This page contains the Terms of Service for:
1. Malibu.com Customers to purchase and use Email Hosting Services;
By initiating an order with Malibu.com you are promising:
In this Terms of Service the following terms will be used and have the subsequent definitions assigned to them:
Malibu.com may modify this Agreement at any time. Customer can reference http://www.malibu.com/base/tos.aspx for the most current version of this Agreement. Malibu.com will provide the date for the most recent modifications on the website. Material changes, as determined by Malibu.com, will be noticed to Customer using any of the contact methods provided by Customer. The Customer's continued exercise of the rights provided by this Agreement, for five business days after notice of the modification is given (or after 90 days after notice is given in the case of modifications in pricing) will constitute an affirmative acknowledgement by the Customer that the Customer has read, understands and agrees with such modification at which time the modification shall be considered part of this Agreement.
This Agreement shall become effective as to each Customer on the Effective Date. The Period of performance of this Agreement will commence on the Effective Date and will continue for the Initial Period. Thereafter, this Agreement will automatically renew for successive Renewal Periods unless and until this Agreement is terminated as herein provided.
On or before the Effective Date Customer agrees to yearly term for this Agreement and a payment plan which will determine the amount and timing of Customer's payment obligations. The amount of such payments shall be determined according to the pricing schedule in effect on the Effective Date. These fees will remain in effect unless modified by Malibu.com in accordance with this Agreement. Customer's first payment shall be due on or before the Effective Date and remaining payments will be due and payable to Malibu.com in accordance with the selected payment plan, and will be automatically debited from such Customer's credit card prior to that date unless other payment arrangements are made with Malibu.com. Unless terminated in accordance with the other provisions of this Agreement prior to the expiration of the Initial Period or any Renewal Period this Agreement shall be automatically renewed for the same term and on the same payment plan as in effect for the immediately preceding term with the first payment hereunder due on or before the first day of the Renewal Period. Any payments not made when due will be subject to an interest charge of 2.5% per month, unless such rate of interest is not permitted by applicable law in which case, the interest charge will be the highest interest permitted by applicable law. If any required payment is not paid in full by Customer when due, Malibu.com may, in its sole discretion, disable Customer access to email until payment is received or this Agreement is terminated. Malibu.com reserves the right, in its sole discretion, to obtain a credit report on Customer at any time and from time to time.
Malibu.com may, without limiting or waiving any other right or remedy against Customer, set off against and apply to any amounts, which are due, and owing to Malibu.com by Customer all amounts due and owing by Malibu.com to Customer until all amounts owing to Malibu.com have been paid.
In the event that this Agreement is terminated or Customer elects not to renew Email Hosting Services, Malibu.com will work to ensure a smooth transition for Customer and Customer's data. Customer data is maintained on the Malibu.com Network for 10 days. Customer must request an export of their data within 10 days of notifying Malibu.com of the termination or non-renewal. Malibu.com will use commercially reasonable efforts to make the data available to Customer within 14 days of the request. Payment for any obligation owed by Customer to Malibu.com must be rendered prior to the transfer of Customer's data export to Customer.
Either Malibu.com or Customer, who is not in material breach of this Agreement, may terminate this Agreement by giving the other party at least 30 days prior written notice specifying the date of termination. A Customer who terminates pursuant to the immediately preceding sentence shall be eligible for a refund of any prepaid fees applicable to a period (measured in full months) after the effective date of such termination.
Exceptions to the thirty-day notice requirement include:
1. Malibu.com may terminate this Agreement with immediate effect if Customer violates provisions of Customer's Responsibilities or violates (or causes a violation of) Malibu.com's Acceptable Use Policy or breaches (or causes a breach of) Customer's confidentiality obligations.
2. Customer shall be deemed to have automatically terminated this Agreement if Customer fails to accept any proposed modification by Malibu.com.
3. In the case of Email Hosting Services, Customer may terminate this Agreement if Malibu.com fails to comply with the Uptime Guarantee according to the provisions provided therein.
In the event Malibu.com terminates this Agreement on account of a material breach, Customer shall not be entitled to a refund of any amounts previously paid.
