THIS IS AN AGREEMENT BETWEEN YOU OR THE ENTITY THAT YOU LEGALLY REPRESENT (hereinafter “You” or “Your”) AND AVERWAY LTD (hereinafter “AVERWAY”) GOVERNING THE RIGHTS AND OBLIGATIONS OF YOU AND AVERWAY IN RELATION TO SOPHIMAIL SOFTWARE AND SERVICES (hereinafter “SOPHIMAIL”) AND ANY RELATED QUOTES, SLAs, PURCHASE ORDERS, DOWNLOADS, CONTRACTS OR OTHER DOCUMENTS BETWEEN YOU AND AVERWAY.
ACCEPTANCE OF TERMS
DESCRIPTION OF SERVICE
PROTECTION OF DATA PRIVACY
“You” means the legal entity whose legal representative or authorized personnel including subcontractors has accessed, downloaded, ordered or used any Software or Services by AVERWAY or an authorized Reseller.
“AVERWAY” means the legal entity with ID No HE353179, VAT number 10353179U, having its registered office at 5, Loutrakiou str., 2027 Strovolos, Nicosia, Cyprus.
“End User(s)” means the personnel authorized by You to access or use SOPHIMAIL
“Administrator(s)” means the person You authorize and designate to administer SOPHIMAIL
“SOPHIMAIL” means collectively all Software and Services made available to You.
“Software” means any software offered by AVERWAY to You as described on the Website, such as SOPHIMAIL EMAIL SERVER, SOPHIMAIL DASHBOARD, as well as any open source components, new releases and editions.
“Trial”, “Evaluation”, “Demo” or “NFR” means the Software or Service that is offered by AVERWAY free of charge, for the purposes of evaluation, demonstration or training. Such software or service is not for sale. AVERWAY owns such Software or Service and may lock them remotely or otherwise prevent further use by You in its own discretion, at any time. AVERWAY shall modify, update, maintain or discontinue provisioning such software or service at its own discretion, at any time. You agree that AVERWAY will not be liable to You or to any third party for any harm related to, arising out of, or caused by the use, modification, suspension or discontinuation of any of such Software or Service for any reason.
“Modified Code” means any development that deviates from the initial Software made available to You by AVERWAY, including any modification, mis-configuration or addition to the original code, code-tree, modules or to the whole integration. Modified Code is not supported or maintained by AVERWAY.
“Third Party Products” means any software or hardware that (i) is manufactured by a party other than AVERWAY and (ii) has not been incorporated into the Software by AVERWAY.
“Services” means the provision of technical services by AVERWAY to You. AVERWAY offers a wide range of Services related to Your corporate messaging and collaboration, as described in www.sophimail.com/services. Such services may be provided to You directly by AVERWAY or by authorized sub-contractors. AVERWAY Services do not cover Modified Code.
“Repository” means the provision of new Releases that apply to the Email Engine Server, aiming to improve it. Repository does not apply to SOPHIMAIL Dashboard. Access to Repository requires payment of the relevant Service Fee and allows you to download the below described release types:
- “Maintenance Release” or “Update,” means a generally available release of the Software that provides maintenance corrections or fixes only, designated by AVERWAY by means of a change in the digit to the right of the second decimal point (e.g. Software 4.0 >> Software 4.0.1).
- “Minor Release” means a generally available release of the Software that (i) introduces a limited number of new features and functionality, and (ii) is designated by AVERWAY by means of a change in the digit to the right of the decimal point (e.g., Software 4.0>>Software 4.1).
- “Major Release” of “Upgrade,” means a generally available release of the Software that (i) contains functional enhancements or extensions, and (ii) is designated by AVERWAY by means of a change in the digit to the left of the first decimal point (e.g., Software 4.0 >> Software 5.0).
“Support Plan” means the set of Support Services purchased by You, in form of annual subscription. AVERWAY offers a variety of Support Plans, as described on the Website, so that You subscribe to the one that best meets Your needs.
