FORM OF EULA
Attached is a sample end user license agreement resellers may use, which Tucows
considers satisfactory. While this form is not mandatory, the reseller is obligated by
its reseller agreement with Tucows, to have an end user license agreement with its
customers which is NO LESS protective of Tucows than the following document.
In consideration of the mutual promises herein, the receipt and sufficiency of which are
hereby acknowledged, th parties agree as follows:
1. TERMS OF SERVICE
Outer-Net Technology Inc. (“Service Provider”) provides its email services
to the end user (“you”, “your”), subject to the terms of service set out in this
agreement ("TOS"), which may be updated by us from time to time without notice
to you. You can review the most current version of the TOS at any time at:
<<insert appropriate URL>>. In addition, when using particular Service Provider
services, you are subject to any posted guidelines or rules applicable to such
services, which may be posted from time to time. All such guidelines or rules are
hereby incorporated by reference into the TOS.
2. DESCRIPTION OF SERVICE
(a) Your payment obligations with regard to the Service are as set out in your
subscription application.
(b) Service Provider currently provides users with access to the email service
with the functionality described in your subscription application (the
"Service"). Unless explicitly stated otherwise, any new features that
augment or enhance the current Service shall be subject to the TOS. You
understand and agree that neither Service Provider nor its suppliers
assume responsibility for the timeliness, deletion, mis-delivery, nondelivery
or failure to store or accurately store, any user communications,
addresses or personalization settings.
(c) You are responsible for obtaining access to the Service and that access
may involve fees to Service Provider or third party fees (such as Internet
service provider or airtime charges).
(d) You must provide and are responsible for all equipment necessary to
access the Service.
3. CERTAIN SUBSCRIPTION OBLIGATIONS
You agree to: (a) provide true, accurate, current and complete information about
yourself as prompted by the Service's subscription form ("Subscription Data");
and (b) promptly update the Subscription Data to keep it true, accurate, current
and complete. If you provide any information that is untrue, inaccurate, not
current or incomplete, or Service Provider or its suppliers have reasonable
grounds to suspect this, Service Provider or its suppliers have the right to suspend
or terminate your account and refuse any and all current or future use of the
Service (or any portion thereof), including any transition rights.
Service Provider is concerned about the safety and privacy of all its users,
particularly minors. For this reason, if you wish to allow anyone else access to
the Service, you should assist them in setting up any relevant accounts and
supervise their access to the Service. Allowing anyone access, means s/he will be
able to access all components of the Service. As the subscriber, it is your
responsibility to determine whether any of the Services and/or Content (as defined
in Section 6 below), which may be delivered to you, are appropriate for any
person to whom you allow access.
4. SERVICE PROVIDER PRIVACY POLICY
Subscription Data and certain other information about you is subject to our
Privacy Policy attached as Exhibit 1.
5. MEMBER ACCOUNT, PASSWORD AND SECURITY
You may receive a password and account designation upon completing the
Service's subscription process. You are responsible for maintaining their
confidentiality, and for all activities that occur under your password or account.
You agree to (a) immediately notify Service Provider of any unauthorized use of
your password or account or any other breach of security, and (if applicable); and
(b) exit from your account at the end of each session. Service Provider, and its
suppliers, cannot and will not be liable for any loss or damage arising from your
failure to comply with this Section 5.
6. MEMBER CONDUCT
All information, data, text, software, music, sound, photographs, graphics, video,
messages or other materials ("Content"), transmitted over the Service, by you or
others using your account are your responsibility. You, and not Service Provider,
are entirely responsible for all Content that you, or others to whom you provide
access, send, post, or otherwise make available via the Service. Service Provider
does not control the Content made available via the Service and, as such, does not
guarantee the accuracy, integrity, quality or appropriateness of such Content for
any particular viewer. By using the Service, you may be exposed to Content that
is offensive, indecent or objectionable, including spam, or which may contain
viruses, and other destructive elements. Under no circumstances will Service
Provider or its suppliers be liable in any way for any Content, including, but not
limited to, for any errors or omissions in any Content, or for any loss or damage
of any kind incurred as a result of the use or viewing of any Content posted,
emailed, transmitted or otherwise made available via the Service.
