Terms Version Date: February 23, 2022
The following are the terms of service ("Terms of Service") that define the relationship between ECOMZ Holding Limited ("Company"),doing business as UniOne ("Company", "UniOne" "we" or "us")) and you, and govern your use of UniOne’s services.
Agreeing to our Terms
Thank you for your interest in UniOne, which owns and operates the UniOne platform ("UniOne").
UniOne provides certain services relating to the development, transmission, analysis, and management of email messages through the web site located at www.unione.io and such other sites as may be designated by us (each, the "Site" or collectively, the "Sites") and/or UniOne API (the "Services").
These Terms of Service contain general terms that apply to you as a user of the Service ("Customer"), along with additional terms that may apply to you as a Customer.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "you", "your" or "Customer" shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must not accept this Agreement and may not use the Service.
PLEASE READ THIS AGREEMENT CAREFULLY. BY SUBMITTING AN ORDER OR BY ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE AND AGREE YOU (1) HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT; (2) IF AN INDIVIDUAL, ARE 18 YEARS OR OLDER; AND (3) MEET THE OTHER QUALIFICATIONS SET FORTH IN THIS AGREEMENT.
The following words, when capitalized, have the meaning stated:
"Affiliate" means any legal entity that a party owns, that owns a party, or that is under its common ownership. "Ownership" means, for the purposes of this definition, control of more than a fifty percent interest in an entity.
"Agreement" means, collectively, these Terms of Service, including any other Guidelines and future modifications, and each of the other documents reference in these Terms of Service.
"Business Day" means Monday through Friday, excluding public holidays, in the country whose laws govern the Agreement.
"Confidential Information" means non-public information disclosed by one party to the other in any form that (i) is designated as "Confidential"; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure.
"Control Panel" means the customer portal accessible to Customer containing, among other information, the pricing terms applicable to Customer’s use of the Services and users designated to receive support.
"Customer Configuration" means an information technology system which is the subject of the Services or to which the Services relate.
"Customer Data" means all data which you receive, store, or transmit on or using the Customer Configuration.
"Deliverables" means the tangible or intangible materials which are prepared for your use in the course of performing the Services and that are specifically identified in a specific Order as Deliverables and described therein.
"EAUP” means UniOne’s Email and Acceptable Use Policy at https://unione.io/en/eaup.
"Intellectual Property" or "IPR" means patents, copyrights, trademarks, trade secrets, and any other proprietary intellectual property rights.
"Order" means the document which describes the Services you are purchasing, including any online order, process, or tool through which you request or provision Services, including any your subscription to any of UniOne’s subscription plans available at: https://unione.io/en/#prices.
"Representatives" means a party’s respective service providers, officers, directors, employees, contractors, Affiliates, suppliers, agents.
"Sensitive Data" means any: (i) personally identifiable information or information that is referred to as personal data (including sensitive personal data), PII (or other like term) under applicable data protection or privacy law and includes information that by itself or combined with other information can be used to identify a person, (ii) trade secrets, (iii) financial records (iv) other sensitive, regulated, or confidential information.
"Services" or "UniOne Services" means the UniOne services identified in a specific Order. Services which are provided on an on-going basis over a defined term are referred to as "Recurring Service" and Services which are provided on a one-off basis are referred to as "One Time Services".
"SLA" means any provision providing a specified credit remedy for an identified failure to deliver or provide the Services to the identified standard.
"Transactional Messages" mean communications that are sent in response to an action by an email recipient related to a product or service offered by you (e.g. a confirmation email sent in response to a purchase of a product or service through your App or website) or that concern the ongoing use, purchase or subscription by an email recipient of a product or service offered by you.
"Customer Configuration Requirements" means those specifications identified by UniOne as required to perform the Services, such as a required reference architecture or software version as described in your Order or Terms of Service.
2. UNIONE SERVICES
General. UniOne will provide the Services in accordance with the Agreement and all laws applicable to UniOne. UniOne’s obligation to provide Services is contingent on verification that you at all times satisfy UniOne’s credit approval criteria. UniOne shall have no obligation to provide Services for Customer Configurations which do not meet the Customer Configuration Requirements. UniOne will provide support only to those individuals designated in the Control Panel and is not required to provide any support directly to your end users.