“Custom SLA”: means the particular Support Plan that may be designed for a specific Customer to meet his own SLA requirements. Such a plan will be available at an agreed price.
“Severity” is a measure of the impact that an incident (reported in a Service Request) has on the use of the Software, as determined by AVERWAY.
- “Severity-1” or “Severity One” means Your production server or other mission critical system(s) are down and no workaround is immediately available and (i) all or a substantial portion of Your mission critical data is at a significant risk of loss or corruption; or (ii) You has had a substantial loss of service.
- “Severity-2” or “Severity Two” means that major functionality is severely impaired such that: (i) operations can continue in a restricted fashion, although long-term productivity might be adversely affected and a temporary workaround is available; or (ii) a major milestone is at risk, ongoing and incremental installations are affected, and a temporary workaround is available.
- “Severity-3” or “Severity Three” means a partial, non-critical loss of functionality of the Software such as: (i) the operation of some component(s) is impaired but allows the End User to continue using the Software; or (ii) initial installation milestones are at minimal risk.
- “Severity Four” or “Severity-4” means (i) design and aesthetics issues, including typos and (ii) cases opened via email.
“Service Fees” means the fees (excluding any taxes and duties) You will be requested to pay as specified in a corresponding payment invoice issued by AVERWAY or an authorized Reseller, according to the Support Plan or the Advanced Service You have purchased.
“Service Period” means the period for which You have purchased such Services and any subsequent renewal periods. Services Period will commence on the date of purchase of the Services.
“Service Request” means any written request, submitted by You according to and depending on the specific Support Plan or the Advanced Service(s) You have purchased.
“Website” means the internet site at the domain www.sophimail.com and any SOPHIMAIL relevant sites operated by AVERWAY, such as www.sophimail.org.
PROVISIONING OF SERVICES
Service Level Objectives (SLOs). According to the international SLA standards, Service Level Objectives (SLOs) are set to specify the responsiveness of AVERWAY to a Service Request of Yours. Maximum response time varies depending on the severity level of each incident: the highest the severity, the shortest the response time.
Response time SLOs: Response time objectives refer to the maximum response time to a Customer’s Service Request – in other words, it is the time interval between Your initial Service Request, as submitted via SophiMail Ticketing System, and the time of first Response by AVERWAY. Auto-responses generated by the ticketing system do not count as response time.
Severity Level Trial Silver & Gold Platinum Custom SLA
Severity-1 Not Available 2 Business Hours 30′ within Bus. Hours (designed upon
Severity-2 Not Available 4 Business Hours 2 Business Hours Customer’s
Severity-3 Not Available 8 Business Hours 4 Business Hours requirements)
Severity-4 8 Business Hours 8 Business Hours 8 Business Hours
Response time differs from Resolution time. Resolution may require significantly more time than the objective agreed for Response, due to the complexity of technical problems.
Resolution time SLOs: AVERWAY maintains objectives on providing a Resolution and/or Workaround only for Severity-1 or Severity-2 issues. For Severity-1 issues, Resolution or Workaround time objective is four (4) hours after the Initial Response Time. For Severity-2 issues, the target Resolution or Workaround time is one (1) Business Day after the Initial Response Time. To meet these targets, AVERWAY uses commercially reasonable efforts. The capability of meeting these targets may be subject to causes beyond our control, such as third-party products, hardware or services and/or availability of customer resources or personnel to work on such issues.
Access to Services. Access to Support Services is provided through the Website. You may enroll online by clicking the relevant BUY button. You may submit a Ticket online, accessing Your account (login) with your credentials.
Purchase Requirements. You may purchase Support Services only for the latest available release of the Software, unless otherwise provided by AVERWAY. If You have stopped renewing your Maintenance Services but you wish to re-enroll, You must first order a System Checkup, as described in the Advanced Services menu. Depending on the evaluation report, You may be required to upgrade to the latest release of the Software.