Notwithstanding any termination or nonrenewal, this Agreement shall remain in effect only to the extent that, and only for as long as, it is necessary to provide the parties with the ability to enforce the rights and remedies that are intended to survive termination or nonrenewal.
Either party shall have the right to terminate this Agreement in the event either party (a) terminates or suspends its business, (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute, (c) becomes insolvent or becomes subject to direct control by a trustee, receiver or similar authority, or (d) has wound up or liquidated, voluntarily or otherwise.
Notwithstanding anything to the contrary stated herein, Malibu.com maintains all rights, title, and interest in the Email Hosting Services, and all software applications underlying such Email Hosting Services excluding any software applications acquired through commercial vendors or the open-source community. Customer may only use the Email Hosting Services for internal business purposes and may not use such services in a resale capacity or allow or share access to such services.
Malibu.com reserves all rights to use the Email Hosting Services in whatever manner it chooses, including provision of identical or similar services to other Malibu.com customers. Nothing herein shall be deemed to restrict such rights.
Malibu.com makes no promises or warranties that are not expressly provided in the other terms of this Agreement. In addition, Malibu.com does not warrant (a) that the functions contained in the Malibu.com Email Hosting Services provided will meet Customer's requirements or (b) that the operation of the Malibu.com Email Hosting Services or Email Marketing Services will be uninterrupted, accurate or error free.
EXCLUSION. THE WARRANTIES AND GUARANTEES EXPRESSLY PROVIDED IN THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, GUARANTEES AND CONDITIONS, EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT AND NONINFRINGEMENT.
In the event that any suit is brought based on a claim that the Email Hosting Services delivered by Malibu.com infringe any copyright, trade secret, patent or other property right of any third party, the exclusive remedy against and the only obligation of Malibu.com shall be for Malibu.com, at its sole option, (i) to defend Customer against, and if determined appropriate in sole and exclusive judgment of Malibu.com, settle a claim of infringement, all at the expense of Malibu.com, or (ii) to procure the right of Customer to continue to use the Malibu.com Email Hosting Services or Email Marketing Services at issue, or (iii) to replace or modify the infringing portion of the Malibu.com Email Hosting Services or Email Marketing Services at issue so that it becomes noninfringing or (iv) terminate Customer's use of the Malibu.com Email Hosting Services or Email Marketing Services at issue and refund three months of fees paid by Customer for using Malibu.com Email Hosting Services. Exclusions: Malibu.com shall not be liable for infringement claims based on (i) the combination, operation or use of Malibu.com Email Hosting Services or Email Marketing Services with hardware, data, content or software not supplied by Malibu.com; or (ii) modifications to the Malibu.com Software if the modifications were not made by Malibu.com.
Customer agrees to indemnify, defend and hold harmless Malibu.com and its directors, officers, employees and agents, against any and all losses, damages, liabilities, judgments, awards and costs (including legal and expert witness fees and expenses) arising out of or related to any breach by Customer of this Agreement or claims by third parties arising from Customer's (or in the case of a Reseller, it's Reseller Account's) use of Malibu.com Email Hosting Services provided by Malibu.com hereunder.
Notwithstanding anything to the contrary herein: (a) Malibu.com will not be liable for any losses, claims, expenses or damages arising out of use, or inability to use, the Email Hosting Services or Email Marketing Services; and (b) Malibu.com will not be liable for unauthorized access to or alteration, theft or destruction of Customer's (or in the case of a Reseller, its Reseller Accounts') data files, programs, procedures or information through accident, fraudulent means or devices, or any other method, unless such access, alteration, theft or destruction is caused as a result of Malibu.com gross negligence or intentional misconduct.
The entire Malibu.com liability and Customer's exclusive remedies against Malibu.com (whether in contract, tort, warranty, or otherwise) are set forth in this Agreement. The Malibu.com total liability to Customer for damages (regardless of the form of action, whether in contract, tort, warranty or otherwise) shall in no event exceed the fees for the Email Hosting Services paid by Customer to Malibu.com under this Agreement for the three month period immediately preceding the event which caused the damage or injury. In respect to any claim against Malibu.com in respect to any aspect of Email Hosting Services, the customer will indemnify and hold harmless Malibu.com from the same and all costs and expenses incurred by Malibu.com in connection therewith.