Service Level Agreement. UniOne guarantees that the Services (meaning any or all of the API, SMTP and Outbound Delivery services listed at the Site) will be available 99% of the time in any given monthly billing period, excluding maintenance. You are entitled to a credit of 5% of your given monthly fee for the Services for each 1 hour of UniOne Service unavailability (after the first 1%) in a given monthly period.
Credit Limitations. You are not entitled to a credit if you are in breach of the terms governing your use of the Services until you have cured the breach. You are not entitled to a credit if downtime would not have occurred but for your breach of these Terms of Service, including violation of the EAUP (referenced below). You are not entitled to a credit for downtime or outages resulting from denial of service attacks, virus activity, hacking attempts, or any other circumstances that are not within our control. In addition, to receive a credit, you must request a credit by creating a support ticket in the UniOne control panel within thirty (30) days following the end of the downtime. You must show that your use of the Services was adversely affected in some way as a result of the downtime to be eligible for the credit. Notwithstanding anything in these Terms of Service to the contrary, the maximum total credit for the monthly billing period, including all guaranties, shall not exceed 100% of the fees for that billing period. Credits that would be available but for this limitation will not be carried forward to future billing periods.
Delivery & Filtering. UniOne will use commercially reasonable efforts to deliver your email messages, but UniOne does not guarantee delivery. Third party filtering services and other policies of recipient email services may prevent successful delivery of your messages. While the UniOne does provide some email filtering services designed to filter spam it does not provide virus scanning and UniOne recommends that you employ additional security measures to protect against spam, email phishing attempts and email infected with viruses. You acknowledge that the limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. UniOne is not responsible for any damages arising from the failure of the UniOne’s filtering services to filter unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient.
Anti-Spam Measures. UniOne reserves the right to take any and all measures it deems necessary or appropriate in its sole discretion (whether legal, technical or otherwise) to prevent the Services from being used to send unsolicited email (i.e. "spam") and to address complaints by third parties regarding the sending of such email. Without limitation, you agree that UniOne may in its sole discretion suspend or cancel your account if it suspects that your account is being used to send unsolicited email.
3. USE OF SOFTWARE
Generally. You may use the Services for commercial purposes only and may not use the Services in any situation where failure or fault of the Services or the Customer Configuration could lead to death or serious bodily injury of any person or physical or environmental damage. You will enable UniOne’s reasonable method for access to the Customer Configuration for the purpose of performing the Services and invoicing. You must cooperate with UniOne’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement. You are responsible for keeping your account permissions, billing, and other account information up to date. You agree that your use of any Customer Configuration provided by UniOne will comply with the EAUP. You agree that you are solely responsible for the suitability of the Services and your compliance with any applicable laws, including export laws and data privacy laws.
Documentation. You agree to comply with the UniOne Guidelines and agree that UniOne may establish new procedures and Guidelines for your use of the Services as UniOne deems necessary for the optimal performance of the Services. An individual email message may not exceed the per-message size limit (including attachments) of 10MB or it will not be sent and may be permanently lost.
Data Backup. UniOne shall only back up data to the extent stated on an Order. It is your responsibility to ensure the integrity and security of Customer Data and to regularly backup and validate the integrity of backups of Customer Data on an environment separate from the Customer Configuration.
Rules of Use and Permitted Uses. You agree that you will at all times use the Services in a manner consistent with: these Terms, the EAUP and other applicable rules, policies, and guidelines established by UniOne in respect of the Services. Misuse or unauthorized use of the Services and its related systems or networks, or of any information or material available through the Services is strictly prohibited and UniOne reserves the right, at its sole discretion and without liability or prejudice to any other remedies that it may have, to immediately suspend or cancel the account of any user who is using, or who UniOne reasonably believes is using, the Services in violation of these Terms.
Compliance with Laws. You represent and warrant that your use of the Services will comply with all applicable laws and regulations, including without limitation, all applicable anti-spam and privacy laws (collectively, the "Regulations"). For greater certainty, the Regulations may include depending upon your use of the Services, but will not necessarily be limited to, CAN-SPAM, CASL, and GDPR. You will be solely responsible for determining whether the Services as used by you comply with the Regulations, and you acknowledge and agree that UniOne will not be liable for any use of the Services by you that violates the Regulations.