Service Fees. You will be required to pay Service Fees in order to purchase a Service, enroll on a Support Plan, or renew or add any Support Services offering.
Service Period: The duration of a Service is described in the relevant menu on the Website. Usually, Support Plans have a Service Period of 1 year.
Support Services Notice. During any Service Period, You will be entitled to: (a) a reasonable notice by AVERWAY regarding discontinuation of Services; and (b) a reasonable notice by AVERWAY as to any material changes to the key features and functionality of the Software, provided that the existing material functionality of the Software will not be lost in any subsequent Updates or Upgrades to the Software, unless made technically necessary by changes to the operating system.
End of Availability. AVERWAY may, at its discretion, decide to retire Software and/or Services (“End of Availability”). AVERWAY will post notice of End of Availability, including the last date of general availability of the relevant Software and the timeline for discontinuing Support Services on the Website. AVERWAY will have no obligation to provide Services for Software that is outside of the applicable Support Services life.
If AVERWAY suspects that a reported problem may be related to Modified Code, AVERWAY may in its sole discretion: (i) request that the Modified Code is removed and/or (ii) inform You that additional assistance may be obtained by You directly from various discussion forums, or by engaging AVERWAY’s consulting services for an additional fee.
YOUR RESPONSIBILITIES, RESTRICTIONS AND LIABILITIES
- violates or by-passes applicable laws and ethics or third party rights,
- affects or may adversely affect or hinder the use of SOPHIMAIL from third parties
- could damage, disable, overburden, impair or harm any server, network, or computer system
- could create a false identity to mislead others, as to the identity or origin of any communication (fraudulent email)
You are not entitled to:
- sell, rent, assign, distribute, publish, provide, transfer SOPHIMAIL or otherwise make it available to any third party, including subsidiaries or associated companies, directly or indirectly, unless clearly otherwise stated by AVERWAY (for example if You subscribed for SOPHIMAIL ISP Edition)
- allow any third party, individual or legal entity (including subsidiaries or associated companies) to benefit directly or indirectly from the use or functionality of SOPHIMAIL
- use the trademarks or distinctive features of SOPHIMAIL, in any way, without written permission by AVERWAY
- use third party links to sites without agreeing to the corresponding terms & conditions
- post links to third party sites or use their logo, company name, etc. without their prior written permission
- copy, modify, create a derivative work of the source code, reverse engineer, decompile, reconstruct, disassemble thereof, or otherwise attempt to extract the source code of SOPHIMAIL and in general of other software programs that support the operation of SOPHIMAIL, unless allowed by the respective software license.
AVERWAY reserves the right to disclose any information at any time, as necessary to satisfy any legal process or governmental request, applicable law or regulation, as well as to remove any posts, information or materials, in whole or in part, at its sole discretion.
Any damage caused to the Website(s) or to SOPHIMAIL in general, resulting from improper use of SOPHIMAIL by You, Your End Users of Your Administrator(s), is Your sole responsibility.
You shall indemnify AVERWAY against claims arising out of or related to: (1) violation of the contract terms by Your, Your End Users or Your Admin(s) and of (2) any claim by a third party as a result of the use SOPHIMAIL by You, Your End Users or Your Admins, but not limited to violating copyright or other rights, regarding data privacy or confidentiality.
AVERWAY reserves the right to discontinue, at any time, accessibility and use of SOPHIMAIL (totally or partially) by You and/or suspend access to Your accounts, if AVERWAY has any evidence that You violated rights of others. Similarly, AVERWAY has the right to set limits on the use of SOPHIMAIL by You, or to take any other measure to ensure the smooth use of SOPHIMAIL by other Customers if You hinder use of SOPHIMAIL by third parties.