Malibu.com shall not be liable for any special, incidental, indirect or consequential damages or for loss of profit, revenue, or data, even if Malibu.com shall have been advised of the possibility of such potential loss or damages.
No assignment is allowed.
Except as expressly provided herein, no waiver, amendment, or modification of any provision of this Agreement shall be effective unless agreed to by both parties in writing. No failure or delay by either party in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy.
This Agreement comprises the complete, final and entire Agreement between Malibu.com and Customer and supersedes any and all prior agreements between the parties regarding the subject matter contained herein. Should any term of this Agreement be finally determined by a court of competent jurisdiction to be invalid, unenforceable or otherwise contrary to law and equity, the parties agree that such provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary to eliminate its invalidity or unenforceability, and that the other provisions of this Agreement shall remain unaffected. Each party agrees to pay all reasonable costs and expenses the other party incurs in successfully enforcing this Agreement, including expert witness and reasonable attorneys' fees.
Neither party shall be liable for any delay or failure in performance due to Force Majeure, which shall mean acts of God, earthquake, labor disputes, changes in law, regulation or government policy, riots, war, fire, flood, insurrection, acts of terrorism, sabotage, embargo, epidemics, acts or omissions of vendors or suppliers, transportation difficulties, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of a Web site or other occurrences which are beyond either party's reasonable control. In the event that Malibu.com is prevented or delayed in the delivery or installation of Malibu.com Email Hosting Services for reasons beyond its control, such delivery or installation shall take place as soon thereafter as is reasonably possible.
All notices to a party shall be in writing and shall be made either through email or U.S. mail, postage prepaid. Notices to Malibu.com should be directed to Malibu.com at the address below. Notices to the Customer will be sent to the Authorized Administrative Contact as reflected in Customer's account set up.
228 Commercial Street
Nevada City, CA 95959
Attn: Customer Relations
The parties may change the address or designated recipient of notices hereunder by giving the other party at least five days prior notice thereof. Notices by email shall be deemed given when sent unless an undeliverable response is received. Notices by U.S. mail shall be deemed given three days after being deposited in the mail regardless of whether actually delivered or returned as undeliverable.
The validity, construction, and performance of this Agreement shall be governed by the laws of the State of California, excluding that body of law known as conflicts of laws and the United Nations Convention on Contracts for the Sale of Goods. Malibu.com and Customer agree to submit to the exclusive jurisdiction of the Circuit Court located in Nevada County, California in any action or proceeding arising out of or relating to, this Agreement; and the parties waive all objections based on venue or forum non convenient with respect to such courts and they agree not to commence any legal or equitable proceeding in any other court. The parties further agree that any mediation arising out of or relating to, this Agreement shall take place in Nevada County, California.
Each party shall retain in confidence the terms of this Agreement and all proprietary and confidential information transmitted to the other that the disclosing party has identified in writing, or orally and then subsequently identified in writing, as being proprietary and/or confidential, and will make no use of such information except under the terms and during the Term of this Agreement. However, neither party shall have an obligation to maintain the confidentiality of information that (a) it has rightfully received from another party prior to its receipt from the disclosing party; (b) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence, (c) enters the public domain or becomes generally known to the public by some action other than breach of this Agreement by the receiving party; or (d) is independently developed by the receiving party. Each party shall safeguard proprietary and confidential information disclosed by the other using the same degree of care it uses to safeguard its own proprietary and confidential information but, in no event, shall use less than a reasonable degree of care. Each party's obligation under this paragraph shall extend for a period of three years following termination or expiration of this Agreement. A party shall be entitled to all legal and equitable remedies, including but not limited to injunctive relief, whether temporary, preliminary or final, without proof of actual damages. In the event of a termination of this Agreement, each party agrees to return to the other within 60 days of a request, any property, data sheets, schematics, samples, customer lists, confidential information, in whatever form or media which are used by a disclosing party or which are furnished to a recipient.
Subject to the terms of this Agreement Malibu.com will provide Email Hosting Services to Customers.Malibu.com acknowledges that each Customer will select a specific package of Email Hosting Services and Malibu.com will provide only those Email Hosting Services that Customer has selected to receive. Extra storage, customizable webmail sites, and other features may be available on an upgrade basis. Malibu.com is not responsible for providing any Customer with access to the Internet or paying for such services or for providing any equipment necessary to make a connection to the Internet, including but not limited to computers and network equipment.
