Terms of Service
Terms of Service
Thanks for choosing dmarcian! Please carefully read these terms of service as they form a part of the legal agreement between you and dmarcian. If you have any questions about these terms of service, please contact us at [email protected].
BY ACCEPTING THESE TERMS OF SERVICE, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THESE TERMS OF SERVICE, YOU AGREE TO THESE TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU“, “YOUR” OR “CUSTOMER” WILL REFER TO SUCH ENTITY AS APPLICABLE. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICE.
These terms of service including the URL links referenced herein (“Terms of Service”), together with the applicable Order(s) form the full legal agreement (the “Agreement”) between Customer and the dmarcian legal entity listed in the Order(“dmarcian”) regarding the Service and is made as of the date the Customer first completes an Order and accepts these Terms of Service (“Effective Date”). If you are a User of the Service on behalf of Customer, and dmarcian and Customer have entered into a separate written agreement regarding the Service which is signed by Customer and dmarcian, then the terms of that agreement (and not these Terms of Service) define the terms and conditions under which Customer and User is permitted to use the Service.
1. DEFINITIONS.
1.1. “Customer” means the person, company, or other legal entity on behalf of which the Order and these Terms of Service are accepted and to whom the Service will be provided.
1.2. “Customer Data” means all data and content submitted by Customer and processed or stored by the Service.
1.3. “Order” means an ordering document (online or otherwise) entered into between Customer and dmarcian specifying the Service to be provided, including any addenda, exhibits, schedules, and additional terms relevant to a specific Service referenced therein.
1.4. “Service” means dmarcian’s proprietary software as a service for domain-based message authentication, reporting, and conformance (DMARC) policy configuration, monitoring email authentication and delivery, analyzing DMARC reports, and assisting in the remediation of email authentication issues.
1.5. “dmarcian Data” means all software, content, documentation, and other data provided with the Website or Service, other than Customer Data.
1.6. “User” means an individual who is authorized by Customer to use the Service on its behalf and to whom Customer (or dmarcian at Customer’s request) has supplied a login ID and password (“User ID”). Users may include Customer’s employees, consultants, contractors, and agents, but may not include directly or indirectly any competitors of dmarcian.
1.7. “Website” means the URL https://dmarcian.com or such other URLs designated by dmarcian from time to time.
2. SERVICE.
2.1. Eligibility. To use the Service, Customer must: (a) be at least 18 years old if a natural person; (b) be legally able to enter into contracts; (c) complete an Order; and (d) accept these Terms of Service.
2.2. Ordering. Customer may complete an Order either through the automated signup process found on the Website or by executing a manual order form signed by customer. The specifics of Customer’s order will be set forth on one or more Orders that reference these Terms of Service. Customer’s execution of an Order and dmarcian’s acceptance of such Order constitute a binding commitment to purchase the services described on such Order under the terms and conditions of these Terms of Service.
2.3. Subscriptions. The Service is purchased as a subscription to access and use the Service, in accordance with the applicable Order, only during the Term.
2.4. Account. After Customer has completed its first Order under these Terms of Service, dmarcian will grant Customer a unique account to access the Service (an “Account”). Users authorized by Customer to access the Account will each be provided a separate User ID. A User ID may not be shared with any other individual. Customer is responsible for the confidentiality and use of all User IDs. Customer acknowledges that any transaction completed through Customer’s Account or under any User ID is deemed authorized by Customer. Customer remains solely responsible for all costs, fees, liabilities, and damages arising out of access to the Account through its User ID(s).
2.5. Term of Agreement. This Agreement commences on the Effective Date and continues until all Orders entered into under these Terms of Service have expired or have been terminated.
2.6. Term of Order. Customer’s subscription to the Service is as specified in the applicable Order (the “Initial Term”).
2.7. Service Provisioning. dmarcian will: (a) make the Service available to Customer pursuant to these Terms of Service and the applicable Order; and (b) provide technical support for the Service in accordance with Customer’s Service subscription. Customer is solely responsible for procuring, installing, and maintaining any hardware, software, or other equipment as may be necessary for Customer and its Users to connect to, access, and use the Service.
