request Professional Services. Customer acknowledges such electronic submissions by Customer’s Administrative User(s) constitutes Customer’s agreement and intent to be bound by the same and to pay for such Services, Change Orders, Statements of Work, agreements and purchases.
Accepted Terms. The Pricing Addendum or Order Form, incorporating by reference these Service Terms & Conditions, will be executed by Customer unless otherwise agreed to be executed by email transmission of an image file format document or otherwise, each of which shall be deemed an original, but all of which together shall constitute one and the same document.
Any questions relating to the Services Terms & Conditions or other information may be directed to [email protected]
Pricing Addendum OR Order Form– provided separately
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