If any information provided by Customer is false or inaccurate, Malibu.com retains the right to terminate the Customer's right to use the Email Hosting Services without prior notice or opportunity to cure.
Customer will adhere to the Malibu.com Acceptable Use Policy set forth at http://www.malibu.com/base/aup.aspx and incorporated herein by reference with respect to the use of the Email Hosting Services.
Guarantee by Malibu.com that the Email Hosting Services will be available 99% of the time during any calendar month, subject to and in accordance with the further provisions of this Agreement.
Malibu.com provides to Customers the Uptime Guarantee, also known as a Service Level Agreement ("SLA"), during any period in which a Customer may use the Email Hosting Services. The Uptime Guarantee includes only the functioning of all network infrastructures within the Malibu.com Network and does not include Scheduled Downtime. The Uptime Guarantee does not apply when Customer is unable to send and receive email as a result of a failure external to the Malibu.com Network or failures, irregularities or inconsistencies in Customer's connection to the Internet or in any systems or software outside of the Malibu.com Network.
If Malibu.com fails to meet the Uptime Guarantee during any calendar month, the Customer may request a refund in the amount equal to the percentage of Users that were adversely affected times ten percent (10%) of customer's monthly fee for each 30 (thirty) minutes of continuous downtime they experience less 99% of total time.. The refund will not exceed one hundred percent (100%) of Customer's monthly fee.
Refunds will be issued in the form of a credit towards Customer's next invoice, unless the affected month is Customer's last month of service, in which case the refund will be issued via check or credit card within 60 (sixty) calendar days from the end of the last service month.
If Malibu.com fails to comply with the Uptime Guarantee according to the provisions provided herein, Malibu.com will waive the 30 (thirty) day notification period for Termination, as outlined below.
Malibu.com provides filtering of Junk Email as a part of the Email Hosting Services. Some of this filtering may be turned off at Customer's option. Email messages that are identified to be viruses will be rejected or deleted. Email messages that are identified to be spam, phishing or other disruptive content will be rejected, deleted or tagged and delivered. Malibu.com makes reasonable efforts to configure its automated software to accurately identify all forms of Junk Email. However, Customer acknowledges and agrees that it is not possible to assure that Malibu.com will at all times accurately identify such content and that Malibu.com is not obligated to do so. Malibu.com does not guarantee that it will at all times accurately identify and block all (or any) of the Junk Email that Customer (or any Reseller Account) receives through the use of the Email Hosting Services. Malibu.com also does not guarantee that the emails that are identified or blocked by the filtering software truly contain Junk Email content. Customer acknowledges and agrees that Malibu.com shall have no liability to Customer or a third party (including in the case of a Reseller any Reseller Account) with respect to its Junk Email filter, any failure to receive any email as a result thereof, any receipt of Junk Email or the transmission of any viruses to Customer's or any other computer system or email program. Customer agrees to run a desktop virus scanner and firewall on computers that are connected to the Internet as an additional line of defense and to reduce the risk of systems being infected by viruses. Customer agrees to and understands the risks associated with using the Email Hosting Services and receiving and transmitting email messages via the Internet. Reseller shall insure that its Reseller Accounts understand and agrees to the limitations set forth in this Section as if they were a Customer of Malibu.com and shall hold Malibu.com harmless from any claim asserted by a Reseller Customer which could not be asserted by a Customer hereunder. Customer also acknowledges that email sent through Malibu.com may not reach the intended recipient. The same techniques that Malibu.com applies to protect you from Junk Email are used by third-parties. Malibu.com cannot guarantee successful delivery of all email messages, and makes no representation or warranty that such delivery will take place.
The Email Hosting Services have the fixed storage limit per mailbox, which Customer subscribes and pays for, and which can be upgraded for a fee. There is also a size limit per email message, which cannot be upgraded. Email messages when received may not be stored if the size of such email would put the destination mailbox over its storage limit or if the size of the message exceeds the per email message size limit. Malibu.com has no responsibility to and will not monitor the size of a mailbox in order to prevent it from reaching its storage limit. Customer understands and agrees that Malibu.com assumes no responsibility for the deletion of or failure to store email messages in excess of the agreed fixed storage limit.