Proper Use and Code of Conduct. You are solely responsible for the following:
- for protecting, safe keeping and backing up the Data processed by You, Your End Users and/or Your Administrator(s) against loss of data, in the event of errors or other malfunction of the Software or of the computers on which the Software is used
- for maintaining procedures external to the Software for reconstruction of lost or altered files, data, or programs to the extent necessary and for performing any such reconstruction.
- for obtaining and maintaining appropriate equipment and auxiliary services required to use, access or otherwise connect to the Software, including, without limitation, computers, computer operating systems, data storage, network devices and web browsers.
AVERWAY’s obligations regarding Services are subject to the following:
- You will promptly report to AVERWAY all problems related with the Software and will implement any corrective procedures provided by AVERWAY.
- You will provide AVERWAY an accurate list of contacts (including name, email address and phone number) of those individuals authorized to open Service Requests on Your behalf. These authorized contacts must have the access and authority to administer or configure the Software as required by the nature of the Service Request.
- You shall provide dedicated resources available to work 24X7 on Severity One Service Requests.
- AVERWAY does not provide support directly to the End Users (does not provide 1st level support).
Spamming and other Illegal Activities. You agree to be solely responsible for the contents of your transmissions through SOPHIMAIL. AVERWAY does NOT support sending emails without the user’s consent (spam). You agree not to use the Services for illegal purposes or for the transmission of material that is unlawful, defamatory, harassing, libelous, invasive of others’ privacy, abusive, threatening, harmful, vulgar, pornographic, obscene, or is otherwise objectionable, offends religious sentiments, promotes racism, contains viruses or malicious code, or that which infringes or may infringe intellectual property or other rights of another. You agree not to use the Services for the transmission of “junk mail”, “spam”, “chain letters”, “phishing”, “misleading”, “fraudulent”, unsolicited messaging, or mass distribution of email. For direct email campaigns in particular, that is, if you plan to send a single email message from one sender to more than 100 recipients, You agree not to use SOPHIMAIL production email, or any email mechanism which is made available for Test, Trial, Demo, or NFR. You are recommended to use specific email marketing tools instead, which are designed for such an activity. SOPHIMAIL provides a very efficient Email Marketing tool, found under Advanced Services on the Website. AVERWAY reserves the right to terminate Your access to the Software and/or any Services if there are reasonable grounds to believe that You have used them for any illegal or unauthorized activity.
Deployment requirements. Minimum requirements for SOPHIMAIL email server are: a domain legally registered by You, a server with 2 vCPU Core and 4 GiB RAM and a static IP address. Initial access will be enabled via Round Cube Web Mail. For Daily Backup, you are encouraged to indicate to us a trusted location, either a NAS on your premises, or a trusted Datacenter. For Archiving, we strongly recommend that you use tamper-proof and non re-writable media (such as Blue-Ray Discs) and that you follow a consistent Archiving Policy. AVERWAY experts are at your disposal to provide professional infrastructure consultation and you may submit your request at www.sophimail.com/presales or firstname.lastname@example.org.
The rest of system requirements depend on a number of parameters such as, indicatively and not limited to: Your email storage size needs (GiB), Your aggregate daily email traffic, total number of Your on-premises and Your remote End-Users, as well as on your preferences about deployment mode: on cloud or on premises, on physical server(s) or on VPS, single node, cluster (active-passive) or hybrid mode (active-active servers).
User Generated Content and protection of IP (Intellectual Property). You may transmit or publish content created by You, using SOPHIMAIL. However, you shall be solely responsible for such content and the consequences of its transmission or publication. Any content made public will be publicly accessible through the internet and may be crawled and indexed by search engines. You are responsible for ensuring that you do not accidentally make any private content publicly available. Any content that you may receive from other users of the Services, is provided to you AS IS for your information and personal use only and you agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such content for any purpose, without the expressed written consent of the individual or legal entity who owns the rights to such content. In the course of using any of the Services, if you come across any content with copyright notice(s) or any copy protection feature(s), you agree not to remove such copyright notice(s) or disable such copy protection feature(s) as the case may be. By making any copyrighted/copyrightable content available on any of the Services you affirm that you have the consent, authorization or permission, as the case may be from every individual or legal entity who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, you expressly agree that AVERWAY will have the right to block access to or remove such content made available by you if AVERWAY receives complaints concerning any illegality or infringement of third party rights in such content.