2.8. dmarcian Responsibilities. dmarcian will: (a) maintain a written and comprehensive information security program, which includes appropriate physical, technical, and administrative controls to protect the security, integrity, confidentiality, and availability of Customer Data including, without limitation, protecting Customer Data against any unauthorized or unlawful acquisition, access, use, disclosure, or destruction (the “Security Policy”), a summary of which is available at: https://dmarcian.com/security-and-compliance; (b) be responsible for the performance of the dmarcian personnel (including employees and contractors) and their compliance with dmarcian’s obligations under the Agreement; (c) make the Service available to Customer in accordance with Applicable Laws, when used according to these Terms of Service; and (d) comply with its Privacy Policy.
3. SERVICE USE.
3.1. Applicable Policies. In addition to these Terms of Service, Customer’s and its Users’ access to and use of the Service is subject to dmarcian’s privacy policy, available at: https://dmarcian.com/privacy-policy (the “Privacy Policy”).
3.2. Customer Responsibilities. Customer is responsible for all access to and use of the Service by Customer and its Users, and will: (a) access and use the Service only in accordance with this Agreement; (b) promptly notify dmarcian of any breach of security or unauthorized access or use of Customer’s Account or any loss or unauthorized disclosure of any User IDs; (c) comply with reasonable requests made by dmarcian regarding configuration of Customer’s Account to optimize performance of the Service generally; and (d) comply with all Applicable Laws in accessing and using the Service.
3.3. Restrictions. Customer will not: (a) sell, resell, license, sublicense, distribute, rent, lease, or otherwise make the Service directly available to any third party; (b) interfere with or disrupt the integrity or performance of the Service or third party data contained therein; (c) attempt to gain unauthorized access to the Service or its related systems or networks; (d) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or bypass or breach any security device or protection included in the Service; (e) copy the Service or any part, feature, function or user interface thereof; or (f) access the Service in order to build a competitive product or service or for other competitive purposes.
4. FEES AND PAYMENT.
4.1. Fees. Customer will pay all fees specified in all applicable Orders (“Fees”). Except as otherwise expressly specified herein or in an Order: (a) Fees are based on the Service subscribed to and the usage metrics specified in the applicable Order; (b) payment obligations are non-cancelable and Fees paid are non-refundable; and (c) the purchased Service subscription cannot be decreased during the relevant Term.
4.2. Invoicing and Payment. Unless the Order specifies otherwise, Fees are due net thirty (30) days from the billing date. Customer is responsible for providing complete and accurate billing and contact information to dmarcian and notifying dmarcian of any changes to such information. If Customer has specified credit card, or direct withdrawal or ACH payment from a bank account, as an applicable payment mechanism under this Agreement, Customer authorizes dmarcian or its applicable processing agent to charge the credit card, or debit the bank account, on file for all Fees due. If Customer is using a credit card, Customer represents and warrants that Customer is authorized to use that credit card, and that any and all Fees may be billed to that credit card and will not be rejected. If dmarcian is unable to process Customer’s credit card, dmarcian will try to contact Customer by email and may suspend Customer’s Account until payment is processed. Unless otherwise stated in the Order, all amounts payable will be United States Dollars.
4.3. Payment Disputes. In the event Customer disputes any portion of the Fees paid or payable by Customer (a “Payment Dispute”), Customer must provide written notice to dmarcian within seven (7) days of the billing (“Payment Dispute Period”) and the parties will work together in good faith to resolve the Payment Dispute promptly. If Customer does not provide written notice of the Payment Dispute within the Payment Dispute Period, Customer will not be entitled to dispute such Fees paid or payable.
4.4. Late Payments. Customer’s failure to pay any undisputed amounts due under this Agreement on a timely basis will be deemed a material breach of this Agreement. If any amount owed by Customer under this Agreement is overdue, dmarcian may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement so that all Fees become immediately due and payable. dmarcian will not exercise such acceleration right specified above if Customer timely exercises its right to dispute payments in accordance with Section 4.3 (Payment Disputes). If dmarcian must take action to collect overdue fees under this Agreement, Customer agrees to pay all reasonable costs and expenses incurred by dmarcian for collecting such overdue fees including, for example, collection fees, reasonable attorney fees and court costs.
