CEMAPHORE SYSTEMS, INC. TERMS OF SERVICE

ACCEPTANCE OF TERMS.

The services that Cemaphore provides to you are subject to the following Terms of Service. Cemaphore reserves the right to update the Terms of Service at any time. The most current version of the Terms of Service can be reviewed by clicking on the "Terms of Service" hypertext link located at the bottom of our Web pages.
At the bottom of this form please indicate that you accept these Terms of Service by clicking "Accept" and you will be provided access to the Cemaphore web store where you may place your order. Please contact Cemaphore at Sales@cemaphore.com if you have questions.

1. Key Terms

1.1 The Service.
Cemaphore shall provide the MailShadow OnLine Service to the Customer in accordance with the terms and conditions of this Agreement:

1.1.1. Synchronizing Exchange with Exchange (On-premises or Hosted).
MailShadow will bi-directionally synchronize Customer's Microsoft Exchange mailboxes with hosted or on-premises Microsoft Exchange mailboxes, over the Internet, on a continuous basis, for the duration of the Service Term.

The MailShadow OnLine Service: All sync sessions are over encrypted links (SSL and/or secure IMAP). Customer agrees to provide the Service remote, programmatic read/write access to mailboxes solely for purposes of synchronizing mailbox content. Customer also agrees to provide a hostable, licensed version of Outlook 2007 (e.g. the license key for Office 2007 which includes Outlook 2007) for Cemaphore to use in the Service on behalf of Customer.

Scope of Synchronization INCLUDES the data types in the specified locations within each mailbox as indicated in the table below, and explicitly EXCLUDES those data and metadata indicated as "Out of Scope":

MailShadow: Scope of Synchronization - Exchange with Exchange (Onsite or Online)
Exchange Mailbox		Exchange or Exchange Online Mailbox
In Scope of Synchronization:
Inbox (plus subfolders) email	<- Syncs With ->	Inbox (plus subfolders) email
Sent Items email	<- Syncs With ->	Sent Items email
Other user-defined email folders	<- Syncs With ->	Other user-defined email folders
Calendar items in the default Calendar folder	<- Syncs With ->	Calendar items in the default Calendar folder
Other user-defined Calendar folders	<- Syncs With ->	Other user-defined Calendar folders
Contacts in the default Contacts folder	<-Syncs With->	Contacts in the default Contacts folder
Other user-defined Contacts folders	<- Syncs With ->	Other user-defined Contacts folders
Deleted Items	<- Syncs With ->	Deleted Items
Tasks	<- Syncs With ->	Tasks
Junk Mail	<- Syncs With ->	Junk Mail
Notes	<- Syncs With ->	Notes
Drafts	<- Syncs With ->	Drafts
Flags	<- Syncs With ->	Flags
Read/Unread state	<- Syncs With ->	Read/Unread state
Out of Scope of Synchronization:
Journal		Journal
Outbox		Outbox
RSS Feeds		RSS Feeds
Search Folders		Search Folders
Sync Issues Folders		Sync Issues Folders
Rules		Rules
Mailbox delegation		Mailbox delegation
Sharing and Permission settings		Sharing and Permission settings
Outlook personal folder (pst) or archive files		Outlook personal folder (pst) or archive files
Public folders		Public folders
Views		Views
Auto-archive settings		Auto-archive settings
Stationary		Stationary
Safe/Blocked Senders		Safe/Blocked Senders
Conditional Formatting		Conditional Formatting
Out of Office Messages		Out of Office Messages
Any Folder above Top of Information Store		Any Folder above Top of Information Store

1.1.2 Synchronizing Exchange with Google Apps

MailShadow will bi-directionally synchronize Customer's Microsoft Exchange mailboxes with Google Apps mailboxes, over the Internet, on a continuous basis, for the duration of the Service Term.

The MailShadow OnLine Service: All sync sessions are over encrypted links (SSL and/or secure IMAP). Customer agrees to provide the Service remote, programmatic read/write access to mailboxes solely for purposes of synchronizing mailbox content. Customer also agrees to provide a hostable, licensed version of Outlook 2007 (the license key for Office 2007 which includes Outlook 2007) for Cemaphore to use in the Service on behalf of Customer during the MailShadow Online Service.

Scope of Synchronization INCLUDES the data types in the specified locations within each mailbox as indicated in the table below, and explicitly EXCLUDES those data and metadata indicated as "Out of Scope":

MailShadow: Scope of Synchronization -Exchange with Google
Exchange Mailbox		Google Apps Mailbox
In Scope of Synchronization:
Inbox (plus subfolders) email	<- Syncs With ->	Inbox (plus sub-Labels) email
Sent Items email	<- Syncs With ->	Sent Mail email
Other user-defined email folders	<- Syncs With ->	Other user-defined email Labels
Calendar items in the default Calendar folder	<- Syncs With ->	Primary Calendar
Other user-defined Calendar folders	<- Syncs With ->	Secondary Calendars
Contacts in the default Contacts folder	<- Syncs With ->	Contacts
Other user-defined Contacts folders	<- Syncs With ->	Contacts (same as above)
Read/Unread state for email items	<- Syncs With ->	Seen/Unseen state for email items
Deleted Items	<- Syncs With ->	Trash
Junk Mail	<- Syncs With ->	Spam
Out of Scope of Synchronization:
Tasks		Tasks
Notes		N/A
N/A		All Mail
Search Folders		N/A
Outbox		N/A
Rules		Filters
Mailbox delegation		Mailbox delegation
Sharing and Permission settings		Sharing and Permission settings
Outlook personal folder (pst) or archive files		N/A
Exchange Public Folders		N/A

1.2 Delivery of the Service.

a. Start Date: Cemaphore shall commence the provision of the Service within 5 business days of receipt of payment from Customer.
b. Service Term: Cemaphore shall provide the service for the time period specified as part of the description of the service provided.