DURATION AND TERMINATION
Regarding Services, Your subscription is automatically renewed for one (1) year, upon duly renewal payment, unless one party provides the other with a written termination notice at least thirty (30) days before the Service Period expires. Subsequent annual Service Fees shall be charged at AVERWAY’s current standard rates. AVERWAY shall provide You with an invoice or a written notice detailing the annual Service Fee for the renewal of a Service Period at least thirty (30) days before expiration of such Service Period. If You do not pay the relevant Service Fee for renewal, prior to the expiration of the initial Service Period, the relevant Service will be terminated on its expiration date.
If Services have been terminated by You, You may restore such Services upon payment of the applicable annual Service Fee, plus all unpaid annual Service Fees for the periods subsequent to the date of termination or such alternative restoration fee, if any, as the parties mutually agree and accept in writing at the time of restoration.
Support Services may be terminated by AVERWAY prior to the expiration of the Service Period upon the occurrence of any of the following events of default and the failure of You to cure such default within thirty (30) days after written notice has been given by AVERWAY to You: (a) if You don’t settle overdue payments; (b) if any breach occurs under any confidentiality provisions; or (c) if any material breach by You occurs as to any other term hereof or any other agreement between AVERWAY and You.
In the event of any such default AVERWAY shall have the option to terminate Support Services by written notice of termination to You. Upon such termination, all amounts owed by You shall become immediately due and payable to AVERWAY.
If either party is unable to pay its debts or becomes insolvent, or enters into or proposes any composition or arrangement with its creditors generally, Support Services shall be immediately terminable by the other party by written notice, but without prejudice to any rights of the terminating party hereof, such termination to be effective as of one day prior to such event.
Support Services may be terminated by You prior to the expiration of the Services Period in the event of a breach by AVERWAY of any warranty expressly set forth herein or a material breach by AVERWAY of any other term or condition hereof and AVERWAY fails to cure such breach within thirty (30) days after written notice of such breach is given by You to AVERWAY. In the event of any such default, You shall have the option to terminate Support Services by giving notice of termination to AVERWAY immediately and receive a refund of any prepaid Support Fees for that portion of the Services Period subsequent to such termination.
Your payment obligations and any other provision hereof, which by its terms is intended to so survive, shall survive any expiration or termination of Support Services for any reason.
Creation of an Account. Creation of a Customer Account is required in case you purchase Ticketing or Support Plans. You are solely responsible for maintaining the secrecy of Your own passwords and change them regularly for security reasons.
Use of an Account. You have the sole responsibility of Your End Users and the Administrators of Your Account and You are liable for any act done using Your credentials. AVERWAY does not have any responsibility for any damage that may be caused to You or any third party by unauthorized or improper use of Your Account. You shall inform AVERWAY as soon as there is a verified incident of unauthorized use of Your Account and password or any other security breach.
Deletion of Customer’s Account. AVERWAY does not have any responsibility for any damage that may be caused to the Customer, as a result of his deleting his account. You shall notify AVERWAY if You find an incident of unauthorized deletion of any of Your accounts.
Notifications by AVERWAY to You. The Service may include certain communications from AVERWAY, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using the Services. You are responsible for regularly checking your email account associated with AVERWAY and SOPHIMAIL for messages from AVERWAY. You agree that delivery date and date of receipt for the notifications sent to You by e-mail is considered the dispatch date of the email. AVERWAY will provide you the option of opting out from receiving its newsletters, however, You will not be able to opt-out from receiving service announcements and administrative messages. As issue date for notifications through the Website or the Ticketing system are considered the date of publication.