Consents. You further represent and warrant that you will not send any emails other than Transactional Messages (as defined below) unless the email recipients have provided you with valid consent under the Regulations to receive communications from you.
Transactional Messages. The Services may allow you to send Transactional Messages. "Transactional Messages" are defined as communications that are sent in response to an action by an email recipient related to a product or service offered by you (e.g. a confirmation email sent in response to a purchase of a product or service through your App or website) or that concern the ongoing use, purchase or subscription by an email recipient of a product or service offered by you. You must not send Transactional Messages that are bulk messages or messages that have a purpose of encouraging participation in a commercial activity.
Suspension of Services. UniOne may suspend the Services without liability if: (i) UniOne reasonably believes that the Services are being used in violation of the Agreement or EAUP; (ii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on the Services or your Services are accessed or manipulated by a third party without your consent, (iv) UniOne is required by law or by a regulatory or government body to suspend the Services, or (v) there is another event for which UniOne reasonably believes that the suspension of the Services is necessary to protect the UniOne network or our other customers. You agree that if the Services are reinstated after a suspension for non-payment or for your breach of the Agreement (including the EAUP), you will pay a reinstatement fee of $75.
UniOne offers a range of subscription plans to its Services, including, without limitation, a "StartUp" plan, a "Small" plan, a "Medium" plan, a "Large" plan, a "Huge" plan and an "Enterprise" plan. As an express condition of your use of and access to the Service, you agree to pay all fees applicable to your subscription plan (your "Plan"), any other fees for additional services you may purchase, and any applicable taxes in connection with your use of the Service. To view the specific details of your Plan, including pricing information and the commencement date of your next renewal period, visit the UniOne, login at https://cp.unione.io/en/user/auth/login/ and from the sidebar navigation select “Billing”, then “Subscription”, after logging in.
The UniOne Service is priced based on usage, determined by the number of emails sent by you during each monthly subscription period. With respect to each such subscription period UniOne will not, and will have no obligation to, collect, maintain, provide or analyze any further information relating to your email campaigns, provide email statistics reports or provide information or reports once your current Plan period ends (i) reach the maximum number of emails sent for your subscription period, as specified in your Plan. Any unused emails included in your Plan shall be discarded at the end of each subscription period and UniOne will not carry them over to the next period or reimburse the cost thereof.
In case you want to change the Plan and you have any unused emails in your current Plan then the new Plan will be applied only when you have sent all the emails or when your current Plan period ends. If you have no unused emails, the new plan will be applied immediately.
If you exceed the number of emails included in the Plan anytime during the subscription period, additional emails can be purchased at the price specified for each Plan.
Changes in Fees
We may, upon any notice required by applicable law, change the fees for the Service at any time or require new fees or charges. Such changes will be effective immediately upon posting on Site; provided, however, that such fee changes will be effective only as to prospective Service orders (including renewals) accepted by UniOne after the effective date of such change. Please be aware that any discounts applicable to previous subscriptions may not apply to renewed subscriptions.
Payment of Fees
Your Plan, which may start with a Free Plan or a Plan with a free trial period (StartUp Plan, as described below), will renew automatically and continue month-to-month or year-to-year (depending on your Plan) unless and until you cancel your Plan or we terminate it, in each case pursuant to the terms of this Agreement (see sub-section Account Cancellation and Section 5 (Term and Termination)). You must cancel your Plan before it renews in order to avoid fees due under the next billing cycle. To view the specific details of your Plan, including the commencement date of your next renewal period, visit the UniOne Site, login at https://cp.unione.io/en/user/auth/login/ and from the sidebar navigation select “Billing”, then “Subscription”, after logging in. We will bill the fees due under your Plan to the credit card you provide to us during registration (or to a different credit card if you change your payment information). You acknowledge that the amount billed for each renewal period may vary due to promotional offers, changes in your Plan, and changes in applicable taxes, and you authorize us to bill you the corresponding amounts.
We reserve the right to deactivate your access to the Service for failure to pay applicable fees as described in this Agreement. Unless otherwise stated, all fees are stated in U.S. Dollars.