Customer's email messages are backed up to Data Backups. The Data Backups consist of a snapshot of the contents within each mailbox at a specific moment in time. The Data Backups may not store every email that is transferred or received using the Email Hosting Service, but rather it stores a copy of the email messages that exist within each mailbox during the time the Data Backups are processed each day. Copies of email messages may remain in the Data Backups for approximately two (2) weeks even after the email messages are deleted from the mailbox. Authorized Malibu.com employees may access email messages in the Data Backups only to perform data restores and to verify that the Data Backups operations are occurring correctly.
In the event that email messages are deleted from a mailbox as a result of something other than a failure of the Malibu.com Network, and wishes for those email messages to be restored, a data restore may be requested from any of the still available recent Data Backups snapshots.
Customer will designate qualified personnel to act as liaisons between Customer and Malibu.com, and provide electronically or in writing to Malibu.com the name(s) of such currently designated personnel at all times.
Customer is solely responsible for Content , including any subsequent changes or updates. Customer represents and warrants that Content: (a) will not infringe or violate the rights of any third party including, but not limited to, intellectual property, privacy or publicity rights of others; (b) is not abusive, profane or offensive to a reasonable person; or (c) will not be hateful or threatening. Violations of the foregoing may result in early termination of Email Hosting Services by Malibu.com in the sole discretion of Malibu.com. Content shall mean and refer to the content of all emails through the Email Hosting Services.
Customer is solely responsible for the Content of its transmissions. Customer agrees that the transmission of technical data, which is exported from the United States through the Malibu.com Network, will comply with U.S. law regarding the same. Customer further agrees that the Malibu.com Email Hosting Services provided to Customer hereunder will not be used (a) for illegal purposes or (b) to interfere with or disrupt other network users, network services or network equipment. Interference or disruptions include, but are not limited to, distribution of unsolicited advertising or chain letters, propagation of computer worms and viruses, and use of the network to make unauthorized entry to any other machine accessible via the network. Violations of the foregoing may result in early termination of Email Hosting Services by Malibu.com in the sole discretion of Malibu.com.
Upon expiration or termination of this Agreement, Customer must discontinue use of the Email Hosting Services and relinquish use of the IP address or address blocks assigned to it by Malibu.com in connection with the Malibu.com Email Hosting Services, including pointing the DNS for Customer's domain name(s) away from Malibu.com services.
Customer is solely responsible for the administration of all end user login names and passwords for the purpose of authenticating and authorizing access to the Malibu.com Email Hosting Services. Malibu.com provides a Control Panel that allows Customers to administer most aspects of the Email Hosting Services, including but not limited to the end user login names and passwords. Customer are responsible to Malibu.com for maintaining the confidentiality of their Control Panel password and account and responsible for all activities (whether by Customer or by others) that occur under the Customer's password or account. Customer agrees to notify Malibu.com immediately of any unauthorized use of a password or account or any other breach of security. Malibu.com cannot and will not be liable for any loss or damage arising from the failure by a Customer to protect its password or account information.
Customer is solely responsible for handling all communication, technical support to and business relations with end users who Customer has authorized to use the Email Hosting Services, including but not limited to responding to inquiries and questions from end users.
Malibu.com generally performs all system maintenance activities during a scheduled maintenance window. These windows are necessary to upgrade the system components that allow Malibu.com to meet service level commitments. The maintenance windows are currently scheduled for Saturdays and Sundays from 12:00 a.m. to 4:00 a.m. EST, though not every maintenance window is utilized. The maintenance schedule can also change.
Malibu.com attempts to perform all maintenance without the need for service downtime. However, occasionally downtime is required. Malibu.com will schedule at most one maintenance window per quarter (3 consecutive calendar months) where downtime may accrue for core Email Hosting Services, which include SMTP, POP3, IMAP and webmail. Downtime for other services such as Control panel and API may occur during any maintenance window. If downtime is planned for any service during maintenance, Malibu.com will make an announcement prior to the date of activity.