1.3 Service Level Agreement (SLA) for the Service.

1.3.1 SLA Definitions.

Paired Mailboxes(or Mailbox Pairing): A pair of mailboxes, typically on different servers, service providers, or in different locations, between which the Service synchronizes the data specified as "In Scope" within the Scope of Synchronization Table herein.

Initial Sync Period: Upon start-up, the Service will perform an initial synchronization of data between Paired Mailboxes. During the Initial Sync Period, the Service will synchronize all data (within the Scope of Synchronization) that existed in either mailbox at commencement of the Initial Sync Period. The Initial Sync Period ends when all the data that was present in both mailboxes at the time the Initial Sync began has been synchronized between the mailboxes. Note: The Service will also sync new changes during the Initial Sync Period; however, this is done in a "best effort" manner.

On-Going Sync Mode: After the Initial Sync has been completed, the Service will continue to perform an On-Going Sync of new changes (new data plus changes to existing data) between the paired mailboxes. This is defined as On-Going Sync Mode.

Change Detection Interval: The amount of time it takes for the Service to detect mailbox data changes when operating in On-Going Sync Mode against a given Mailbox Pairing.

Sync Time Performance: The amount of time it takes for the Service, after detecting a mailbox data change, to synchronize said change between Paired Mailboxes.

Bulk Mailbox Changes: A Bulk Mailbox Change is one wherein 50 or more items within a given mailbox have been changed in a single, bulk operation by an end user or 3rd party application. Examples of Bulk Mailbox Changes include bulk deletes, moves, and adds within an Outlook/Exchange mailbox folder, or deletion of an entire Outlook/Exchange folder. A Bulk Mailbox Change, when occurring during On-Going Sync Mode, can significantly impact Sync Time for new changes (e.g., new email received) during the period the Bulk Mailbox Change is being synchronized by the Service.

1.3.2 Service Availability SLA.

The Service will be Available 99.5% on a monthly basis for detection and synchronization of data changes between Paired Mailboxes, and for Initial Sync of Paired Mailboxes. The Service is considered "Available" if any of the following are true:

1. It is actively checking for changes in Paired Mailbox data at least once every 10 minutes, even if no changes have actually occurred.
2. It is actively synchronizing changes (i.e., adds, deletes, modifications) between Mailbox Pairings,
3. It HAS synchronized changes between Mailbox Pairings within the last 10 minutes.
4. It is performing an Initial Sync of any Paired Mailboxes.

1.3.3 Sync Time Performance SLA.

Actual Sync Time Performance for a given mailbox data change by the Service is dependent on several factors outside of Cemaphore's control, including Customer network bandwidth and network latency, 3rd-party Service Provider bandwidth and latency, size of individual data item being synced, whether an Initial Sync is underway, or whether Bulk Mailbox Changes are currently being processed by the Service. After initial sync is complete, data changes will be synchronized in 10 minutes or less. However, due to the number of variables outside of Cemaphore's control, Sync Time performance for the Service will be on a best effort basis.

 

1.3.4 SLA Exemptions.

The Service Availability SLA will not apply during the following circumstances:

1. During the Service implementation.
2. During scheduled Service maintenance downtime.
3. During periods where there are network problems or outages outside of Cemaphore's control that impact the Service's ability to remotely access the mailboxes over the Internet, including but not limited to the following:

a. Customer network, server, or firewall problems.
b. Problems with Customer's other 3rd party Service Provider(s) that are providing network services such as Internet access or mailbox hosting services.
c. Customer-caused outages or changes that deny the Service remote access to the Mailbox Pairing.

1.3.5 Scheduled and Emergency Maintenance.

Cemaphore reserves the right to perform routine, scheduled maintenance on the Service, and will provide 24-hours notice via email to Customer on any scheduled maintenance only if said maintenance is expected to result in greater than 30 minutes of planned downtime. Cemaphore also reserves the right to perform emergency maintenance on the Service in order to fix problems with the Service and will make a best effort to provide at least 15 minutes notice to Customer via email, only if it is expected to result in greater than 30 minutes of downtime.

 

1.3.6 SLA Remedy.

In the event Service Availability falls below the specified SLA in a given month, and it is determined that the reason for unavailability was within Cemaphore's control, then Customer shall be entitled to additional days of Service, added at the end of the Service term, at no additional cost, per the following schedule:

Availability	Service Credit
> 95.0 < 99.5%	3 days
< 95.0%	10 days

 

 

Service Credits are Customer's sole and exclusive remedy for any violation of this SLA. Claims for SLA Remedies must be submitted in writing by Customer within 60 days of the alleged SLA violation to be considered eligible for Service Credits.

Technical Support for the Service.

 

Cemaphore will provide Technical Support for the Service and will respond to Customer Support requests in accordance with the following hours of operations and methods of communication:

 

During business hours (10 minute response time)
Monday - Friday 8AM - 5PM MT (GMT - 7), except holidays.

Live chat with GoToAssist: http://www.cemaphore.com/support.php

 

Outside of business hours (4 hour response time)

Email: support@cemaphore.com

 

2. General Terms

2.1 Warranty. Cemaphore represents and warrants that:

a. It will perform the Service with commercially reasonable care and skill;
b. It will not use the mailbox login credentials to access Customer mailbox data other than for automated synchronization purposes by the Service. No Cemaphore employee or agent will access or view Customer mailbox data for any reason, unless explicitly requested by Customer for support purposes.
c. The Service provided by Cemaphore to Customer under this Agreement will not infringe or violate any intellectual property rights or other right of any third party.

2.2 Limitation of Liability.

a. Subject to Customer's obligation to pay the Total Price to Cemaphore, either party's liability in contract, tort or otherwise (including negligence) arising directly out of or in connection with this Agreement or the performance or observance of its obligations under this Agreement and every applicable part of it shall be limited in aggregate to the Total Price.
b. To the extent it is lawful to exclude the following heads of loss and subject to Customer's obligation to pay the Total Price, in no event shall either party be liable for any loss of profits, goodwill, loss of business, loss of data or any other indirect or consequential loss or damage whatsoever.
c. Nothing in this Clause 2.2 will serve to limit or exclude either Party's liability for death or personal injury arising from its own negligence.

2.3 Term and Termination.

a. This Agreement shall be effective on the date hereof and shall continue, unless terminated sooner in accordance with Clause 2.3(b), for 1 year, and will automatically renew on an annual basis except that:
b. Either Party may terminate this Agreement upon notice in writing if:

i. the other is in breach of any material obligation contained in this Agreement, which is not remedied (if the same is capable of being remedied) within 30 days of written notice from the other Party so to do; or
ii. a voluntary arrangement is approved, a bankruptcy or an administration order is made or a receiver or administrative receiver is appointed over any of the other Party's assets or an undertaking or a resolution or petition to wind up the other Party is passed or presented (other than for the purposes of amalgamation or reconstruction) or any analogous procedure in the country of incorporation of either party or if any circumstances arise which entitle the Court or a creditor to appoint a receiver, administrative receiver or administrator or to present a winding-up petition or make a winding-up order in respect of the other Party.

c. Any termination of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

2.4 Relationship of the Parties. The Parties acknowledge and agree that the Services performed by Cemaphore, its employees, agents or sub-contractors shall be as an independent contractor and that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the parties.

 

2.5 Confidentiality. Neither Party will use, copy, adapt, alter or part with possession of any information of the other which is disclosed or otherwise comes into its possession under or in relation to this Agreement and which is of a confidential nature. This obligation will not apply to information which the recipient can prove was in its possession at the date it was received or obtained or which the recipient obtains from some other person with good legal title to it or which is in or comes into the public domain otherwise than through the default or negligence of the recipient or which is independently developed by or for the recipient.

 

2.6 Notices. Any notice which may be given by a Party under this Agreement shall be deemed to have been duly delivered if delivered by hand, first class post, facsimile transmission or electronic mail to the address of the other Party as specified in this Agreement or any other address notified in writing to the other Party. Subject to any applicable local law provisions to the contrary, any such communication shall be deemed to have been made to the other Party, if delivered by:

a. First class post, 2 days from the date of posting;
b. Hand or by facsimile transmission, on the date of such delivery or transmission; and
c. Electronic mail, when the Party sending such communication receives confirmation of such delivery by electronic mail.

2.7 Miscellaneous.

a. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
b. If any part, term or provision of this Agreement is held to be illegal or unenforceable neither the validity nor enforceability of the remainder of this Agreement shall be affected.
c. Neither Party shall assign or transfer all or any part of its rights under this Agreement without the consent of the other Party.
d. This Agreement may not be amended for any other reason without the prior written agreement of both Parties.
e. This Agreement constitutes the entire understanding between the Parties relating to the subject matter hereof unless any representation or warranty made about this Agreement was made fraudulently and, save as may be expressly referred to or referenced herein, supersedes all prior representations, writings, negotiations or understandings with respect hereto.
f. Neither Party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control, including but not limited to acts of god, war, civil commotion or industrial dispute. If such delay or failure continues for at least 7 days, the Party not affected by such delay or failure shall be entitled to terminate this Agreement by notice in writing to the other.
g. This Clause 2.7(g) and Clauses 2.2, 2.4, 2.5, 2.6 and 2.7 of this Agreement shall survive any termination or expiration.
h. This Agreement shall be governed by the laws of the State of California and the parties agree to submit disputes arising out of or in connection with this Agreement to the courts in the State of California.