Credit Card Payments
All fees for your Plan will be billed to your credit card. You authorize the card issuer to pay any amounts described herein and in your Plan and authorize us (or a billing agent acting on our behalf) to continue charging all such amounts to your credit card account until you or we cancel or terminate your Plan as provided herein or these amounts are paid in full, whichever is later. You must provide current, complete and accurate billing and credit card information. You must promptly update all billing information (such as billing address, card number and expiration date) to keep your account current, complete and accurate, and you must promptly notify UniOne if your credit card is lost or stolen, or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your username or password). You authorize us to obtain updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you as a replacement. If payment is not received from your credit card issuer, you agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney's fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. Please check with your bank and credit card issuer for details.
You agree not to register more than one account with UniOne using same credit card. We reserve the right to deactivate your access to the Service for using same credit card for payment for UniOne subscription (or activation of StartUp Plan).
Payment Terms, Refunds, and Upgrade and Downgrade Terms
The fees for your Plan are billed in advance, are non-refundable, and automatically renew on a monthly or annual basis, as specified in your Plan. No refunds or credits will be provided for partial months of the Service, upgrades/downgrades, or for months unused with an open account.
If you downgrade your Plan level, your credit card will automatically be charged the new rate beginning with your next billing cycle. Downgrading your Plan may cause the loss of account content, features, or capacity. UniOne does not accept any liability for such loss.
If you upgrade your Plan level, your credit card will be charged a new full amount of the new rate beginning with your next billing cycle.
The only valid method for canceling your Plan is via the upgrade or downgrade to the respective Plan on the “Billing", “Subscription” page, accessible after logging in to UniOne. Requests to cancel by e-mail or customer support are not considered, and do not accomplish, cancellation.
StartUp Plan / Free Trial
UniOne offers, during the registration process, a StartUp Plan that includes a one-time free trial period during which you can try out the Service for 4 months from the date you activate the StartUp Plan ("StartUp Plan Trial"). To view the specific details regarding your StartUp Plan Trial, if any, visit the UniOne, login at https://cp.unione.io/en/user/auth/login/ and from the sidebar navigation select “Billing”, then “Subscription”, after logging in.
If you participate in a StartUp Plan Trial, you must cancel the Service by the end of the StartUp Plan Trial to avoid incurring any charges. If you do not cancel the Service before the StartUp Plan Trial expires, you authorize us to charge your credit card the full cost of your StartUp Plan, as described to you during the registration process. Your Plan will then automatically renew and continue month-to-month or year-to-year (depending on your Plan), unless and until you cancel your Plan or we terminate it (see Account Cancellation above and Section 12 (Term and Termination)). You will not receive a notice from UniOne that your StartUp Plan Trial is about to end or has ended.
During the StartUp Plan activation, the available balance or credit limit on the credit card provided during the registration process may be reduced to reflect the pre-authorization of certain de minimis charges related to your Plan; however, no charges will be made against your credit card unless you do not cancel prior to the end of your StartUp Plan Trial.
You may cancel your StartUp Plan at any time during the StartUp Plan Trial by following the steps described in sub-section Account Cancellation above.).
UniOne reserves the right to modify, cancel and/or limit the StartUp Plan Trial offer at any time.
All amounts due to UniOne under the Agreement are exclusive of any value added, goods and services, sales, use, property, excise and like taxes, import duties and/or applicable levies (collectively, “Tax"). You must pay UniOne the Tax that is due or provide UniOne with satisfactory evidence of your exemption from the Tax in advance of invoicing. You must provide UniOne with accurate and adequate documentation sufficient to permit UniOne determine if any Tax is due. All payments to UniOne shall be made without any withholding or deduction for any taxes except for withholding (or similar) taxes imposed on income that may be attributable to UniOne in connection with its provision of the Services that you are legally required to withhold and remit to the applicable governmental or taxing authority (“Local Withholding Taxes"). You agree to timely provide UniOne with accurate factual information and documentation of your payment of any such Local Withholding Taxes. UniOne shall remit such cost to you in the form of a credit on your outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes.
If you have a Monthly Subscription, we do not offer any refund for partial or no usage during the month. For Annual Subscriptions paid upfront, upon request, we will refund your Subscription fee for the remaining months in your subscription period on a pro-rata basis based on the applicable monthly subscription fee prevailing at that time for the months Service was used. In addition, a 1 month cancellation fee will be levied based on the then applicable monthly subscription fee. The usage months will be computed based on active subscription of at least 1 day within the billing month.