You agree to not use (or permit others to use) the Service to:
(a) send, post, email, transmit or otherwise make available (collectively
“send”) any Content that is unlawful, harmful, threatening, abusive,
harassing, tortious, defamatory, vulgar, obscene, libellous, invasive of
another's privacy, hateful, or racially, ethnically or otherwise
objectionable;
(b) harm minors in any way;
(c) impersonate any person or entity, or falsely state or otherwise
misrepresent your affiliation with a person or entity;
(d) forge headers or otherwise manipulate identifiers in order to disguise the
origin of any Content transmitted through the Service;
(e) send any Content that you do not have a right to make available under any
law or under contractual or fiduciary relationships (such as, without
limitation, inside information, proprietary and confidential information);
(f) send any Content that infringes any patent, trademark, trade secret,
copyright or other proprietary rights ("Rights") of any party;
(g) send any unsolicited or unauthorized advertising, promotional materials,
"junk mail," "spam," "chain letters," "pyramid schemes," or any other
form of unauthorized solicitation, or otherwise violate our abuse policy
attached as Schedule B;
(h) send any material that contains software viruses, worms or any other
computer code, files or programs designed to interrupt, destroy or limit the
functionality of any computer software or hardware or
telecommunications equipment;
(i) interfere with or disrupt the Service or servers or networks connected to
the Service, or disobey any requirements, procedures, policies or
regulations of networks connected to the Service;
(j) intentionally or unintentionally violate any applicable local, provincial,
state, national or international law, including, but not limited to, rules,
orders and regulations having the force of law;
(k) violate applicable laws regarding transmission of technical data exported
from the country in which you reside;
(l) take any action that imposes an unreasonable or disproporionately large
load on the Service Provider or its suppliers; or
(m) "stalk" or otherwise harass another.
You agree Service Provider and its suppliers do not, and Service Provider agrees
it, and its suppliers, shall not without cause, pre-screen Content, but shall have the
right (but not the obligation) in their sole discretion to refuse or move any Content
that is available via the Service, including without limitation any Content that
violates the TOS or is otherwise objectionable. You agree to evaluate, and bear
all risks associated with, the use of any Content, including any reliance on the
accuracy, completeness, or usefulness of such Content, and acknowledge that you
may not rely on any Content created by, or submitted to, Service Provider.
You agree Service Provider (or its suppliers) may preserve and disclose Content
if required to do so by law or in the good faith belief that such preservation or
disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce
the TOS; (c) respond to claims that any Content violates the rights of thirdparties;
or (d) protect the rights, property, or personal safety of Service Provider,
its users and the public.
You understand that the technical processing and transmission of the Service, including
your Content, may involve (a) transmissions over various networks; and (b) changes to
conform and adapt to technical requirements of connecting networks or devices.
7. INDEMNITY
You agree to indemnify and hold Service Provider, and its suppliers, and Service
Provider’s and its suppliers’ affiliates, officers, agents, co-branders or other
partners, and employees, harmless from any claim or demand, including
reasonable legal fees, made by any third party due to or arising out of Content you
submit, post, transmit or make available through the Service, your use of the
Service, your connection to the Service, your violation of the TOS, or your
violation of any rights of another.
8. GENERAL PRACTICES REGARDING USE, STORAGE AND SERVICE
MODIFICATION
You agree that Service Provider or its suppliers: a) may establish general practices
and limits concerning use of the Service, including without limitation, the
maximum number of email messages that may be sent from or received by an
account on the Service, the maximum size of any email message that may be sent
from or received by an account on the Service, and the maximum number of times
(and the maximum duration for which) you may access the Service in a given
period of time; b) have no responsibility or liability for the deletion or failure to
store any messages and other communications or other Content maintained or
transmitted by the Service; c) reserve the right to log off accounts that are inactive
for an extended period of time; d) reserve the right to change these general
practices and limits at any time, in its or their sole discretion, with or without
notice; e) reserve the right at any time and from time to time to modify,
temporarily or permanently, the Service (or any part thereof) with or without
notice; f) may supply any or all of the Software or Service on its own behalf, or as
a sublicensor or reseller on behalf of a third party supplier, and may substitute
such third party suppliers without notice; g) may quarantine suspected messages;
h) may modify any domain and user settings with or without notice, including
without limitation, altering settings so that spam or bulk email is denied, rather
than being quarantined, to avoid space capacity issues which jeopardize the
technical or economic viability of the services offered, or the system used to
implement the services; i) will not permit open relay(ie third party relay of email
messages); shall not be liable to you or to any third party for any modification,
suspension or discontinuance of the Service which may occur for routine
maintenance, routine or extraordinary repairs, or the need to respond to a virus or
other attack on the system or using the system.
9. TERMINATION AND SUSPENSION
You agree that Service Provider, in its sole discretion, may (or may instruct its
suppliers to), suspend or terminate your password, account (or any part thereof) or
use of the Service, remove and discard any Content within the Service, deactivate
or delete your account and all related information and files in your account and/or
bar any further access to such files or the Service, discontinue providing the
Service, or any part thereof, with or without notice if Service Provider believes
that you have violated or acted inconsistently with the letter or spirit of the TOS,
and have not either cured the breach (if curable) or provided a satisfactory
undertaking to Service Provider or the applicable authorities, within five (5)
business days of receiving a notification of the breach, or for maintenance
purposes. Further, you agree that Service Provider shall not be liable to you or any
third-party for any termination or suspension of your access to the Service.
