License Agreement / Terms and Conditions of Use

NOTE: This Agreement includes an Arbitration Clause, Limitations of Liability and Remedy, and a choice of Texas law and venue.

THIS LICENSE AGREEMENT ("AGREEMENT") SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH XPAMFUSE PROVIDES A LICENSE TO USE ITS SERVICE ("XPAMFUSE EMAIL SECURITY SERVICE") TO YOU ("YOU" OR "CLIENT") AND TO THE INDIVIDUAL USERS IDENTIFIED BY YOU AS BEING AUTHORIZED TO USE THE SERVICE ("AUTHORIZED USERS").

IN ORDER TO RECEIVE XPAMFUSE EMAIL SECURITY SERVICE, YOU MUST MARK THE "Agree" CHECKBOX DURING SIGN-UP. BY MARKING THE "Agree" CHECKBOX AND/OR BY USING THE XPAMFUSE EMAIL SECURITY SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT UNDERSTAND IT, AND AGREE TO BE BOUND BY IT. IF YOU DO NOT MAKR THE "Agree" CHECKBOX XPAMFUSE WILL HAVE NOT ENTERED INTO ANY LEGAL AGREEMENT WITH YOU AND SHALL NOT PROVIDE OR DELIVER THE XPAMFUSE EMAIL SECURITY SERVICE TO YOU.

1. License. Subject to the terms and conditions of this Agreement, XpamFuse grants you and your Authorized Users a non-exclusive right to use the XpamFuse Email Security Service.

2. Term. This limited license terminates automatically when your subscription to use the XpamFuse Email Security Service terminates. XpamFuse may terminate your license to use the XpamFuse Email Security Service if you or your Authorized Users violate the terms and conditions of this Agreement or the XpamFuse Privacy Policy.

3. Government Order. In the event XpamFuse is prevented from providing any portion or all of the Software or the XpamFuse Email Security Service or is required to grant access to unencrypted information, by any law, regulation, or ruling, regardless of form, issued by any judicial or other governmental entity, or if a notice from a governmental entity, department or agency indicates that the XpamFuse Email Security Service cannot be provided, XpamFuse may immediately cease providing the XpamFuse Email Security Service without any liability whatsoever to you. XpamFuse shall not be required to seek a waiver of any law, rule, regulation, or restriction, or seek judicial review or appeal of any court order

4. Restrictions on Use. You agree that you shall not reverse engineer, decompile, copy or disassemble the XpamFuse Email Security Service, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You shall not modify, or create derivative works based upon, the XpamFuse Email Security Service in whole or in part. You shall not create more than one trial account. You shall not attempt to interfere with the XpamFuse Email Security Service. Any use in violation of this Section shall immediately terminate your license to use the XpamFuse Email Security Service

5. Account Control and Pass Phrases. You acknowledge and agree that you are responsible for your use of your account and the XpamFuse Email Security Service by your Authorized Users. You and your Authorized Users shall be fully responsible for the control of and/or access to your account, including limiting access to pass phrases used to access your account. You agree to take all reasonable precautions to protect your pass phrase and those of your Authorized Users. You agree to notify XpamFuse immediately in the event you discover or think your account or your pass phrase has been compromised. XpamFuse shall have no liability to you or to any third party for your failure to prevent any unauthorized access or use of your account

6. Permitted Use. You and your Authorized Users shall only use the XpamFuse Email Security Service for the filtering electronic mail in accordance with the terms of this Agreement and the Privacy Policy, and will not use it in any manner that may degrade the performance or availability of the XpamFuse Email Security Service

7. Acceptable Use. You agree on behalf of yourself and your Authorized Users that you will not use the XpamFuse Email Security Service for any of the following purposes. If you do, XpamFuse may immediately suspend or limit the XpamFuse Email Security Service, or terminate the applicable license and services agreement without further liability or obligation to you, in addition to any other remedies that XpamFuse may have:

   • Using the XpamFuse Email Security Service in a way that has a detrimental effect upon XpamFuse, its customers or the XpamFuse Email Security Service, as determined by XpamFuse in its sole discretion

   • Attempting to use the XpamFuse Email Security Service in contravention of the terms of this Agreement

   • Committing or attempting to commit a crime or facilitate the commission of any crime or other illegal or tortious act

   • Using the XpamFuse Email Security Service for any unlawful, invasive, infringing, defamatory or fraudulent purpose

   • Using the XpamFuse Email Security Service for purposes directly or indirectly relating to the sending of unsolicited bulk commercial email ("Spam") of any kind

   • Using the XpamFuse Email Security Service to harvest email addresses or otherwise determine the existence of unknown email addresses

   • Interfering with the use of the XpamFuse Email Security Service by XpamFuse's customers or other Authorized Users