Refunds will be issued to the purchasing Payment Method. Subscription fees charged prior to the effective date of cancellation will not be refunded, in whole or in part. Upon refund of your fee, you will no longer have access to Services according to your Plan and will be automatically downgraded to the Free access tier within the Plan Category initially subscribed to. Eg. Individual Annual Plan subscribers will be downgraded to Individual Free Plan. To request a refund, please send us a request through the Control Panel.
5. TERM AND TERMINATION
Term. The Agreement shall continue until terminated in accordance with its terms or the termination of the final Order, whichever is the later. Unless otherwise stated in the applicable Order, each Plan has an initial 30-day term and shall automatically renew on initial term expiry on a rolling thirty day basis unless either party provides the other with written notice of non-renewal at least thirty days prior to the expiration of the then current term.
Termination for Convenience. For Recurring Services, unless otherwise stated in the Agreement, you may terminate all or part of any Order for convenience at any time by giving UniOne at least ninety days advance written notice; subject to an early termination fee equal to the monthly recurring fee times the number of months remaining in the then current term of the Order for the Services that have been terminated.
Termination for Cause. Either party may terminate the Agreement or the affected Order(s) for cause on written notice if the other party materially breaches the Agreement and, where the breach is remediable, does not remedy the breach within thirty days of the non-breaching party’s written notice describing the breach.
If following suspension of your Services for non-payment your payment of any invoiced undisputed amount remains overdue for a further ten days, UniOne may terminate the Agreement or the applicable Order(s) for breach on written notice.
Either of us may terminate the Agreement and the Order(s) on written notice if the other enters into compulsory or voluntary liquidation, or ceases for any reason to carry on business, or takes or suffers any similar action which the other party reasonably believes means that it may be unable to pay its debts.
Notwithstanding anything to the contrary in the Agreement, the fees for the Services shall become due immediately on such an occurrence.
6. INTELLECTUAL PROPERTY
Pre-Existing. Each party shall retain exclusive ownership of Intellectual Property created, authored, or invented by it prior to the commencement of the Services. If you provide UniOne with your pre-existing Intellectual Property ("Customer IPR"), then you hereby grant to UniOne, during the term of the applicable Order, a limited, worldwide, non-transferable, royalty-free, right and license (with right of sub-license where required to perform the Services) to use the Customer IPR solely for the purpose of providing the Services. You represent and warrant that you have all rights in the Customer IPR necessary to grant this license, and that UniOne’s use of such Customer IPR shall not infringe on the Intellectual Property rights of any third party.
Created by UniOne. Unless otherwise specifically stated in the applicable Order, and excluding any Customer IPR, UniOne shall own all Intellectual Property created as part of providing the Services or contained in the Deliverables. Unless otherwise specifically stated in the Agreement, and subject to your payment in full for the applicable Services, UniOne grants to you a limited, non-exclusive, non-transferable, royalty-free right and license (without the right to sublicense) to use any Deliverables, and during the term of the Order any Intellectual Property (excluding any Third Party Software and any Open Source Software), provided to you by UniOne as part of the Services for your internal use as necessary for you to enjoy the benefit of the Services.
Open Source. In the event UniOne distributes any open source software to you as part of the Services (for example Linux, OpenStack, and software licensed under the Apache, GPL, MIT or other open source licenses, collectively "Open Source Software") then such Open Source Software is subject to the terms of the applicable open source license. To the extent there is a conflict with these Terms of Service, the terms of the applicable open source license shall control.
Third Party Software. UniOne may provide third party software for your use as part of the Services or to assist in our delivery of the Services ("Third Party Software"). Unless otherwise permitted by the terms of the applicable license you may not (i) assign, grant or transfer any interest in the Third Party Software to another individual or entity, (ii) reverse engineer, decompile, copy or modify the Third Party Software, (iii) modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third Party Software, or (iv) exercise any of the reserved Intellectual Property rights provided under the laws governing this Agreement. You may only use Third Party Software provided for your use as part of the Services (identified on the Order) on the Customer Configuration on which it was originally installed, subject to any additional restrictions identified in these Terms of Service or Order. You are prohibited from using Third Party Software which UniOne installs in order to assist our delivery of the Services. Upon termination of the Order, you will permit removal of the Third Party Software. UniOne makes no representation or warranty regarding Third Party Software except that UniOne has the right to use or provide the Third Party Software and that UniOne is in material compliance with the applicable license.