4.5. Taxes. Fees do not include any taxes, levies, duties, or similar governmental assessments of any nature on the Service including, for example, value-added, sales, use, or withholding taxes assessable in any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchase(s) of the Service hereunder, excluding any taxes that relate to the income, property, or payroll of dmarcian. If Customer does not provide dmarcian with a valid tax exemption certificate authorized by the appropriate taxing authority and dmarcian pays Taxes for which Customer is responsible under this Section, dmarcian will bill Customer and Customer will pay that amount to dmarcian.
5. DATA.
5.1. Ownership of the Service. dmarcian (and its licensors, where applicable) will own all right, title and interest, including all inventions (whether patented or not), patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secrets, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world, in and to the Service and all modifications, extensions, customizations, scripts or other derivative works of the Service (“Intellectual Property Rights”). No such rights are granted to Customer hereunder other than as expressly set forth herein, and dmarcian (and its licensors, where applicable) reserve all rights not expressly granted herein. Customer agrees not to challenge the validity of, or dmarcian’s ownership of, Intellectual Property Rights in and to the Service or Website or any part thereof. Customer agrees to provide dmarcian with reasonable assistance with enforcing its rights at dmarcian’s own expense. Any enforcement of dmarcian’s rights, however, will remain within dmarcian’s sole discretion, including, whether and how to proceed with any enforcement activity.
5.2. dmarcian Data. Unless otherwise noted within the Website or Service, dmarcian owns dmarcian Data. dmarcian retains all rights, title, and interest including, without limitation, all Intellectual Property Rights to the dmarcian Data and all derivatives thereof. dmarcian hereby grants to Customer a worldwide, limited-term, non-exclusive, non-transferable (except pursuant to a permitted assignment under these Terms of Service), royalty-free license during the applicable Term to access and use the dmarcian Data solely for Customer’s own business purposes in connection with the use of the Service.
5.3. Customer Data. As between Customer and dmarcian, Customer exclusively own all rights, title and in and to all Customer Data. Customer hereby grants to dmarcian a worldwide, non-exclusive, non-transferable (except pursuant to a permitted assignment under these Terms of Service), royalty-free limited-term license during the applicable Term to receive, copy, modify, display, store, perform and distribute copies of Customer Data solely for the purpose of providing the Service in accordance with this Agreement
5.4. Personal Data. With regard to the processing of any Customer Personal Data (as defined in the DPA) by the Service, each party shall comply with its obligations under the Data Processing Addendum (DPA), located at https://dmarcian.com/wp-content/uploads/2023/12/dmarcian-DPA-December-2023-update.pdf, which is incorporated into these Terms of Service by reference.
5.5. Usage Data. dmarcian may collect and analyze de-identified and/or aggregated data related to the use of the Service (“Usage Data”). dmarcian may use Usage Data to improve and enhance the Service, develop new features, publish aggregate research statistics and insights, and ensure compliance with this Agreement. dmarcian retains all rights, title, and interest in and to the Usage Data, including all related Intellectual Property Rights.
5.6. Feedback. Providing any suggestions, enhancement requests, recommendations, corrections, or other feedback (“Feedback”) is strictly voluntary. Customer hereby grants to dmarcian a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free license to use and incorporate any Feedback Customer provides to dmarcian, orally or in writing, into the Service.
5.7. Security Breach. Unless, and to the extent, notification is delayed by the actions or demands of a law enforcement agency or Applicable Law, dmarcian will report to Customer the unauthorized acquisition, access, use, disclosure or destruction of Customer Data (a “Security Breach”) promptly following determination by dmarcian that a Security Breach occurred. The report will be made to Customer’s email address on file for the Account. dmarcian will take reasonable measures to promptly address the circumstances giving rise to the cause of the Security Breach and will take reasonable corrective measures to prevent future Security Breaches. Promptly after information is collected or otherwise becomes available to dmarcian, and unless prohibited by Applicable Law, dmarcian will provide information regarding the nature and consequences of the Security Breach as reasonably requested.
