Terms of Service

Welcome to Everymail, provided by Open-Xchange, Inc. doing business as Everymail ("we," "our," or "us"). These Terms of Service ("Terms") govern your (the “Customer’s” or “You”, “Your”) subscription to and your use of our email and collaboration services (the "Service").

These Terms represent a legally binding agreement between you and Open-Xchange, Inc, including binding arbitration as well as waivers regarding jury trials and mass/class action (section M. f., i., j.). It is imperative that you read them carefully before agreeing and using the Service. If you do not agree with any part of these Terms, you should refrain from subscribing to and using the Service.

A. Contracting

a. Eligibility. To be eligible to subscribe to the Service, you must be a business entity or an individual acting in a business capacity, including sole proprietors and entrepreneurs. The Service is strictly intended for business use and is not available for private or personal purposes. By accepting these Terms, you confirm that you are acting on behalf of a business, not for personal use. You may not subscribe to or use the Service where failure or fault of the Service could lead to death or injury of any person or to physical or environmental damages. We hereby object to and do not accept any subscription to our Service by persons, organizations, companies or any legal entities, including affiliates, which are involved or suspected of involvement in activities or causes relating to illegal gambling; terrorism; narcotics trafficking; arms trafficking or proliferation, -development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, as well as weapons of mass destruction or missiles; this applies to any affiliation or part taking in such activities whatsoever; multi-level-marketing; credit repair; list brokers or -rental services; pharmaceutical products; or social media related publicity services like selling retweets, fake-users, likes, and comparable measures.

b. Contracting. The contract becomes effective once you provide the required information, accept these Terms by ticking the respective checkbox, and successfully proceed through the subscription and checkout workflow (the “Order Flow”). By completing these actions, you enter into a binding contract with us and agree to comply with the Terms and to make timely payments as indicated in the Order Flow.

c. Scope of Agreement. This agreement, together with the specific terms of the subscription as provided for or referenced in the Order Flow, governs the use of the entire Service, including any software provided by us in conjunction with the Service. There may be separate terms and conditions for such software, which will prevail in case of any conflict with these Terms. Additionally, we may offer third-party integrations to enhance the Service. These Terms only apply to our portion of the Service, and third-party services are subject to their own terms and conditions, compliance with which is solely Customer’s responsibility.

d. Chargeable Enhancements. We may offer additional features or enhanced allowances as part of the Service. These enhancements may have different billing cycles and specific contract terms and will require separate consent for activation. Since Customer can create accounts for usage by employees or other individuals, Customer agrees that any actions taken by such individuals are binding on Customer, including the activation of additional chargeable features. Any so activated chargeable enhancement becomes part of Customer’s subscription, subject to its specific terms. Unless provided for otherwise, any chargeable enhancement co-terminates with the subscription itself.

e. Messaging. We may contact you regarding product updates, Service status, special offerings related to our Service, chargeable enhancements and information about third-party integrations available for use and/or purchase through our Service. These communications may be made through email, phone, or other contact details you provide. By using the Service, you consent to receive such communications, which are an integral aspect of your use of the Service.

 B. Fees, Billing, and Payment

a. Fees. The fees for the Service are outlined on the subscription pages and during the Order Flow and may vary based on tiers, features, or allowances selected. Fees are subject to change at any time, with any new pricing taking effect upon the renewal of your subscription. We will provide notice of fee changes via email, in the subscription management portal, or elsewhere within the Service. All fees are non-refundable, regardless of actual usage.

b. Invoices & Payment Details. Invoices will be issued and made accessible within the Service and/or sent via email.   Physical invoices are not available. Invoices are issued to the person or entity and address provided by Customer. It is Customer's responsibility to ensure that the relevant details are accurate and always up-to-date. Customer must also keep payment details current and ensure the payment method has sufficient funds. Additional costs incurred due to failed payments will be borne by Customer.