Infringement. If the delivery of the Services infringes the intellectual property rights of a third party and UniOne determines that it is not reasonably or commercially practicable to obtain the right to use the infringing element, or modify the Services or Deliverable such that they do not infringe, then UniOne may terminate the Order on thirty (30) days’ notice and will not have any liability on account of such termination except to refund amounts paid for unused Services (prorated as to portions of Deliverables deemed infringing).
Content Privacy. You acknowledge and understand that the Services include the transmission of unencrypted email in plain text over the public internet. You are responsible for encrypting any sensitive data you use in conjunction with the Services. Email sent using the Services may be unsecured, may be intercepted by other users of the public internet, and may be stored and disclosed by third parties (such as a recipient’s email service provider). Although Services include support for TLS, content may be transmitted even if the recipient does not also support TLS, resulting in an unencrypted transmission.
UniOne makes no commitment to provide any services other than the Services stated in the Order. UniOne is not responsible to you or any third party for unauthorized access to your Customer Data or for unauthorized use of the Services that is not solely caused by UniOne’s failure to meet its security obligations in Section 7 (Security). At your request UniOne may provide services that are not required by the Agreement, any such services shall be provided AS-IS with no warranty whatsoever.
UniOne and its Representatives disclaim any and all warranties not expressly stated in the Agreement to the maximum extent permitted by law including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose and non-infringement.
UniOne makes no representation or warranty whatsoever regarding Open Source Software or with regard to any third party products or services which UniOne may recommend for your consideration.
Generally. Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, the exercise of its legal rights under this Agreement, or as required by law, and will use reasonable care to protect Confidential Information from unauthorized disclosure. Each party agrees not to disclose the other’s Confidential Information to any third party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in these Terms of Service; (ii) as required by law; or (iii) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice.
Routing Data. Your email messages and other items sent or received via the mail service will include information that is created by the systems and networks that are used to create and transmit the message including information such as server hostnames, IP addresses, timestamps, mail queue file identifiers, and spam filtering information ("message routing data"). You agree that UniOne may view and use the message routing data for our general business purposes, including maintaining and improving security, improving our services, and developing products. In addition, you agree that UniOne may disclose message routing data to third parties in aggregate statistical form, provided that UniOne does not include any information that could be used to identify you.
Usage Data. UniOne collects and stores information related to your use of the Services, such as use of the Website, API, SMTP and filtering choices and usage. You agree that UniOne may use this information for our general business purposes and may disclose the information to third parties in aggregate statistical form, provided that UniOne does not include any information that could be used to identify you.
10. LIMITATIONS ON DAMAGES
Direct Damages. Notwithstanding anything in the Agreement to the contrary, except for liability arising from death or personal injury caused by negligence, willful misconduct, fraudulent misrepresentation or any other loss or damages for which such limitation is expressly prohibited by applicable law, the maximum aggregate monetary liability of UniOne and any of its Representatives in connection with the Services or the Agreement under any theory of law shall not exceed the total amount paid for the Services that are the subject of the claim in the twelve months immediately preceding the event(s) that gave rise to the claim.
Indirect Damages. Neither party (nor any of our Representatives) is liable to the other for any indirect, special, incidental, exemplary or consequential loss or damages of any kind. Neither of us is liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages or for any loss of profits, data, revenue, business opportunities, customers, contracts, goodwill or reputation.
SLA Credits. The credits stated in any applicable SLA are your sole and exclusive remedy for UniOne’s failure to meet those guarantees for which credits are provided. The maximum total credit(s) for failure to meet any applicable SLA for any calendar month shall not exceed one hundred (100) percent of the then current monthly recurring fee for the Services. Credits that would be available but for this limitation will not be carried forward to future months. You are not entitled to a credit if you are in breach of the Agreement at the time of the occurrence of the event giving rise to the credit until you have remedied the breach. No credit will be due if the credit would not have accrued but for your action or omission.