10. DEALINGS WITH THIRD PARTIES
Your interaction with third parties, including (without limitation): participation in
promotions of, advertisers found on or through the Service, payment and delivery
of goods or services, and any other terms, conditions, warranties or
representations associated with such dealings, are solely between you and such
third parties, and that Service Provider and its suppliers shall not be responsible or
liable for any loss or damage of any sort incurred as the result of any such
dealings or the presence of such third parties on the Service.
11. SERVICE PROVIDER'S PROPRIETARY RIGHTS
You agree the Service and any necessary software used in connection with it
("Software" contain proprietary and confidential information protected by
applicable intellectual property and other laws, including but not limited to
copyright, and trade and service mark protections, and is owned by Service
Provider or its suppliers. Service Provider grants you a personal, nontransferable
and non-exclusive right and license to use the object code of its
Software on a single computer, provided you do not (and do not allow any third
party to) reverse engineer, reverse assemble or otherwise attempt to discover any
source code, sell, assign, sublicense, grant a security interest in or otherwise
transfer any right in the Software or Service, copy, modify, rent, lease, loan, sell,
distribute, or create derivative works of or based on, the Service or the Software,
in whole or in part, or use modified versions of the Software, including (without
limitation) to obtain unauthorized access to the Service. You agree not to access
the Service by any means other than through the interfaces provided by or through
Service Provider for use in accessing the Service.
12. DISCLAIMER OF WARRANTIES, REPRESENTATIONS AND
CONDITIONS
(a) YOU EXPRESSLY UNDERSTAND AND AGREE THAT: YOUR USE
OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS
PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
SERVICE PROVIDER AND ITS SUPPLIERS EXPRESSLY DISCLAIM
ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES
AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED
WARRANTIES, REPRESENTATIONS AND CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NON-INFRINGEMENT.
(b) SERVICE PROVIDER AND ITS SUPPLIERS MAKE NO WARRANTY
THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, OR
BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (ii)
THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF
THE SERVICE WILL BE ACCURATE OR RELIABLE, (iii) THE
QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR
OTHER MATERIAL PURCHASED OR OBTAINED BY YOU
THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS,
AND (iv) ANY ERRORS IN THE SERVICE OR SOFTWARE WILL BE
CORRECTED.
(c) ANY MATERIAL TRANSMITTED, RECEIVED, DOWNLOADED OR
OTHERWISE OBTAINED OR SENT, THROUGH THE USE OF THE
SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND
THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE
TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT
RESULTS FROM THE OPENING, DOWNLOAD OR SENDING OF
ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN,
OBTAINED BY YOU FROM SERVICE PROVIDER OR ITS
SUPPLIERS OR THROUGH OR FROM THE SERVICE SHALL
CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE
TOS.
(e) YOU ACKNOWLEDGE THAT: A) AS VIRUSES ARE FREQUENTLY
CREATED AND DISTRIBUTED, THE ANTIVIRUS COMPONENT OF
THE SERVICE IS INTENDED TO DETECT ONLY SPECIFIC
KNOWN VIRUSES AND SOME UNKNOWN VIRUS BEHAVIOR
PATTERNS. THERE IS NO WARRANTY THAT THE SERVICE WILL
DETECT ALL VIRUSES PRESENT ON OR SENT TO YOUR
COMPUTER SYSTEM, NETWORK OR EMAIL SERVER; YOUR
RESPONSIBILITIES INCLUDE TO ENSURE YOU HAVE
SUFFICIENT BACK-UP SYSTEMS IN PLACE; AND B) AS
PURVEYORS OF SPAM ARE CONSTANTLY SEEKING TO EVADE
SYSTEMS DESIGNED TO BLOCK BULK EMAIL (ALSO KNOWN
AS SPAM OR JUNK EMAIL), AND AS A USER MAY NOT WISH
ALL BULK EMAIL TO BE BLOCKED, THE BULK EMAIL
COMPONENT OF THE EMAIL SERVICE WILL NOT DETECT OR
BLOCK ALL BULK EMAIL, AND MAY ADDITIONALLY BLOCK
EMAIL WHICH YOU DID NOT WISH TO HAVE BLOCKED. THERE
IS NO WARRANTY THAT THE SERVICE WILL BLOCK ALL BULK
EMAIL, OR ONLY BLOCK THE BULK EMAIL YOU DESIRE TO BE
BLOCKED.
13. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT SERVICE
PROVIDER AND ITS SUPPLIERS, SHALL NOT BE LIABLE FOR ANY,
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY
DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS
OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE OR
INTANGIBLE LOSSES (EVEN IF SERVICE PROVIDER OR ITS SUPPLIER
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES),
RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE
SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS
AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION
OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED
OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE
SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR
TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY
THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER
RELATING TO THE SERVICE. LIABILITY FOR DIRECT DAMAGES
SHALL BE LIMITED TO A MAXIMUM OF THE FEES YOU HAVE
ALREADY PAID TO SERVICE PROVIDER FOR THE MONTH IN WHICH
THE EVENT GIVING RISE TO THE LIABILITY OCCURRED.
14. EXCLUSIONS AND LIMITATIONS
Some jurisdictions bar limitation or exclusion of certain warranties,
representations and conditions or the limitation or exclusion of liability for
incidental or consequential damages. Accordingly, some of the above limitations
of this Agreement may not apply to you.
15. NOTICE
Notices to you may be made via email, fax, courier or regular mail. The Service
may also provide notices of changes to the TOS or other matters by displaying
notices or links to notices to you generally on the Service.
16. TRADEMARK INFORMATION
Without Service Provider's prior permission, you agree not to display or use in
any manner, the Service Provider’s or its suppliers’ trademarks or service marks.
17. GENERAL INFORMATION
Your subscription form (e.g. covering your term, method of payment, price etc.)
and this TOS, constitute the entire agreement between you and Service Provider
and govern your use of the Service, superseding any prior agreements between
you and Service Provider related to email services. Additional terms and
conditions may apply when you use other services (such as domain name
registration services), third-party content or software. The TOS and the
relationship between you and Service Provider shall be governed by the laws of
the <<insert the state/province/country of the Service Provider>> without regard
to its conflict of law provisions. You agree to submit to the personal and exclusive
jurisdiction of the courts located within the <<insert the city of the Service
Provider >>. The failure of Service Provider to exercise or enforce any right or
provision of the TOS shall not constitute a waiver of such right or provision. If
any provision of the TOS is found by a court of competent jurisdiction to be
invalid, the parties nevertheless agree that the court should try to give effect to the
parties' intentions as reflected in the provision, and the other provisions of the
TOS remain in full force and effect. You agree that regardless of any statute or
law to the contrary, any claim or cause of action arising out of or related to use of
the Service or the TOS must be filed within one (1) year after such claim or cause
of action arose or be forever barred. The section titles in the TOS and schedules
are for convenience only and have no legal or contractual effect.
Exhibit 1 to EULA – Privacy Policy
Please read the following to learn more about our privacy policy.
What this Privacy Policy Covers
• This Privacy Policy covers Service Provider's treatment of personally identifiable
information that Service Provider collects when you are on the Service Provider
site, register for, or use, the Service, and Service Provider’s review of the Content
you send or receive.
• This policy does not apply to the practices of companies that Service Provider
does not own or control, or to people that Service Provider does not employ or
manage.
(a) Information Collection
• Service Provider collects personally identifiable information when you
register for a Service Provider account.
Information Sharing and Disclosure
• Except as required by law, Service Provider will not sell or rent your
personally identifiable information to anyone without your consent.
• Service Provider will send personally identifiable information about you to
other companies or people when:
• We have your consent to share the information;
• We need to share your information to provide the product or service
you have requested;
• We need to send the information to companies who work on behalf of
Service Provider to provide a product or service to you. (Unless we
tell you differently, these companies do not have any right to use the
personally identifiable information we provide to them beyond what is
necessary to assist us.);
• We respond to subpoenas, court orders or legal process; or
• We find that your actions violate the TOS or any of our usage
guidelines for specific products or services.
(b) Security
• Your Service Provider Account Information is password-protected for
your privacy and security.
• In certain areas Service Provider uses industry-standard SSLencryption
to protect data transmissions.
Changes to this Privacy Policy
• Service Provider may edit this policy from time to time. If we make any
substantial changes we will notify you by posting a prominent announcement on
our pages.
Exhibit 2 to EULA - Abuse Policy
Internet Abuse – Any type of Internet Abuse, including what is commonly referred to
as Spam is strictly forbidden.
Internet Abuse includes, but is not limited to the following:
o Sending a unsolicited chain letter or letters that market a product or
service;
o Sending any unsolicited emailings exceeding twenty-five (25) email
recipients;
o Using the service in any manner so as to harass, threaten, abuse,
embarrass, or cause distress, unwanted attention or discomfort to any
person or entity;
o Using the service in violation of the law, in aid of any unlawful act or to
interfere with the use and operation of our network.
In the event of Internet Abuse event or complaint, the offending email account will be
suspended and the Domain Admin will be notified.
In the event, a second Internet Abuse event or complaint occurs within a period of
thirty (30) days, the entire domain will be suspended and the Domain Admin will be
notified.