   • Altering, tampering with or circumventing any aspect of the XpamFuse Email Security Service

   • Testing or reverse engineering the XpamFuse Email Security Service in order to find limitations or vulnerabilities

   • Parking domains with no billable users unless the Pass-Through option is enabled for those domains

   • Evading licensing fees by intentionally understating user licenses

8. Intellectual Property. You agree that no title to the intellectual property in the XpamFuse Email Security Service is transferred to you. Title, ownership, rights and intellectual property rights in and to the XpamFuse Email Security Service shall remain in XpamFuse and/or XpamFuse's licensors. The XpamFuse Email Security Service is protected by intellectual property laws of the United States and other countries and by international treaties

9. Online Bulletin Boards, Forums and Blogs. We may from time to time host bulletin boards, forums, blogs or other public posting areas ("Forums"). The information and opinions expressed in these Forums are not necessarily ours, and we make no representations or warranties, whatever, regarding them. Neither do we assume any obligation to monitor these Forums or to delete or edit any postings. We do however reserve the right to delete, move, or edit any postings that we consider illegal or inappropriate in any way. Specifically, you shall not submit or otherwise publish through such Forums anything which libels, defames, invades privacy, or is even remotely obscene, pornographic, abusive, or threatening, violates any law, or advocates any illegal activity, advertises products or services, or solicits funds, or infringes any intellectual property or other right of any person or entity, including, but not limited to violating anyone's right of privacy or publicity.

   1. Grant of License for Posted Content. If you do post content or submit material, and unless we indicate otherwise, you grant XpamFuse and its affiliates a nonexclusive, royalty free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display such content throughout the world in any media. You grant XpamFuse and its affiliates and sublicensees the right to use the name that you submit in connection with such content, if they choose

   2. How to Notify XpamFuse if you think your copyright has been infringed. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide XpamFuses's copyright agent the written information specified below. Please note that this procedure is exclusively for notifying XpamFuse and its affiliates that your copyright material has been infringed.

      • An electronic or physical signature of the person authorized to act on behalf of the owners of the copyright interest

      • A description of the copyrighted work that you claim has been infringed upon

      • A description of where the material that you claim is infringing is located on the site

      • Your address, telephone number, and e-mail address

      • A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law

      • A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf

      • XpamFuse's Copyright Agent for notice of claims of copyright infringement on its site can be reached as follows:

        Copyright Agent
        XpamFuse
        Attn: Daniel Stevens
        2556 Elm Street
        Dallas, TX 75226
        Email: [email protected]

10. Indemnification. You shall defend, indemnify and hold harmless XpamFuse, its employees, officers, directors and agents, as well as XpamFuse's suppliers, successors, affiliates, agents and assigns (the “Indemnified Parties”) from any claims, damages, losses, or expenses (including without limitation attorneys fees and costs) incurred by any Indemnified Parties in connection with all claims, suits, judgments and causes of action: (i) for infringement of patents or other proprietary rights arising from combining with or using any device, system or service in connection with the XpamFuse Email Security Service (or any portion thereof); (ii) for libel, slander, defamation or infringement of copyright or other intellectual or proprietary right with respect to material transmitted by you using the XpamFuse Email Security Service; (iii) relating to a breach of any of the terms and conditions of contained in this Agreement; or (iv) injury, death, property damage or economic damages arising in connection with your use or inability to use and the performance or failure to perform of the XpamFuse Email Security Service

11. Non-exclusive Remedies. No remedy herein conferred upon XpamFuse is intended to be, nor shall it be construed to be, exclusive of any other remedy provided herein or as allowed by law or in equity, but all such remedies shall be cumulative. In the event of the termination of this Agreement by XpamFuse for your breach, you shall pay to XpamFuse all attorneys’ fees, collection fees, and related expenses, expended or incurred by XpamFuse in the enforcement of any right or privilege hereunder (including, but not limited to, telephone, freight, express and postal charges, expenses of paid investigators and reasonable compensation for time of XpamFuse's employees, agents and representatives)

12. Privacy. You represent and warrant to XpamFuse that you have submitted this Agreement only after you have read the privacy policy, understand it, and agree to be bound by its terms

13. DISCLAIMER OF WARRANTY. THE XPAMFUSE EMAIL SECURITY SERVICE IS PROVIDED "AS IS" AND "AS AND WHEN AVAILABLE", WITHOUT WARRANTY OF ANY KIND. XPAMFUSE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, ORAL OR WRITTEN. YOU ACKNOWLEDGE THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF XPAMFUSE EMAIL SECURITY IS WITH YOU. SHOULD THE XPAMFUSE EMAIL SECURITY SERVICE PROVE DEFECTIVE, YOU (AND NOT XPAMFUSE OR ANY DEVELOPER OR LICENSOR) ASSUME THE ENTIRE COST OF ANY COSTS OR DAMAGES INCURRED BY YOU. XPAMFUSE DOES NOT WARRANT THAT YOU WILL HAVE OR ENJOY UNINTERRUPTED OR ERROR FREE USE OR OPERATION OF THE XPAMFUSE EMAIL SECURITY SERVICE, THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE OR DEFINED PERIOD OF TIME, OR THAT THE XPAMFUSE EMAIL SECURITY SERVICE WILL AVERT OR PREVENT ALL OCCURRENCES OR THE CONSEQUENCES THEREFROM THAT THE XPAMFUSE EMAIL SECURITY SERVICE IS DESIGNED TO DETECT AND/OR PREVENT. ALL REPRESENTATIONS, WARRANTIES, ENDORSEMENTS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT AND ANY IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND/OR THOSE ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE CONDUCT ARE HEREBY EXCLUDED. IN ADDITION, XPAMFUSE DOES NOT WARRANT THE ACCURACY OR RELIABILITY OR SECURITY OF THE RESULTS OBTAINED THROUGH USE OF THE XPAMFUSE EMAIL SECURITY SERVICE OR ANY DATA OR INFORMATION DOWNLOADED, SENT, RECEIVED OR OTHERWISE OBTAINED OR ACQUIRED THROUGH THE USE OF THE XPAMFUSE EMAIL SECURITY SERVICE. YOU ACKNOWLEDGE THAT ANY DATA OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED, RECEIVED OR SUBMITTED THROUGH THE USE OF THE XPAMFUSE EMAIL SECURITY SERVICE ARE AT YOUR SOLE RISK AND DISCRETION AND THAT XPAMFUSE WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY HARM OR DAMAGE TO YOU OR YOUR PROPERTY (INCLUDING ANY DATA, E-MAIL, PERSONAL COMPUTER EQUIPMENT OR STORAGE MEDIA)

14. Limitation of Remedy. Notwithstanding anything contained herein to the contrary, the sole remedy for loss or damage caused by partial or total nonperformance or malfunctioning of the XpamFuse Email Security Service, or for delay or nonperformance of the XpamFuse Email Security Service, or breach by XpamFuse of its Privacy Policy, or partial or total failure of the XpamFuse Email Security Service, regardless of the form of action, whether in contract, tort (including negligence or gross negligence), strict liability or otherwise, shall be your actual direct damages, if any, which shall not, notwithstanding anything contained herein to the contrary, exceed One Dollar ($1.00). XPAMFUSE SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY PARTY CLAIMING BY OR THROUGH YOU FOR THE ACCURACY, SECURITY, TIMELINESS, COMPLETENESS OR CONTINUED AVAILABILITY OF THE XPAMFUSE EMAIL SECURITY SERVICE AND/OR OR ANY COMPONENT THEREOF, INCLUDING USE FOR MISSION-CRITICAL OR EMERGENCY COMMUNICATIONS OR IMPROPER OR UNAUTHORIZED ACCESS TO OR INTERCEPTION OF ANY COMMUNICATION OR OTHER NON-PUBLIC INFORMATION. YOU AGREE THAT IN NO EVENT SHALL XPAMFUSE OR ANY OF ITS LICENSORS BE LIABLE TO YOU OR ANY PARTY CLAIMING THROUGH YOU FOR, AND YOU HEREBY WAIVE YOUR RIGHT TO CLAIM, ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, BUSINESS OR REVENUES, INVASION OF PRIVACY, LOSS OF THE USE OF THE SOFTWARE OR THE XPAMFUSE EMAIL SECURITY SERVICE, OR ANY ASSOCIATED PRODUCTS, LOSS OF DATA, LOSS OF E-MAIL MESSAGES, IMPROPER OR UNAUTHORIZED ACCESS TO OR INTERCEPTION OF ANY E-MAIL TEXT OR OTHER COMMUNICATION OR OTHER NON-PUBLIC INFORMATION, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT SERVICES, DOWNTIME COSTS OR THE CLAIMS OF YOUR CUSTOMERS OR RECIPIENTS OF YOUR MESSAGES FOR SUCH DAMAGES) DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS AGREEMENT, XPAMFUSE'S PRIVACY POLICY, YOUR USE OR INABILITY TO USE ANY SOFTWARE OR THE XPAMFUSE EMAIL SECURITY SERVICE, OR XPAMFUSE'S ACT OR FAILURE TO ACT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN. THE FOREGOING DISCLAIMER SHALL APPLY IN CIRCUMSTANCES INCLUDING, BUT NOT LIMITED TO, YOUR INABILITY TO USE THE SOFTWARE OR THE XPAMFUSE EMAIL SECURITY SERVICE, OR ANY PART THEREOF. IF THE RELEVANT SOFTWARE OR ACCESS TO THE XPAMFUSE EMAIL SECURITY SERVICE WAS PROVIDED TO YOU AT NO CHARGE YOU AGREE THAT XPAMFUSE AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ADEQUATE PROTECTION AND BACKUP OF THE DATA AND EQUIPMENT USED IN CONNECTION WITH ANY OF THE XPAMFUSE EMAIL SECURITY SERVICE. THE LIMITATIONS IN THIS SECTION ARE COMPREHENSIVE AND ALL EXAMPLES ARE ILLUSTRATIVE AND NOT EXHAUSTIVE. THE LIMITATIONS IN THIS SECTION ARE SEPARATE AND INDEPENDENT OF ANY OTHER REMEDY LIMITATIONS IN THIS AGREEMENT AND SHALL NOT FAIL IF SUCH OTHER LIMITATION OR REMEDY FAILS. THE PROVISIONS IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISKS BETWEEN THE PARTIES. THIS SECTION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU

15. Assignment and Delegation. XpamFuse may assign this Agreement without notice to, or pre-approval by, you. You, however, may not and shall not assign this Agreement or any of your rights hereunder. XpamFuse may perform all obligations to be performed under this Agreement directly or may have some or all obligations performed by its contractors or subcontractors

16. Notices/On-Line Posting of General Changes.

    1. Except as otherwise provided in this Agreement, all notices or other communications to XpamFuse hereunder shall be deemed to have been duly given when made in writing and delivered in person, via overnight courier or certified mail addressed to XpamFuse, Attn: Daniel Stevens, 2556 Elm Street, Dallas, TX 75226

    2. Notices to you will be addressed via e-mail based on the information provided by you during the account registration process unless you have notified XpamFuse of any changes

    3. Notwithstanding the foregoing, or anything contained herein to the contrary, XpamFuse may amend, revise, change, alter, replace, substitute the system requirements and interoperability standards, acceptable use provisions, or any other general policies applicable to all end users, at any time and in any manner, including by posting a notice of any such changes or modifications, etc. on the XpamFuse Email Security Service website or by e-mail. Your use of the XpamFuse Email Security Service after posting of such a notice shall constitute acceptance of the modified terms

17. Force Majeure. Notwithstanding any other provision of this Agreement, neither party shall be deemed in default of this Agreement for failure to fulfill its obligations when due to causes beyond its reasonable control

18. Miscellaneous Provisions.

    1. Waivers of Default. Waiver by either Party of any default by the other Party shall not be deemed a continuing waiver of such default or a waiver of any other default

    2. Survival. The terms, conditions and warranties contained in this Agreement that by their sense and context are intended to survive the performance hereof by either or both parties shall so survive the completion of performance, cancellation or termination of this Agreement

    3. TEXAS LAW GOVERNS. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS EXECUTED AND WHOLLY PERFORMED WITHIN THAT STATE WITHOUT GIVING EFFECT TO ANY BODY OF LAW GOVERNING CONFLICTS OF LAWS. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded

    4. ARBITRATION CLAUSE. This Agreement, the Privacy Policy, and all disputes between you and XpamFuse are subject to mandatory binding arbitration. You and XpamFuse agree that all disputes, claims, and causes of action arising out of or in any way relating to this Agreement, the Privacy Policy, including but not limited to the performance or failure to perform of the XpamFuse Email Security Service, your use or inability to use the XpamFuse Email Security Service, and any representation or warranty made by either Party to the other, whether express, implied, or statutory, shall be subject to binding arbitration under the rules of the American Arbitration Association. The arbitration shall be held in Dallas, Dallas County, Texas, by a single neutral arbitrator. The decision of the arbitrator shall be final and may be entered as the judgment of any court of competent jurisdiction

    5. Venue/Forum Selection/Service of Process. If notwithstanding the Arbitration Clause there is any litigation concerning this Agreement the parties (i) agree that any disputes shall be heard in and by any state or federal court located within the County of Dallas, State of Texas, U.S.A.; (ii) hereby waive any objection to jurisdiction of said courts with respect to any action instituted against them as provided herein; and (iii) agree not to assert any defense based on lack of jurisdiction

    6. Right To Alter Systems, Equipment. XpamFuse reserves the right, from time to time, to make changes in the configuration of XpamFuse's proprietary facilities, type and location of equipment, programming languages, end user identification procedures, accessibility periods, allocation and quantity of resources utilized, rules of operation, its administrative and operational algorithms, and the designation of the control center serving you at any particular address