6. CONFIDENTIALITY.
6.1. Confidential Information. “Confidential Information” means all information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including, for example, business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by the Disclosing Party. Customer’s Confidential Information includes Customer Data. dmarcian’s Confidential Information includes the Service and all non-public information relating to the Service and Website. However, Confidential Information does not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party without obligation of confidentiality prior to its disclosure by the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without breach of this Agreement or any obligations owed to the Disclosing Party.
6.2. Non-disclosure. The Receiving Party will use the same degree of care to protect the Confidential Information of the Disclosing Party as it uses to protect its own Confidential Information of like kind (but not less than reasonable care). The Receiving Party may not use any Confidential Information of the Disclosing Party for any purpose except as expressly permitted in this Agreement. The Receiving Party may disclose Disclosing Party’s Confidential Information to its respective officers, directors, principals, employees, attorneys, and accountants (“Representatives”) only to the limited extent necessary to carry out the purpose of this Agreement. Each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business division, or group of such party. To the extent the Receiving Party discloses any Confidential Information of the Disclosing Party to any persons other than its Representatives, as condition precedent to disclosure, such recipient must execute a confidentiality agreement no less protective of such Confidential Information before disclosure is made.
6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or court order to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law or court order to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
7. WARRANTIES AND DISCLAIMERS.
7.1. dmarcian Warranty. dmarcian warrants that the Service will perform in accordance with the product documentation provided to Customer under normal use and circumstances. dmarcian does not warrant the Service will be uninterrupted or error-free, nor does it make any warranty as to the results that may be obtained from the use of the Service. dmarcian’s sole obligation, and Customer’s sole and exclusive remedy with respect to any failure by dmarcian to perform in accordance with the warranty in the preceding sentence, is for dmarcian in its sole discretion to take commercially reasonable efforts to re-perform the affected Service or refund the Fees paid or payable for the defective Service provided during the period of the failure.
7.2. Mutual Warranties. Each party represents and warrants that: (a) such party has the legal right and authority to enter into this Agreement, to perform its obligations under this Agreement, and to grant the rights and licenses described in this Agreement; (b) this Agreement will constitute such party’s legal, valid, and binding obligation, enforceable against such party in accordance with its terms; and (c) no consent, approval or authorization of, or exemption by, or filing with, any governmental authority or third party is required to be obtained by such party in connection with the execution, delivery and performance by it of this Agreement or the taking of any other action contemplated hereby, which has not been obtained.
7.3. Disclaimers. EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED FOR IN SECTION 7.1 (DMARCIAN WARRANTY) AND SECTION 7.2 (MUTUAL WARRANTIES): (a) DMARCIAN DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY IMPLIED BY APPLICABLE LAW INCLUDING THOSE THAT MAY ARISE BY COURSE OF DEALING OR PERFORMANCE; (b) THE SERVICE AND ANY AND ALL CONTENT OF ANY KIND PROVIDED BY DMARCIAN IN CONNECTION WITH THE SERVICE OR THIS AGREEMENT IS PROVIDED “AS IS,” “AS AVAILABLE” AND WITHOUT WARRANTY; AND IF CUSTOMER MAKES ANY UNAUTHORIZED CHANGES OR MODIFICATIONS TO THE SERVICE, THE WEBSITE, OR THE DOCUMENTATION, THE WARRANTY IN SECTION 7.1 (DMARCIAN WARRANTY) WILL BE NULL AND VOID.
8. INDEMNIFICATION.
8.1. dmarcian Indemnification. dmarcian will defend, indemnify and hold Customer harmless from and against any third party claim, demand, suit or proceeding (“Claim”) and related fees and expenses (including reasonable attorney’s fees) made or brought against Customer alleging the Service, as made available by dmarcian under this Agreement to Customer, infringes or misappropriates such third party’s patents, copyrights, trademarks, or trade secret rights under the laws of the United States. If dmarcian receives information about an infringement or misappropriation claim related to the Service, dmarcian may, in its discretion, and at no cost to Customer: (a) modify the Service so that it no longer infringes or misappropriates; (b) obtain a license for Customer’s continued use of that Service in accordance with this Agreement; or (c) terminate Customer’s subscriptions for that infringing Service upon thirty (30) days’ prior written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim arises from or relates to: (i) Customer Data; (ii) Customer’s or any User’s breach of this Agreement; (v) any modifications of the Service by or for Customer; (vi) use of the Service in combination with another product or service not provided by dmarcian; or (vii) failure to timely implement any modifications, upgrades, replacements or enhancements made available by dmarcian to Customer at no additional cost. This Section provides dmarcian’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for any third party claims related to the Service or this Agreement.
8.2. Indemnification Process. dmarcian’s obligations are conditioned upon Customer: (a) giving dmarcian prompt written notice of the claim (provided however, the failure to give timely notice will not relieve dmarcian of its obligations under this Agreement except to the extent such failure materially impairs the ability of dmarcian to defend); (b) granting full control of the defense and settlement to dmarcian (provided however, Customer may participate with counsel of its choosing at its own expense); (c) reasonably cooperating with dmarcian, at dmarcian’s expense with regard to out-of-pocket expenses, in defense and settlement of any such claim; and (d) not admitting any fault or liability of dmarcian or itself.
9. LIMITATION OF LIABILITY.
9.1. Limitation of Liability. EXCEPT FOR LIABILITY ARISING FROM EACH PARTY’S BREACHES OF SECTION 6.2 (NON-DISCLOSURE), CUSTOMER’S BREACH OF SECTION 3.3 (RESTRICTIONS), DMARCIAN’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 8 (INDEMNIFICATION), AND EITHER PARTY’S WILLFUL MISCONDUCT OR FRAUD (“LIABILITY CARVEOUTS”), EACH PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THE AGREEMENT OR THE SERVICE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO DMARCIAN IN ACCORDANCE WITH THE AGREEMENT AND ALL ORDERS HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE UPON WHICH ANY SUCH LIABILITY ARISES. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
9.2. Exclusion of Consequential and Related Damages. EXCEPT FOR THE LIABILITY CARVEOUTS, IN NO OTHER EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUE, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW IN THE APPLICABLE STATE OR JURISDICTION.
10. SUSPENSION AND TERMINATION.
10.1. Maintenance and Downtime. dmarcian may, without any liability to Customer, suspend access to the Service at any time: (a) to perform scheduled or unscheduled maintenance, modifications, or upgrades; (b) due to hardware failures, power outages, or failures of third party providers; (c) to mitigate or prevent the effects of any threat or attack to the Service or any other network or systems on which the Service relies; (d) as necessary in dmarcian’s sole discretion because the Service may violate Applicable Law, or as might be required for other legal or regulatory reasons; or (e) there is another event for which dmarcian reasonably believes the suspension of the Service is necessary to protect the dmarcian network or other customers (each, a “Service Suspension”). dmarcian will make a reasonable effort when possible to notify Customer in advance of any scheduled Service Suspension but dmarcian will have no liability for any damages, losses (including loss of data or profits), or any other consequences incurred as a result of a Service Suspension or the failure to provide notice thereof.
10.2. Account Suspension. dmarcian may immediately suspend the Account, in whole or in part, without prior notice, for any reason and/or time that is reasonable under the circumstances including, for example, Customer’s failure to timely pay Fees or abusing the Service (an “Account Suspension”). During each such Account Suspension: (a) Customer’s, and all Users’, access to the Account and the Service will be suspended; (b) Customer’s obligations pursuant to this Agreement, including the obligation to pay Fees, will continue to accrue; and (c) unless dmarcian deems the Account and/or any of Customer Data to be potentially harmful in any way or potentially in violation of any Applicable Law, dmarcian will maintain the Account and not take action to delete or remove any or Customer Data stored on or within the Service.
10.3. Termination. dmarcian may immediately terminate this Agreement and/or the applicable Order: (a) for any or no reason during any free subscription to the Service; (b) if Customer fails to timely pay Fees; or (c) if Customer is abusing the Services. Notwithstanding the previous sentence, either party may terminate this Agreement for cause: (i) upon fifteen (15) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
10.4. Consequences of Termination or Expiration. Upon the effective date of termination or expiration of this Agreement: (a) all rights, licenses, and subscriptions granted to Customer under any Order will immediately terminate; (b) Customer and all Users will immediately cease all use of, and access to, the Account, User IDs, and the Service; (c) Customer will immediately either return to dmarcian or, in dmarcian’s discretion, destroy all dmarcian Data, dmarcian Confidential Information, and User IDs that are in Customer’s and Users’ possession; and (d) Customer will update Customer’s DNS records and/or terminate forwarding of DMARC data to dmarcian
10.5. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 10.3 (Termination), dmarcian will refund to Customer any prepaid Fees covering the remainder of the term of all Orders after the effective date of termination. If this Agreement is terminated by dmarcian in accordance with Section 10.3 (Termination), Customer will pay any unpaid Fees covering the remainder of the Term of all Orders. In no event will termination relieve Customer of its obligation to pay any Fees payable to dmarcian for the period prior to the effective date of termination.
10.6. Survival. Customer’s obligation to pay any fees accruing before termination and Section 1 (Definitions), Section 5 (Data), Section 6 (Confidentiality), Section 7 (Warranties and Disclaimers), Section 8 (Indemnification), Section 9 (Limitation of Liability), Section 10 (Suspension and Termination), and Section 11 (General Provisions) will survive any termination or expiration of this Agreement.
11. GENERAL PROVISIONS.
11.1. Notice. Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder to Customer will be in writing and will be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; or (c) the first business day after sending by email (provided email will not be sufficient for notices of termination or an indemnity claim). Billing-related notices to the Customer will be addressed to the relevant billing contact designated by the Customer. All other notices to the Customer will be addressed to the relevant Service system administrator designated by the Customer. Notwithstanding the foregoing, dmarcian occasionally may need to notify Customer and Users of important announcement regarding operation of the Service, such as notice of downtime, and may provide such information by online notice. It is Customer’s responsibility to keep all email addresses associated with the Account current. Customer will be deemed to have received any email sent to any such email address, upon dmarcian sending of the email, whether or not Customer actually receives the email (unless dmarcian receives a bounce notice). All notices made by Customer to dmarcian must be sent to dmarcian, Attn: Legal, P.O. Box 1007, Brevard NC 28712, USA with a copy to [email protected].
11.2. Modifications. dmarcian reserves the right to prospectively change or modify any of the terms and conditions contained in this Agreement including, for example, the Privacy Policy by posting the new version on its Website. dmarcian will make reasonable efforts to notify Customer of such changes, which may include posting an announcement on the Website, in-application notices, or via email. dmarcian additionally reserves the right to change or modify the Service at any time provided the Service continue to function in accordance with the Agreement. When circumstances warrant, dmarcian will use reasonable efforts to notify Customer of such changes, which may include posting an announcement on the site, in-application notices, or via email. An explanation of Service modifications can be found on dmarcian’s change log available at: https://dmarcian.com/changelog. Customer’s continued use of the Service following dmarcian’s posting or notice of the change(s) will constitute Customer’s acceptance of such change(s). If Customer does not agree to such change, Customer may cancel its subscription to the Service by providing dmarcian with written notice within thirty (30) days of dmarcian posting or providing notice of the change(s) to this Agreement.
11.3. Linked Sites. The Service and Website may contain links to third party websites not under dmarcian’s control. As such, dmarcian is not responsible or liable for the content on or the policies regarding use and privacy of any such website. If Customer access any such website, Customer does so at its own risk and dmarcian will have no liability in connection therewith.
11.4. Force Majeure. Except for the payment of Fees, each party will be excused from any failure or delay caused by or the result of causes beyond its reasonable control and could not have been avoided or corrected through the exercise of reasonable diligence, including, but not limited to, acts of God, fire, flood, hurricane or other natural catastrophe, terrorist actions, laws, orders, regulations, directions or actions of governmental authorities having jurisdiction over the subject matter hereof, or any civil or military authority, national emergency, insurrection, riot or war, labor strikes not involving either party’s employees, general failure of telecommunication or digital transmission links, general failure of the Internet, failure of any third party operating systems, platforms, applications or networks not under reasonable control of dmarcian, or other similar occurrence.
11.5. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably delayed or withheld); provided, however, either party may assign this Agreement in its entirety (including all Orders), without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. Any purported assignment in violation of this Section is null and void. Subject to the foregoing, each and all of the provisions hereof will be binding on and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors, and permitted assigns.
11.6. Governing Law; Jurisdiction. The law that governs this Agreement, and the courts that have jurisdiction over any dispute between the parties, depends on the dmarcian legal entity that is party to this Agreement, and is specified in the table below:
| dmarcian Contracting Legal Entity | Governing Law | Courts with Exclusive Jurisdiction |
| dmarcian, Inc. | North Carolina, USA | State and federal courts of North Carolina, USA |
| dmarcian Canada | Canada | Ontario, Canada |
| dmarcian Limited | Ireland | Ireland, EU |
| dmarcian Pty Ltd | Australia | Victoria, Australia |
11.7. Injunctive Relief. Both parties acknowledge that any unauthorized use of the Service or breach of the confidentiality or intellectual property provisions herein may cause irreparable harm to the other party, the extent of which would be difficult to ascertain. Accordingly, both parties agree that, in addition to any other remedies to which a party may be legally entitled to, either party will have the right to seek injunctive relief in the event of such a breach.
11.8. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, and fiduciary or employment relationship between the parties. Nothing in this Agreement will be construed to prevent dmarcian from marketing, licensing, selling, or otherwise providing Service or any aspects dmarcian’s technology or services to any third party. Nothing in this Agreement will be construed to prevent the Customer from obtaining services similar to the Service from a third party.
11.9. Third Party Beneficiaries. There are no third party beneficiaries under this Agreement.
11.10. Waiver. No waiver of any term or condition of this Agreement will be construed as a waiver of any other term or condition. Waiver of any default under these Terms of Service will not be construed as a waiver of any other default. No waiver of any provision in the Agreement or any right or remedy hereunder will be effective, unless in writing and signed by the party against whom such waiver is sought to be enforced. There will be no waiver even if there is a delay in exercising or a partial exercising of any right or remedy under the Agreement.
11.11. Severability. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, such provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement will remain in full force and effect.
11.12. Headings. The section headings appearing in these Terms of Service are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such paragraph, or in any way affect such agreements.
11.13. Electronic Signature. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included on these Terms of Service and any Order are intended to authenticate the writing and to have the same force and effect as manual signatures. Electronic signature means any electronic, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including e-mail electronic signatures.
11.14. Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence will be: (a) the applicable Order (which includes the terms included in any on any schedules, exhibits, or annexes attached to the Order and the terms included on any URL links referenced therein); (b) these Terms of Service (which includes the terms included in any URL links referenced herein and the terms included on any exhibits, schedules or annexes attached to the Terms of Service); and (c) any Service product documentation provided to Customer.
11.15. Entire Agreement. This Agreement is agreed to by the parties that reference these Terms of Service and all expressly referenced documents. Collectively, the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof, and therefore the parties expressly disclaim all prior discussions, emails, RFPs and/or agreements between the parties. This Agreement supersedes all prior and contemporaneous agreements or communications including, without limitation, any quotations or proposals submitted by dmarcian. The terms on any purchase order or similar document submitted by Customer to dmarcian will have no effect. Unless otherwise expressly permitted in these Terms of Service, the terms of this Agreement may be amended only by a written agreement signed by both parties that expressly refers to this Agreement.