c. Taxes, Fees, Surcharges. Customer is responsible for all applicable taxes, including sales tax, value-added tax (VAT), or other similar taxes and charges imposed by authorities. Any applicable sales tax will be added to the invoice as a separate line item and shown in the order process. Additional surcharges may apply depending on the jurisdiction. Compliance with all applicable tax obligations is Customer's responsibility.

d. Payment date. Fees must be paid in advance using one of the payment methods available in the Service, which are subject to change. If payment is not successful, we reserve the right to suspend access to the Service until payment is received, or to terminate in accordance with these Terms.

e. Payment disputes / Chargebacks. Customer may dispute an invoice or payment by providing notice giving detail of the grounds for dispute to our customer care channel within 15 days of the disputed event. If our customer care does not resolve the matter within 10 days after Customer’s notice has been received, Customer may escalate through the dispute resolution procedure outlined in Section M; Costs incurred due to unjustified chargebacks or non-compliance with this section will be borne by Customer.  

 C. Service

a. Availability. We do not guarantee, represent or otherwise commit to uninterrupted Service availability and make no commitments regarding service levels. While we strive for constant availability, the Service may experience downtime due to system maintenance, the systems of our service providers, or events beyond our control, such as force majeure.

b. Limitations. The Service must not be used for engaging in high-risk activities or for use that requires compliance with special regulatory requirements, such as HIPAA or PCI-DSS. WE EXPLICITLY DISCLAIM RESPONSIBILITY, WARRANTIES (ALSO IMPLIED) OR REPRESENTATIONS FOR ENSURING COMPLIANCE WITH SUCH REQUIREMENTS; IT IS SOLELY CUSTOMER’S RESPONSIBILITY TO VERIFY IF THE SERVICE IS SUITABLE FOR ITS BUSINESS, LEGAL, REGULATORY OR OPERATIONAL REQUIREMENTS.

(1) Modifications: If we make a material modification that negatively affects you and significantly alters functionality or scope to your detriment, you may terminate your subscription by notifying us within 30 days after the modification shows effect. In such cases, we will refund any unused prepaid fees.

(2) Discontinuation: If the entire Service is discontinued, we will refund any unused prepaid fees. No termination rights are granted for partial discontinuations of immaterial nature. Where a partial discontinuation of the Service has a material detrimental impact on Customer, the rights under subsection (1) above apply.

(3) Outages: Customer has no right to terminate for temporary outages or interruptions of the Service unless it exceeds 50% of the subscription term and materially affects the Service. In such cases, Customer may terminate within 30 days after the threshold has been passed, and we will refund any unused prepaid fees.  

d. Third Party Integrations. We may offer third-party integrations that interoperate with the Service. Permanent availability of these integrations is not guaranteed, and we may remove or alter them at any time. Customer acknowledges that third-party integrations may receive data from our Service, and that the use of such data by third parties is governed by their terms, and not by these Terms. We disclaim responsibility for the actions or failures of third-party services. It is your responsibility to comply with the third party’s contractual terms.

e. Software. We may provide software applications for various devices for use in conjunction with the Service. Use of these applications is subject to these Terms and any supplemental or additional terms applying to the sources or platforms where the application is obtained, as well as any separate license terms shown in the software itself.

 D. Subscription Terms 

a. Renewals. Subscriptions renew automatically at the end of each billing cycle at then-current conditions (which may vary from the conditions of the previous billing cycle), unless Customer provides notice of non-renewal at least one day before renewal   . The first item ordered by Customer determines the billing cycle of all items ordered thereunder; all additional items and enhancements subsequently ordered will share the first item’s subscription term and billing cycle; any applicable fees being pro-rated accordingly; any renewals occurring when the first item renews; a termination of the initial item leading to co-termination of any subsequently added items. Notices of non-renewal must be submitted through the subscription management module within the Service  . While enjoying any free trial, transitioning to a subsequent chargeable subscription can only be avoided by terminating the free trial, which results in the immediate loss of access to the respective Service. Additional conditions outlined in the Order Flow may apply. We will inform Customer about planned changes to the renewal conditions within the Service and/or via email in due time.