Notifications to AVERWAY by You. You may send notifications to AVERWAY through “Tickets” on the Website, or to the departmental email addresses indicated in the CONTACTS webpage, or at email@example.com.
Customer Withdrawal. You reserve the right to withdraw from the Service without justification within fourteen (14) working days from the date of activation of the account. In this case, You must notify AVERWAY via email at firstname.lastname@example.org and AVERWAY is obliged to return any amounts already paid by You within thirty (30) working days from the receipt of that notification. Your right to withdraw will be exercised by Your filling, signing and sending to AVERWAY the form below:
|DECLARATION OF WITHDRAWAL FROM THE CONTRACT
(You are kindly asked to complete and send this statement only if you wish to abort SOPHIMAIL)
Customer Responsibility – Ethics. AVERWAY has no means to control the content of email messages or chat messages sent by Your End Users and Administrator(s), so it does not guarantee the accuracy, integrity, legality, or quality of the content of emails or chats. In no case can AVERWAY nor SOPHIMAIL be held responsible for the content of Your emails or chats.
Trademarks. SOPHIMAIL and SOPHIMAIL logo are registered trademarks of AVERWAY Ltd. You agree not to display or use, in any manner SOPHIMAIL trademarks, without AVERWAY’s prior written permission.
Availability Levels. Depending on where You have chosen to host, the email application may experience interruptions and extended downtime during which You may not have access to the data. You are strongly advised to host on trusted Datacenters, whose Availability levels are covered by SLA. AVERWAY is not responsible for the availability levels of the infrastructure You have chosen. AVERWAY is not responsible for any damage suffered by You from the use or inability to use SOPHIMAIL, delays during its use, errors or omissions in this interruption of usability for any reason.
Safety. AVERWAY may apply security technologies and procedures to contribute to security against unauthorized access to the e-mail application or use thereof. AVERWAY does not guarantee the success of these technologies and processes, and does not assume any liability in case of damage caused to the Client due to loss, alteration, destruction of email data due to improper operation of SOPHIMAIL, of fraudulent e-mail or failures of safety systems, malicious action by third parties. You are solely responsible for the safety, protection and creation of data backup, as well as any other data, software or services used in connection with SOPHIMAIL.
DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF SOPHIMAIL IS AT YOUR SOLE RISK. SOPHIMAIL IS PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS. AVERWAY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. AVERWAY MAKES NO WARRANTY THAT SOPHIMAIL WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF SOPHIMAIL SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM AVERWAY, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
LIMITATION OF LIABILITY
YOU AGREE THAT AVERWAY SHALL, IN NO EVENT, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER LOSS OR DAMAGE WHATSOEVER OR FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS ARISING OUT OF OR CAUSED BY YOUR USE OF OR INABILITY TO USE THE SERVICE, EVEN IF AVERWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR COULD HAVE FORESEEN SUCH DAMAGE. IN NO EVENT SHALL AVERWAY’S ENTIRE LIABILITY TO YOU IN RESPECT OF ANY SERVICE, WHETHER DIRECT OR INDIRECT, EXCEED THE FEES PAID BY YOU TOWARDS SUCH SERVICE.
Indemnification. You agree to indemnify and hold harmless AVERWAY, its officers, directors, employees, suppliers and affiliates, from and against any losses, damages, fines and expenses (including attorney’s fees and costs) arising out of or relating to any claims that you have used SOPHIMAIL in violation of another party’s rights, in violation of any law, in violations of any provisions of the Terms, or any other claim related to your use of SOPHIMAIL, except where such use is authorized by AVERWAY.
Force majeure. AVERWAY does not have any liability to You for any failure, delay, deterioration or failure to provide SOPHIMAIL for reasons due to force majeure events and / or hardships.
- The headings of the Articles and paragraphs of this contract are for convenience only and do not affect the interpretation thereof.