You acknowledge that the Services, Sites, UniOne Software, and the databases, software, hardware and other technology used by or on behalf of UniOne to provide the Services and operate the Sites (the "Technology") and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of the Company and UniOne. You will not, and will not permit any third party to: (1) access or use the Services or the Sites, in whole or in part, except as expressly provided in this Agreement; (2) use the Site, Services or any Software to harvest or collect e-mail addresses or other contact information of third parties by any means for the purposes of sending unsolicited e-mails or other unsolicited communications; (3) use the Site, Services or any Software in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Services; (4) use automated scripts to collect information from or otherwise interact with the Site, Services or any Software; (5) use the Site, Services or any Software to intimidate or harass any other people or entities; alter, modify, reproduce, create derivative works of the Services, Technology, or any Software; (6) distribute, sell, resell, lend, loan, lease, license, sub-license or transfer any of Your rights to access or use the Services or any Software, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Services or any Software, or access thereto, available to any third party; (7) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Site, Services, Technology or any Software; (8) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Sites, Services, Technology, or any Software; or (9) interfere in any manner with the operation or hosting of the Sites, Services, Technology or any Software, or attempt to gain unauthorized access to the Sites, Services, Technology or any Software. You will not allow any access to or use of the Services by anyone other than Your authorized Customers, and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement.
By UniOne. Except in the case of any Services provided during a Trial/Free Subscription or StartUp Plan Trial, UniOne will, at its expense, defend You against any claims brought against You by a third party that Your use of the Services in accordance with this Agreement infringes any copyright, trade secret or trademark right. The foregoing obligations of UniOne under this Section 12 are conditioned upon You providing UniOne with: (a) notice of any such claim within ten (10) days after You receive written notice thereof; (b) sole control over the defense and settlement of such claim; and (c) reasonable assistance (at UniOne’s expense) in the defense and settlement of such claim. If You are, or UniOne reasonably believes You may be, enjoined from using the Services, UniOne, at UniOne’s option and expense, may procure the right for You to continue using the Services, replace or modify the Services so that they become non-infringing, or provide You a refund of all pre-paid amounts applicable to such Services (if any) and terminate this Agreement with respect to such Services. This Section 12 constitutes sole and exclusive liability of the Company, and Your sole and exclusive remedy, for any infringement or misappropriation of any third party IPR by or through the Site, Services, Technology, UniOne Content or any Software.
By You. You hereby indemnify, defend, and hold harmless UniOne and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest ("Indemnified Parties") from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from Your accessing or using the Site, Services, Software, Your Content, UniOne Content, any email or other communication generated or sent through the Services, or any breach of this Agreement. UniOne will provide You with notice of any such claim or allegation, and UniOne will have the right to participate in the defense of any such claim at its expense.
13. LIMITATION ON LIABILITY.
IN NO EVENT WILL UNIONE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE SITES, SERVICES (OR ANY UNIONE CONTENT PROVIDED THROUGH THE SITES OR SERVICES), EVEN IF UNIONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. UNIONE’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO UNIONE HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $100). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT UNIONE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, UNIONE’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14. DATA PRIVACY.
Email Record Retention. You acknowledge and agree that UniOne may, in its sole discretion, permanently erase email records (e.g. copies of emails sent and certain information relating to sent emails) after thirty-five (35) days of such emails being sent, and UniOne has no obligation to retain such records beyond the thirty-five (35) day period.
User Content Retention. UniOne may, in its sole discretion, permanently erase any User Content and any other information or materials associated with your account if your account is suspended or cancelled for thirty (30) days or more.
15. API TERMS
No Abuse or Overuse of the API. Abuse or excessively frequent requests to UniOne via the API may result in the temporary or permanent suspension of your account's access to the UniOne API. UniOne, in our sole discretion, will determine abuse or excessive usage of the API. We will make a reasonable attempt to warn you via email prior to suspension. You may not share API tokens to exceed UniOne's rate limitations. You may not use the UniOne API for spamming purposes.
16. LINKED SITES AND INFRINGEMENT CLAIMS.
The Site and communications sent through the Services may contain links to third-party sites that are not under the control of UniOne, and UniOne is not responsible for any content on any linked site. If you access a third-party site from the Site or from a communication sent through the Services, then you do so at your own risk. UniOne provides links only as a convenience, and the inclusion of the link does not imply that UniOne endorses or accepts any responsibility for the content on those third-party sites. UniOne welcomes links to the Site.