b. Suspension. We reserve the right to suspend access to and operation of the Service in cases of non-payment or if we have reason to suspect breach of these Terms or if an account is observed or reported to being subject to abuse. This includes breaches by Customer or assigned users. Suspension may occur without notice if a breach poses risks to the Service's integrity or security. During suspension, all applicable fees remain due and payable, and are non-refundable. Suspension will be lifted if and when the outstanding payment has been made or the breach (or alleged breach) is resolved, unless we terminate the subscription for Customer’s breach or non-payment in our sole discretion.

c. Termination by Customer. Customer may terminate their subscription at the end of the subscription term by giving notice as described under subsection a. above. Additionally, Customer may terminate for material breach by us if the breach is not cured within 30 days after notice. In such cases, unused prepaid fees are refundable.   Termination for convenience is not permitted, except for Customer’s cancellation of any free trial.

d. Termination by Provider. We reserve the right to terminate in the following circumstances:

(1) Non-Payment: If Customer fails to pay within the specified period or any voluntary grace period given by us.

(2) Breach by Customer: If Customer or an assigned user is in breach of these Terms or applicable law.

(3) Discontinuation or Transfer of Business: If we discontinue the Service or transfer our business or certain assets to another entity.

(4) Insolvency: If Customer or we become insolvent or undergoes bankruptcy proceedings.

(5) Domain License Cessation: If Customer's license to use the sub-domain or our license to use the domain or sub-domain ceases.

(6) Third-Party IP Claim: If a third party alleges or claims that the Service infringes upon a third party’s intellectual property rights.

e. Consequences of Termination or Non-Renewal. When Customer or any other person with access to the Service opts to delete a mailbox, or any enhancement thereto, the data stored and processed in the affected Service will immediately be deleted. Where Customer gives notice of non-renewal regarding any Service or part thereof, the Data stored and processed in the affected Service will be deleted at the end of the then-current subscription term. Customer is responsible for effecting final payments, exporting data using the measures provided in the Service, and informing all affected users of termination consequences beforehand.

f. Domain License. Customer grants us a license to use their domain name and their sub-domain solely for providing the Service. It is Customer's responsibility to ensure they have all rights to use the domain and sub-domain name. Company holds a license to the domain names from a third party. If any of these licenses ceases, we may terminate the subscription without penalty or other recourse. In case of cessation of such third-party license, unused prepaid fees are refundable.

g. Modification of TOS. We reserve the right to modify these Terms by posting an updated version at Everymail TOS, and if posted in this manner, the modified Terms shall be effective immediately upon posting such notice. We will inform you about a planned modification by giving at least 30 days’ notice prior to the effective date of the respective change. Changes without operational or commercial impact do not incur a termination right for Customer. For changes with significant impact on operations, or on the commercial agreement, the Customer may terminate within 30 days after receiving the notification by giving written notice, in which case unused prepaid fees are refundable.

h. No termination damages. Customer cannot claim damages, separation damages, penalties or take other recourse for Provider’s termination or suspension or for Customer’s termination in accordance with the terms above.

E. Default

a. Invoices / Payments. Customer is in default if payments are not made as specified in the Order Flow. Disputes about invoices, charges and payments must be raised by giving sufficient detail of the cause within 30 days, or otherwise they are deemed accepted.

b. Cost of Collection. Customer is responsible for all collection costs, including attorneys' and collection, as well as any other legal fees and expenses.

F. Customer Responsibilities

a. Customer Responsibility for User Actions. Customer may allot Service accounts to individuals within their organization. Customer is fully responsible for all actions performed by users of accounts allotted by Customer, as if such actions were performed by Customer themselves. Any use of the Service by the customer’s assigned users shall be considered authorized by Customer, and Customer shall be liable for any resulting consequences, including breaches of these Terms or violations of applicable laws. Customer will inform all users of the essential responsibilities and obligations hereunder. Customer shall also inform users of their Service accounts that Customer is able to reset the access credentials for any account, thereby blocking the user’s access and gaining access to all data stored in that user’s Service account.

b. Account Security. Customer is responsible for maintaining the security of all their accounts, including ensuring that passwords and other access credentials are kept confidential and not shared, except with users assigned by Customer. Each user of an account must maintain the confidentiality of their credentials and is responsible for any actions taken using their account. Customer agrees that we may rely on any action performed by a logged-in user as authorized and binding on Customer.

c. Data Backup. It is Customer's sole responsibility to back up all data associated with their use of the Service and stored therein. We do not perform data backups on behalf of Customer and do not accept any liability for data loss. By using the Service, Customer acknowledges and agrees that we are not responsible for maintaining or backing up any data, and all risks related to data loss are borne by Customer.

d. Acceptable Use Policy. Customer and users must comply with all applicable laws. Customer, and all users of accounts, are required to use the Service in compliance with all applicable laws and these Terms. The following activities are strictly prohibited:

(1) Using the Service for any unlawful purpose, including but not limited to fraud, spamming, or harassment, collection or use of information, such as email addresses, nick names or other identifiers, by deceit (for example by phishing, scamming, password robbery, spidering and harvesting);

(2) Engaging in activities that infringe upon the rights of third parties, including intellectual property rights, especially to infringe or misappropriate the rights of a third party in means of copyright, trademark, service mark, invention or other intellectual property or proprietary information; to assist in such behavior by displaying another person’s trademark without permission; to publish another person’s trade secrets or violate confidentiality duties; to use the Service to download, publish, torrent, distribute, use, or otherwise copy in any manner any text, music, software, art, image, or other work protected by copyright law unless permission from the owner of the work to use or copy the work in that manner was obtained, or can be derived otherwise from established intellectual property law to copy or use the work or rights in that manner.

(3) Using the Service in a manner that could disrupt, disable, overburden, or impair the functioning of the Service or interfere with other customers' use of the Service, including but not limited to probing, scanning or testing the vulnerability of any system or network; testing or reverse-engineering the Service to find limitations, vulnerabilities or evade filtering capabilities; interfering with the use of the Service, or the equipment used to provide the Service; monitoring data or traffic on any network or system without our prior written authorization; arranging directly or indirectly that any of our IP spaces is being listed on an abuse database; creating an unusual level of load on the Service by using scripts or applications to access the APIs of the Service.

(4) Attempting to gain unauthorized access to any part of the Service, including other users' accounts, data, or networks; compromising or bypassing our security measures by breach by altering, disabling, interfering with or circumventing any aspect of the Service; accessing, tampering with, or using non-public areas of the Service, shared areas of the Service the User has not been invited to; accessing or searching the Service by any means other than our publicly supported interfaces (for example by ‘scraping’); actively withholding or disguising identity or contact information, such as omission, deletion or misreporting of identification or transmission information

(5) promoting any behavior that may result in retaliation against our services, network or website, or our employees, officers, agents, affiliates, for example like resulting in denial of service attack;

(6) Using the Service for unlawful, unreasonable and/or unsolicited marketing methods, including but not limited to overloading, flooding spam, overloading, broadcast attacking or mail-bombing any part of the Service; generating or facilitating unsolicited bulk commercial email; sending unsolicited communications, promotions or advertisements or spam; sending altered, deceptive or false source-identifying information, including ‘spoofing’ or ‘phishing’; promoting or advertising products or services other than your own without appropriate authorization;

Customer agrees that any violation of this Acceptable Use Policy may result in immediate suspension or termination of the Service, as well as potential legal action.

e. Compliance. Customer shall comply with all relevant laws, ordinances, regulations and other binding legal instruments governing the usage of the Service. Especially, Customer shall (a) make available a privacy policy or other disclosure as far as required; (b) ensure that the recipients of any advertisement or commercial mailing have given their consent to receive such email, or to provide and respect a compliant opt-out procedure; (c) be able to produce the evidence of such procedure within 72 hours of receipt of a request; (d) use reasonable means to identify a recipient as an email addresses’ owner of; (e) honor revocations of consent and notify recipients thereof.

f. Prohibited Content. Customer shall not use the Service to store, send, receive or otherwise convey any data, files or other content (a) to violate or encourage the violation of the legal rights of others; (b) for any unlawful, invasive, infringing, defamatory, or fraudulent purpose or other malicious or morally repugnant purposes; (c) to intentionally distribute viruses, worms, trojan horses, corrupted files, hoaxes, or other terms of destructive or deceptive nature; (d) to impersonate or misrepresent their affiliation with any person or entity; (e) to publish or share materials that are unlawfully pornographic or indecent, or that advocate bigotry, religious, racial or ethnic hatred; (f) to publish or share content or links to content that is excessively violent or promotes, contains or incites violence, hate speech or creates risks for the safety or health of a person or the public as well as for national security or interferes with an investigation by law enforcement; (g) using false or misleading or deceptive header information in emails; (h) distributing software that covertly gathers or transmits user information; (i) to defame or violate a person’s privacy.

g. Privacy Policy. Customer acknowledges that their use of the Service is subject to our Privacy Policy, which can be found here: Privacy Policy. As a business, Customer may be considered a data controller (or a comparable role) in accordance with applicable data protection or privacy regulations. In such cases, the Data Processing Agreement, Data Processing Agreement, shall apply. It is Customer's responsibility to ensure compliance with all applicable privacy regulations and to inform assigned users accordingly.

h. User Content. Customer and users of accounts assigned by Customer are solely responsible for any content they upload, create, or receive using the Service. We do not proactively monitor user content, and all responsibility for the legality, reliability, and appropriateness of such content rests with Customer and users. However, if we become aware of any unlawful or infringing material, we reserve the right to remove such content without further notice and may suspend or terminate access to the Service. By using the Service, Customer and users grant us a license to use, store, and process the content they upload, create, or receive solely for the purpose of providing the Service. This license is non-exclusive and limited strictly to the duration of Customer's use of the Service.

G. Representations and Warranties

Customer represents and warrants that it has the authority to enter into this agreement and to use the Service in compliance with these Terms and all applicable laws. Customer warrants that they will use the Service solely for authorized purposes and in accordance with all applicable regulations and these Terms.

WE PROVIDE THE SERVICE "AS IS" AND "AS AVAILABLE," WITHOUT ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.

H. Indemnification

Customer agrees to indemnify, defend, and hold us harmless from and against any and all claims, liabilities, damages, losses, and expenses (including reasonable attorneys' fees and legal costs) arising out of or in connection with: (i) Customer's or their users' use of the Service; (ii) any breach by Customer or their users of these Terms; (iii) any content uploaded, created, or received by Customer or their users using the Service; or (iv) any violation of applicable law or third-party rights, including intellectual property rights. This obligation will survive the termination or expiration of this agreement.

I. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL LIABILITY TO CUSTOMER FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THE USE OF THE SERVICE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE AMOUNT CUSTOMER HAS PAID TO US FOR THE SERVICE IN THE 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.

WE EXPRESSLY DISCLAIM LIABILITY FOR ANY DAMAGES RESULTING FROM:

• ANY LOSS OR CORRUPTION OF DATA,
• ANY SERVICE INTERRUPTIONS, INCLUDING THOSE RESULTING FROM MAINTENANCE, POWER, INTERNET OR INFRASTRUCTURE FAILURES, OR OTHER EVENTS OUTSIDE OUR REASONABLE CONTROL,
• ANY UNAUTHORIZED ACCESS TO CUSTOMER ACCOUNTS DUE TO CUSTOMER'S FAILURE TO MAINTAIN PROPER SECURITY.

IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUE, BUSINESS, DATA, OR USE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER AGREES THAT THESE LIMITATIONS OF LIABILITY ARE AN ESSENTIAL PART OF THE AGREEMENT AND REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES.

IF ANY JURISDICTION DOES NOT PERMIT THE LIMITATION OF LIABILITY AS STATED, OUR LIABILITY SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

J. Force Majeure

We shall not be liable, and Customer shall not have any recourse, for any failure or delay in performing our obligations under these Terms if such failure or delay is caused by events beyond our reasonable control. These events include, but are not limited to, natural disasters (such as floods, earthquakes, hurricanes), acts of war, terrorism, civil unrest, governmental actions, regulatory changes, network or power failures, epidemics or any other event that would make it impracticable or impossible for us to provide the Service. We will make reasonable efforts to notify Customers of any such force majeure event that impacts our ability to provide the Service.

K. Intellectual Property

a. Ownership. The Service, including but not limited to all software, code, algorithms, updates, improvements, modifications, and derivative works contained in it or made available for use with the Service, is and shall remain our exclusive property. All rights, title, and interest in and to the Service are reserved to us, except as expressly granted to Customer under these Terms.
b. License Grant. Subject to compliance with these Terms, we grant Customer a limited, non-exclusive, revocable, non-transferable license to access and use the Service solely for Customer’s internal business purposes. Any other use of the Service is strictly prohibited without our prior written consent.

c. Third-Party and Open-Source Software. The Service and any software made available for use with the Service may contain third-party or open-source software components. The use of such components is governed by their respective licenses, copyright notices, and terms, which are available within the Service. By using the Service, Customer agrees to comply with all such third-party terms.

9.4 Trademarks and Branding.  All trademarks, service marks, logos, and branding associated with the Service are our exclusive property or the exclusive property of our subcontractors, partners or affiliates. Nothing in these Terms grants Customer any rights to use any of these trademarks or branding without prior written authorization.

9.5 Feedback and Suggestions. Any feedback, suggestions, recommendations, or ideas provided by Customer regarding improvements or modifications to the Service (“Feedback”) shall become our sole and exclusive property. Customer hereby assigns to us all rights, title, and interest in such Feedback without the need for any further action or compensation.

K. Copyright / IP Infringement

The Service does not necessarily feature any publicly accessible sharing functionality. However, if the Service includes any publicly accessible areas or sharing features, the following procedure applies.

a. Notice and Takedown Procedure: If you believe that any content available on or through the Service infringes your copyright or other intellectual property rights, you may notify us by providing a written notice with the following information: (i) identification of the material that you claim is infringing, (ii) a description of the infringement, and (iii) your contact information. Upon receiving a notice, we may remove or disable access to the allegedly infringing material.

b. Disputes Regarding Takedown: If Customer believes that content removed by us was removed in error, they may submit a counter-notification with sufficient details to dispute the takedown. We reserve the right to reinstate the content if, upon review, we find it was wrongfully removed.

c. Disclaimer: We do not actively monitor the Service for copyright or intellectual property infringement. However, upon becoming aware of potentially infringing material, we may take action, including removal of the content and suspension or termination of user access.

L. Subpoena Policy

We may be required to disclose customer information to comply with a current judicial proceeding, a court order, subpoena or other lawful process served on us. It is our policy to notify Customer of any such requests, to the extent permitted by law, prior to disclosing the requested information. Customer accepts such notifications via email, and will be responsible to contest or reject such requests in their own responsibility and at their own cost. Customers are responsible for any costs incurred by us in responding to such requests, including reasonable administrative fees, attorney’s fees, and any other expenses, as far as the claimant does not reimburse us directly.

M. General

a. No Resale. The Service is provided exclusively for Customer's business use and may not be resold, sublicensed, or otherwise made available to third parties. This restriction does not prevent Customer from assigning individual accounts to their employees, contractors, advisors, or other individuals directly engaged in their business, provided that such use is solely for Customer's own purposes and not for the benefit of those third parties. Any unauthorized resale or distribution of the Service is strictly prohibited and may result in termination of the Service.

b. Assignment. Customer shall not assign their rights or obligations under these Terms without our prior written consent. We may assign our rights or obligations under these Terms freely, without restriction.

c. Novation/Transfer. We reserve the right to novate or otherwise transfer this agreement, including all rights and obligations, to another entity, such as in the case of a merger, acquisition, corporate restructuring, or a transfer of the business that includes this particular line of service. This includes transferring all account data, account content, and payment information. Customer agrees that by continuing to use the Service after such a transfer, they accept the new provider as a party to this agreement with the same rights and obligations as we had before the transfer. Reasonable notice of any such novation or transfer will be provided to Customer.

d. Notices. Notices of non-renewal and changes of contact data, payment details, and other information editable in the subscription management system of the Service are to be submitted only by these means. Customer shall transmit other legal and contractual notices via certified registered post mail to us, with a copy to mailto:legal@everymail.com. We may issue notices of any kind to Customer via their primary email account, by post, or as a display message within the Service. Customer care interactions are meant for convenience and to deal with technical questions only; any notices provided through customer care channels are not legally binding, except as provided for otherwise herein.

e. Internal Escalation. In the event of any dispute, controversy, or claim arising out of or relating to this agreement, including any question regarding its existence, validity, or termination, (each a “Dispute”) the parties agree to follow this binding escalation procedure before initiating any arbitration or litigation: The aggrieved party shall provide written notice to the other party, detailing the nature of the Dispute and any proposed resolution (“Notice of Dispute”). Upon receipt of the Notice of Dispute, senior representatives from each party shall meet in good faith to negotiate and attempt to resolve the Dispute within 20 business days. Such representatives shall have the authority to settle the Dispute on behalf of their respective parties. Compliance with this escalation procedure is a binding condition precedent to commencing any formal arbitration or litigation proceedings, except where interim relief or urgent injunctive relief is sought and such steps are impracticable. Any failure to comply with this clause shall bar the initiation of formal proceedings until the escalation steps are completed. All discussions and negotiations under this Escalation Procedure shall be conducted on a confidential, without-prejudice basis and shall not be admissible in subsequent proceedings.

f. Binding Arbitration. Any dispute, controversy, or claim between Customer and us including any parents, subsidiaries, affiliates, officers, directors, employees, or agents of either party, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort) or other legal or equitable theory, including those arising out of or relating to the subscription, and these Terms, their validity, breach, or termination, SHALL BE RESOLVED BY BINDING ARBITRATION – RATHER THAN BY LITIGATION IN COURT. The arbitration shall be conducted by a neutral arbitrator in accordance with the rules of the American Arbitration Association (AAA) in New York City.

Any award arising out of such arbitration shall be subject to entry as a judgment by any court of competent jurisdiction in the United States. Any action to confirm or vacate such an award must be brought in a federal court of competent jurisdiction located in New York. You consent to personal jurisdiction and venue in such courts, and you waive any challenge to personal jurisdiction or venue in such courts. You further agree that we shall be entitled to collect our attorneys' fees, costs and other expenses in the event that we act to enforce this arbitration and forum selection clause, regardless of whether we prevail in the underlying action. The final award in any such arbitration proceeding shall be subject to entry as a judgment by any court of competent jurisdiction, provided that such judgment does not conflict with the terms and provisions hereof. The jurisdiction of the arbiter (or arbiters) with respect to legal matters shall be limited only by the laws of the State of New York.

(1) Opt-Out Procedure: Customer has the right to opt out of binding arbitration by giving written notice within 30 days of first accepting these Terms. To opt out, Customer must sign and send a written notice to Open-Xchange, Inc., Attn: Legal Dptm., 228 Hamilton Avenue, Third Floor, Palo Alto, CA94301, USA, identifying Customer and the contract it refers to, together with a clear message of their decision to opt out of binding arbitration.

(2) Public Court Exception: In cases where the arbitration agreement is not binding or is not enforceable or where Customer has opted out, the dispute shall be resolved in a federal court of competent jurisdiction located in New York, USA.

(3) Any opt-out issued by Customer under this clause will survive any modification of these Terms, and will also remain effective if Customer decides to renew the subscription. However, the opt-out given hereunder is not effective in relation to any new or separate agreement that Customer enters into with us.

g. Notwithstanding the provisions of Section f, if you fail to timely pay amounts due we may assign your account for collection and the collections agency may pursue such claims in court limited strictly to the collection of the past due debt and any interest or cost of collection permitted by Law or this agreement.

h. Nothing in Section f shall preclude us from: (i) seeking and obtaining any injunctive relief or attachment and expedited discovery or other equitable relief to enforce the terms of this agreement or to remedy a breach thereof, or (ii) bringing an action to enforce this agreement or the provisions hereof in the event AAA will not or cannot arbitrate a particular dispute. Any action under this section h. may be brought in a federal court of competent jurisdiction located in New York, USA, and each party consents to the in personal jurisdiction of such Courts for the purpose of any such action or proceeding. Each party hereby waives all rights it has or which may hereafter arise to contest such exclusive jurisdiction of a federal court of competent jurisdiction located in New York, USA.

i. Jury Waiver. To the fullest extent permitted by law, in addition to the foregoing, YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND US THAT IS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, and that such waiver shall be enforceable up to and including the day that trial is to start, and even if the arbitration provisions of this paragraph are waived.

j. Class/Mass Action Waiver. Neither you nor we may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to the subject matter of this agreement, nor may two or more individuals' disputes be consolidated or otherwise determined in one proceeding. YOU AND WE ACKNOWLEDGE THAT THIS SECTION i. WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION. This waiver is an essential part of the agreement and is intended to ensure that all disputes are resolved solely between the parties involved.

k. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of act arising out of or related to use of the Service or this agreement must be filed within one year after such claim or cause of action arose or be forever barred.

l. Export Control. Customer agrees to comply with all applicable export control and sanctions laws and regulations, including, without limitation, those of the United States and the European Union. Customer shall not, directly or indirectly, use, transfer, export, or re-export any products, services, or technical data provided by us in violation of any applicable export control laws or sanctions, including but not limited to U.S. Export Administration Regulations (EAR) and EU sanctions regulations. This includes ensuring that our products or services are not provided to any sanctioned country, entity, or individual without the appropriate governmental authorization.

O. Miscellaneous.

a. Severability. If any provision of these Terms is found to be unenforceable or invalid under any applicable law, such provision shall be modified to reflect the parties' intention as closely as possible while remaining enforceable, or, if that is not possible, shall be deemed omitted. The remaining provisions shall continue in full force and effect.
b. Entire Agreement. These Terms, together with the details given in the subscription process, and any referenced policies, constitute the entire agreement between you and us concerning the Service. They supersede any prior agreements, understandings, or representations regarding the Service.

c. No Waiver. Our failure to enforce any provision of these Terms shall not be deemed a waiver of that provision or any other provision, and no waiver will be effective unless made in writing and signed by us.

d. Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law principles.

e. Headings. The headings used in these Terms are for convenience only and shall not affect the interpretation of the provisions.

f. Relationship of the Parties. Nothing in these Terms shall be deemed to create any partnership, joint venture, employer-employee, or franchisor-franchisee relationship between you and us.

Last update: 01 29 2025