Claims of Infringement. Just as UniOne requires users of the Site to respect the IPR of UniOne, its affiliates, and other third parties, UniOne respects the IPR of Customers of the Site and other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Site without authorization in a way that constitutes copyright infringement, You may notify our designated copyright agent by mail to:
ECOMZ Holding Limited
Address: Gladstonos 12-14, 8046, Paphos, Cyprus
Attn: Copyright Infringement Agent
E-mail: [email protected]
Please provide the following information to UniOne’s Copyright Infringement Agent:
- the identity of the infringed work, and of the allegedly infringing work;
- Your name, address, daytime phone number, and email address, if available;
- a statement that You have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the Law;
- a statement that the information in the notification is accurate and, under penalty of perjury, that You are authorized to act on behalf of the owner; and
- 5. Your electronic or physical signature.
Your routine communications to UniOne/Company regarding the Services should be sent to your account team using the Control Panel. To give a notice regarding termination of the Agreement for breach, indemnification, or other legal matter, you must send it by electronic mail and first-class post to:
ECOMZ Holding Limited
Address: Gladstonos 12-14, 8046, Paphos, Cyprus
E-mail: [email protected]
UniOne’s routine communications regarding the Services and legal notices will be posted on the Control Panel or sent by email or post to the individual(s) you designate as your contact(s) on your account. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
18. PUBLICITY, USE OF MARKS
Unless otherwise agreed in the Order, you agree that UniOne may publicly disclose that it is providing Services to you and may use your name and logo to identify you in promotional materials, including press releases. You may not issue any press release or publicity regarding the Agreement, use the UniOne name or logo or other identifying indicia, or publicly disclose that it is using the Services without UniOne’s prior written consent.
Neither party may assign the Agreement or any Orders without the prior written consent of the other party except to an Affiliate or successor as part of a corporate reorganization or a sale of some or all of its business, provided the assigning party notifies the other party of such change of control. UniOne may use its Affiliates or subcontractors to perform all or any part of the Services, but UniOne remains responsible under the Agreement for work performed by its Affiliates and subcontractors to the same extent as if UniOne performed the Services itself. You acknowledge and agree that Company’s Affiliates and subcontractors may be based outside of the geographic jurisdiction in which you have chosen to store Customer Data and if legally required the parties will enter into good faith negotiations of such agreements as are necessary in order to legitimize the transfer of Customer Data.
20. FORCE MAJEURE
Neither party will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond its control, such as significant failure of a part of the power grid, failure of the Internet, natural disaster or weather event, war, riot, insurrection, epidemic, strikes or labor action, terrorism, or other events beyond such party’s reasonable control, provided that such events last no more than thirty days.
21. GOVERNING LAW
The Agreement shall be governed by the laws of Cyprus without regard to its choice or law or conflict of law’s provisions. All legal actions in connection with the Agreement shall be brought in the courts located in Nicosia, Cyprus. Any legal actions in connection with the Agreement where the Customer is located within the United States shall be brought in the courts located in Manhattan, New York, NY, USA.
Notwithstanding the exclusive jurisdiction provision above, you agree that UniOne may seek to enforce any judgment anywhere in the world where you may have assets. No claim may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that neither UniOne or Customer will bring a claim under the Agreement more than two years after the time that the claim accrued. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
The prevailing party in any action or proceeding relating to this Agreement shall be entitled to recover reasonable legal fees and costs, including attorney’s fees.
Changes. UniOne reserves the right to modify, supplement or replace these Terms, effective upon posting an amended version on the Site or notifying you otherwise. Your continued use of the Services following the posting of changes to these Terms or receipt of notice will mean that you accept and agree to such changes. You are responsible for regularly consulting the current version of the Terms prior to your use of the Services.
Severability. If any part of the Agreement is found unenforceable, the rest of the Agreement will continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the Agreement. Each party may enforce its respective rights under the Agreement even if it has waived the right or failed to enforce the same or other rights in the past. The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other and neither party has the right to bind the other on any agreement with a third party. The use of the word "including" means "including without limitation".
Survival. The following provisions in these Terms of Service shall survive expiration or termination of the Agreement: Intellectual Property, Confidential Information, Indemnification, Limitation on Damages, Governing Law, Notices, Miscellaneous, all terms of the Agreement requiring you to pay any fees for Services provided prior to the time of expiration or termination, or requiring you to pay an early termination fee, and any other provisions that by their nature are intended to survive expiration or termination of the Agreement.
The Agreement constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral.