SPAMINA SOFTWARE LICENSE AGREEMENT
- Owner: AEGIS SECURITY S.L. (hereinafter referred to as Spamina)
- Registered address: Calle Arte 15 28033 Madrid, Spain
- CIF (Tax Identification Number): B-63952485
- Public Registry: Registered in the Commercial Registry of Madrid, Volume 32495, Folio 48, Sheet M-586010, 2nd Entry
Both parties, Spamina and the Client (hereinafter referred to as the “Parties” and each one of them indistinctly and individually as “Party”), are interested in signing the present agreement accepting the terms set forth below.
By entering this Agreement, the Parties agree to the conditions under which the services provided by Spamina to the Client will be governed.
Spamina and the Client agree that, within the framework of their contractual relationships, two types of conditions will apply: on the one hand, general conditions, which will apply and will be fully effective for all Spamina services (hereinafter, the “General Conditions”); and, on the other hand, specific conditions, which will apply to specific services (hereinafter, the “Specific Conditions”). From the moment that this Agreement is signed, both the General Conditions and the Specific Conditions will be binding on both Parties, without prejudice to the joint application of the conditions of contract agreed between Spamina and the Client at the time of accepting the offer of service.
Spamina reserves the right, in any case, to unilaterally modify these conditions provided that: i) the modification does not substantially affect the essential conditions of this Agreement; ii) the modification is expressly announced to the Client through a communication sent via email to the System administrator; and iii) any modification is always available at the web page accessed from this following link http://www.spamina.com/eng/datos/terms.html.
The acceptance of these General Conditions and Specific Conditions by the Client will be an essential requirement to provide the service contracted from Spamina.
2. PRIOR INFORMATION
Contracts concluded telematically are binding in accordance with their terms and produce all their effects provided that there is the consent of both Parties.
For these purposes, it is understood that the monitoring of all phases of the process of activation and configuration of the service and the payment of the corresponding amount by the Client implies: i) the provision of consent required for contracting; ii) that the Client recognizes that the characteristics of the product or service contracted conform to the needs of the Client; and iii) that the Client has been properly informed by Spamina.
Spamina reserves the right to make commercially reasonable changes to these conditions when deemed appropriate. In the event that Spamina carries out any modification of the conditions governing the service, it will inform the Client at least thirty (30) days before the modifications enter into force. In the case that the modifications undertaken affect any of the substantial elements of the Agreement and the Client does not accept these, it may unilaterally terminate the contract.
The service activation process begins with the sending of an email together with the username and password to the Administrator designated by the Client, which must contain the present conditions that must be accepted in all cases in order to continue using the services of Spamina.
The Client must accept these conditions, doing so by marking the appropriate box. Under no circumstances will it be possible to continue the process of activation and use of the platform if the box for accepting the conditions is not marked, this being an essential condition to executing the Agreement between the Parties.
Once acceptance has been given, Spamina will store, together with the Client information, the day and hour of acceptance of the registration conditions in force at this time in a historical file as proof of the Client's approval.
In all cases, the resulting acceptance document from the System administrator will be duly filed, being associated with both the IP address and the exact moment in which the acceptance was given.
Once validated in the system, the Administrator will enable the various dependent users and send them the system authentication information, without prejudice to the configurations undertaken by the Administrator. This measure, together with the other technological measures of the service and those applied internally by Spamina, guarantee the security and integrity of all access to the service and the information associated with it. This data, once generated, will be the sole and exclusive responsibility of the end user and, where appropriate, of the Client of Spamina.
In all cases, the password provided may be modified by the Client in question, thus being the only party to know the access data.
3. CUSTOMER SERVICE AND TECHNICAL SERVICE
Spamina offers a customer service to all Clients as well as technical assistance, in accordance with the following characteristics:
- The customer service will be provided by phone, via email or via the support portal accessed from the following link (http://www.spamina.com/en/soporte.php).
- The customer service will be available within the hours specified in this web page. Nevertheless, Spamina reserves the right to change these hours as a result of time changes and the technical and commercial needs of Spamina.
- The customer service will be exclusively provided in Spanish and English, notwithstanding the fact that Spamina can make other languages available to the Client, in accordance with that expressly agreed between the Parties.
- In order to provide the system with the maximum possible security and to improve the quality of the service, Spamina reserves the right to record any telephone conversation within the scope of customer service.
- The Client and the End user agree that their respective telephone conversations with Spamina may be recorded in order to improve the quality of the services and the security in the provision of said services.
4. OBLIGATIONS OF THE CLIENT
By accepting these conditions, the Client guarantees:
- Not to use the service or any of the elements comprising it to develop time-sharing operations.
- Not to become a service provider for software applications that are designed to allow third-party access to the contracted service or any of its components through rental, administrative services or similar.
- Not to submit the servers, accesses or any of their elements to activities which lead, directly or indirectly to the decompilation of the software, which involve carrying out operations the reverse of those of its construction or which constitute or may constitute reverse or inverse engineering, decompilation or disassembly.
Under no circumstances will the Client, or any individuals related to it, access the source code of the Cloud service.
- Not to use the service as a system to manage and exchange illegal information and/or documents contrary to ethics, public policy, copyright and/or industrial property rights.
- It has been granted sufficient capacity to be able to accept these conditions.
- Not to subject the services to workloads that are clearly aimed at the destabilization of said services, including denial of service attacks (DoS) or similar.
In the case that this kind of situation is detected, the level of service agreed between the Parties will not apply, this being considered an emergency situation. If after resuming the service there is further incidence of this type, the services will be withdrawn with no rights to any refunds, as this is considered abusive use of the contracted product or service.
- Not to use the service for illegal purposes (among others, spam, mail bombing, phishing, escrow fraud, scam 419, pharming, dissemination of viruses or any other type of fraudulent or criminal activity or sabotage, etc.) nor to exchange illegal information or to evade compliance with legal obligations in the state of origin or destination of the communication.
- Not to carry out acts of reverse engineering, collection of requirements and other activities aimed at developing an online service similar to that provided by Spamina, as this activity may be considered to be an act of unfair competition and an infringement of the intellectual and industrial property rights that Spamina holds for the offered Cloud services.
- Not to translate, adapt, improve, transform or correct the service, or any of the integral elements or otherwise modify the service, and not to incorporate the service into other proprietary or third-party software.
- Not to remove, suppress, alter, manipulate or in any way modify the notes, legends, indications or symbols that Spamina, as the legitimate holder of the rights, incorporates into their property in terms of intellectual or industrial property (such as, copyright, ©, ®, ™, etc.).
- To pay the amounts expressly established in this Agreement in due time and form.
- To inform Spamina about any fact or situation that could put the security of access from authorized users at risk.
5. LEVEL OF SERVICE AND GUARANTEES
The Client and Spamina undertake to comply fully with the terms reflected in the present Agreement, as well as with the regulations in force, acting fairly and in good faith during the term of the contractual relationship between the Parties.
Spamina is committed to the proper functioning of the service and the systems associated with it, as well as the highest levels of quality, security and availability.
Spamina commits to providing the Client the level of service expressly agreed between the Parties. In the event that the Parties have not set such service levels, Spamina will provide the Client the level established in these conditions.
In this sense, Spamina guarantees the Client an appropriate service level that allows it to fully enjoy said service, which will be available 24 hours a day, 7 days a week, with a communications time availability level equivalent to 99.86%. This is without prejudice to the occurrence of situations involving the temporary interruption of the service, specific or scheduled maintenance services, as well as wars, natural disasters, strikes, lockout, fire, non-availability of the hosting provider and other unforeseeable circumstances or those that are foreseeable but inevitable.
Nevertheless, Spamina offers the Client the possibility of agreeing a level of service specifically tailored to its needs. Therefore, this service level may be expanded and specified by means of a prior agreement between the Parties, in any case, through the signing of the corresponding contract defining the availability, level of service guaranteed and agreed penalties. However, Spamina reserves the right to interrupt the contracted service for purposes of scheduled maintenance, technical repair, and for the improvement of the services themselves. In this case, Spamina agrees to notify the Client of such activities at least forty-eight hours (48) hours beforehand.
In order to guarantee the fulfillment of these levels of service, Spamina has high-availability redundant systems and high-availability disaster recovery. Despite this, Spamina cannot absolutely guarantee the availability of all of the services, insofar as these depend on the connectivity and availability of third-party suppliers/providers, such as the electricity grid and data network. However, Spamina has level of service agreements with these suppliers/providers that guarantee greater or identical levels of service to those specified in the present conditions.
Likewise, Spamina guarantees that all the necessary information for restoring the service hosted on the servers associated with the service, including databases, are subject to at least one backup process. This backup copy is hosted on a device other than the main hardware with a view to enable the possibility of data recovery.
In the event of the termination of the Agreement, Spamina agrees to put at the disposal of the user, within a maximum of thirty (30) working days, all the information and documents hosted at the time it is requested, and this service may have an additional cost for the Client depending on the volume of information that must be recovered. The documentation provided to the Client will be delivered in an interoperable format LDAP (ldiff) and/or MySQL (sql), or any format exportable by these.
In this regard, Spamina will not responsible for the system subsequently employed by the Client not complying with above-mentioned standards, and under no circumstances will Spamina have the obligation to intervene in subsequent implementation and integration tasks necessary for the proper functioning of the information in other servers.
Spamina will assume no responsibility for breach of these conditions beyond those derived directly from the service itself.
Notwithstanding, the responsibilities assumed by Spamina as a result of a repeated breach of its obligations may not exceed the total amount paid by the Client during the year, and in any case the last payment made. The Parties agree that any damages for loss of profits are fully excluded.
However, if Spamina breaches the commitments made in these conditions or the specific conditions applicable to each product contracted by providing an inefficient service during intermittent or non-continuous periods, the responsibility of Spamina will be limited to returning the amounts paid for the product or service during confirmed periods of interruption.
Likewise, Spamina assumes no liability, whether direct or indirect, arising from the misuse by the Clients or users of the Cloud service or any of the contents that are hosted on the contracted servers.
Pursuant to article 16 of Law 34/2002 of July 11th on information society and e-commerce services and Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market, under no circumstances will Spamina be considered responsible for the content hosted, being the Client or the user who sends the contents to Spamina servers solely and exclusively responsible.
On this basis, Spamina assumes no liability regarding:
- The content hosted in the contracted products and the information transmitted and stored on its servers, which will be the responsibility of the Client or user.
- The veracity of the information hosted and/or exchanged by Clients and/or users.
- Any errors caused by the access providers.
- Contamination by viruses on their computers, the protection of which is the responsibility of the Client and/or user.
- The intrusion of third-party products contracted by the Client, even if Spamina has established reasonable protective measures.
- The defective configuration by Client and/or the user.
- Damage to equipment (user terminals) or misuse (responsibility of the user).
- Violation of intellectual or industrial property rights, or of any other rights or legitimate interests that may arise from the use of the product contracted by the Client.
- That which is exclusively attributable to the Client and/or user, such as any direct or indirect damage that the Client and/or user may cause to third parties.
7. SPECIFIC CONDITIONS APPLICABLE TO SPAMINA CLOUD SERVICES
Spamina's email filtering is designed to protect the server from spam, viruses, spoofing, phishing and spyware. This filtering stores spam and malware in the Spamina cloud, freeing up the email server and reducing the bandwidth in the user's corporate network without the user having to employ any additional hardware.
The service provided by Spamina includes a standard backup service of valid incoming mail for 5 days and 28 days in the case of incoming mail classified as spam. Also included in this service is the Cloud Email Continuity module, which is activated in the event the mail server fails and which guarantees the user: i) the delivery of emails received over the last 4 days from the moment of the failure in the service; and ii) the access via webmail.
The technical characteristics of the service, which in all cases Spamina guarantees throughout the term of the contractual relationship between it and the Client, are:
- Multilayer filtering for inbound and outbound mail (includes connection, anti-virus, anti-spam and anti-malware filtering).
- Dynamic Dashboard Vision of the system status and filtering activity for different periods of time.
- Actions Audit
- Reporting engine (predefined reports)
- Centralized quarantine features (mass actions on emails from log listings)
- Detailed information about classifications and filters applied
- Possibility of use in Public and Private Cloud mode
- Perimeter solution based on scalable and distributed architecture (SDA)
- API based on web services for interoperability with third-party applications
- Management of email usage policies
- Configurable storage for incoming spam and valid mail
- Rules engine for inbound and outbound mail
- Several profile levels (company administrator, domain administrator or end user)
- Multiple company and domain administrators
- Compatibility with IPv6
Any Client that contracts the services of Spamina will have all of the information necessary so it or the users authorized by it can gain access to said services. This information will include the administration access panel link, user configuration, companies, languages, LDAP integration (where applicable), email and domain traffic activity reports, quarantine management, updates and other elements necessary for the proper configuration and use of the service.
With regard to the security of the service, Spamina uses perimeter anti-virus, anti-spam systems, anti-phishing systems, anti-malware and antispoofing, as well as systems protecting against directory attacks, such as Delay or GreyListing.
The automatic filtering system can be integrated with the main platforms in the market intended for Email Management and that conduct a full archiving of incoming mail and emails included in "quarantine". Notwithstanding the fact that, before contracting the service, the Client must confirm with our technical department whether it is compatible with its email system.
The email monitoring system offered by Spamina is a 24x7x365 service with 10x5 technical support, which fully guarantees the continuity of the service.
In order to ensure the stability and security of the service, Spamina reserves the right to suspend or block, temporarily or indefinitely, the domain or domains that are affected when any of these exceed the limits, capacity for analysis and filtering means indicated below.
For these purposes and unless otherwise stated, it is understood that the average analysis and filtering capacity for a domain has been exceeded when the domain average exceeds 250 emails received per day (per email account), the total consumption in Mb exceeds 50 Mb per day (per email account) or the remission of more than 1,000 emails is detected within a 60-minute period (per email account). If any of these figures are exceeded, Spamina may deem that the Client, or the users authorized by it, is sending mass emails. However, by mutual agreement the Parties, specific and appropriate limits to the particular characteristics of the entity may be established.
The Client is entitled to use 5 free aliases for each mailbox contracted.
Spamina reserves the right to limit the number of basic users contracted by the Client; this type of user may not exceed 5% of the total number of licenses contracted. Once the maximum number is reached, if the Client wishes to add additional users, it may only add advanced users.
The hosting service is limited to 256 Mb per user account, and this capacity may be expanded through the contracting of additional services offered by Spamina.
As indicated previously, Spamina's email filtering service incorporates a system of standard backup copies which guarantee the Client the possibility of recovering any email received in the previous 5 days, in the case of regular email, and 28 days for spam email. Despite this, in order to achieve the maximum guarantees and security for its Clients, Spamina offers an additional email archiving service which guarantees the possibility of recovering all emails sent and received from each of the activated accounts.
Spamina offers all its Clients a permanent, automated and secure archiving service for all the electronic mailboxes selected by the system administrator. In the case that the mailboxes to which this should be applied have not been selected, Spamina will not be forced to provide said service.
The archiving service will be activated only when the Client has expressly contracted and paid for it, and it is not a default service included in Spamina’s basic services. This service will only be activated on those email accounts that are specifically designated by the Client, and it will not be applicable by default to the Client's remaining email accounts.
Spamina informs the Client that a copy of each of the emails received or sent will be kept so that the Client will always have a remote copy, easy to access and integrated into its electronic mailbox, thus guaranteeing the remote access to the contents of the mailbox from any location.
With regard to the characteristics of the service, the Client and/or user may export or forward all backed up emails.
In order to ensure the security of the Client's local systems and of each of the users dependent on it, Spamina will only store a copy of those emails that meet the security levels specified in the Client's configuration. In this regard, Spamina will have no responsibility in the event that the system does not save a backup copy of any email because it does not meet the security levels expressly indicated by the Client at the time the service was configured.
Likewise, Spamina does not guarantee that emails containing files larger than 10 Mb will be accessible from the file created. Spamina reserves the possibility of storing only the text of the email in question and not the attachments.
In this line, Spamina informs the client that the email archiving service can in no case store more than 5 GB per email account and per year. When an account reaches the maximum size indicated, Spamina will be expressly empowered to remove the oldest emails from the archiving service until the space required for the proper functioning of the service is achieved.
Likewise, Spamina offers the Client a complete encryption service for the information exchanged through its systems.
The DLP service will be activated only when the Client has expressly contracted and paid for it, and it is not a default service included in Spamina’s basic services.
This service will only be activated on those email accounts that are specifically designated by the Client, and it will not be applicable by default to the Client's remaining email accounts.
Spamina guarantees the Client that this service uses encrypted algorithm ciphers based on PKI infrastructures of proven and recognized security that provide the full integrity and confidentiality of information exchanged through email systems.
Spamina guarantees that all the information hosted on the systems will be accessible from any device, both fixed and mobile, provided that the Client and/or user enters the private access key, which is the essential prerequisite to decrypt the content.
Spamina holds all rights, titles and interest in the service object of this Agreement, as well as on all its modules, modifications, updates and any element and/or functionality that is developed on it.
8. INTELLECTUAL AND INDUSTRIAL PROPERTY
Spamina is highly committed to the protection of intellectual and industrial property rights. For this reason, Spamina declares the following:
Spamina guarantees that it is the rightful owner of the existing intellectual property rights on the service and anything related to it, and it is not involved in any type of legal dispute prior to the signing of this Agreement. To this effect, Spamina owns all the copyright, intellectual and/or industrial property rights, and it is able to exploit the service without any restriction of temporal or territorial nature relating to media or methods of distribution.
The structure, characteristics, codes, working methods, information systems and exchange of information systems, development tools, know-how, methodologies, processes, technologies and algorithms that constitute and/or may related to the Cloud service are the exclusive property of Spamina, and they cannot be modified, copied, altered, reproduced, adapted or translated by the Client or the users, without the prior consent of Spamina.
Similarly, all of the user manuals, texts, graphics, and other materials associated with the service are the property of Spamina, and they cannot be modified, copied, altered, reproduced, adapted or translated by the Client or the users.
The provision of the Cloud service to the Client or the users authorized by it, or the mere access by them does not imply, in any case, the transfer of ownership or the granting of any rights of use in their favor other than that expressed in this Agreement. In any case, Spamina reserves all rights to any aspect not expressly recognized in this Agreement.
All content and information provided by the Client and hosted on the Spamina servers is the exclusive property of the Client, and Spamina is merely a service provider responsible for data storage, in no case holding the intellectual property rights of said content. In this sense, the Client and the staff appointed by the Client will be the only ones with the ability to exploit the aforementioned content and information.
9. TIMING CONDITIONS
The Cloud service will have a duration defined and specified in the conditions agreed between the Parties. If no specific duration is agreed between the Parties, the service will have a duration of 12 months from the date of signing this Agreement.
The cancellation of the service will occur on the date specified by the Client, provided that the request is made at least 90 days before the effective cancellation date.
At the termination date, the system will automatically give a warning of the need to renew the service, with at least 30 days notice. If the service is not renewed, it will be automatically canceled at 00.00 of the day after the termination date of the provision of services (12 months or, if applicable, the deadline expressly agreed between the Parties).
10. TRANSFERAL AND SUB-CONTRACTING
The accounts of the registered Clients are completely personal and non-transferable. This way, the Client may not transfer, sub-contract or otherwise dispose of the rights and obligations under this Agreement to a third party without the prior written consent of Spamina.
In the event that the Client is duly authorized by Spamina to carry out the transfer or subcontracting of the account in favor of a third party, the Client and the third party will answer jointly against Spamina in relation to the rights and obligations under this Agreement that are breached by the third party in question.
11. Confidentiality, security and data protection
Spamina, as a provider of electronic communication services and information hosting, guarantees the Client that all information exchanged or hosted through Spamina systems will be considered confidential. Therefore, appropriate security measures will be applied to this information with the aim of achieving their maximum protection during the contractual relationship between the Parties. Likewise, Spamina guarantees that this confidentiality obligation will persist indefinitely once the contractual relationship between the Parties ends.
Spamina states that the servers used for the provision of the service are under its effective control and that they are located in the European Union, or, if appropriate, in countries whose security and protection levels are comparable to those required by EU regulations.
Likewise, Spamina guarantees the Client that the processing of information and personal data will conform to the following guidelines:
- Spamina will process the information provided in accordance with the instructions of the Client.
- Spamina will only process the information for the proper provision of those services.
- Spamina will not communicate this information, even for its preservation, to third parties.
- Once the provision of services is completed, Spamina will deactivate the service and provide the Client, in electronic format, with all the information and files available on the platform when requested.
Spamina states that the processing of personal data will take place in all cases by subjecting it to the security measures expressly indicated in the Spanish Data Protection regulations. In any case, Spamina will make its best efforts to implement the technical and organizational measures necessary to achieve the maximum security of the personal data, thus avoiding its alteration, loss, unauthorized access or processing, taking into account the status of the technology, the nature of the data hosted and the risks to which they are exposed.
In accordance with the provisions of the Spanish and European Community data protection regulations, Spamina informs the Client that in order to ensure a higher quality, availability and level of service, has hired the server hosting services with companies registered in Spain. For this purpose, Spamina has signed with those companies the corresponding contracts for provision of services and service level agreements, as well as compliance reviews and audits of the legal obligations imposed by the regulations for data protection.
The Parties agree that in the event of non-payment by the Client, the services contracted from Spamina will be automatically suspended. In the event of suspension, the Client will be given 30 days to pay Spamina the overdue amounts.
In the event the Client does not pay Spamina the amounts pending in the aforementioned 30-day period, Spamina will automatically suspend all the services for which the Client owes a payment, and this suspension of service will be effective from the day following the 30-day period. The duration of this suspension will extend until the day that the Client pays Spamina all the amounts due.
If the Parties had agreed that the payment would be made on a monthly basis, Spamina will continue to invoice the months following the date of suspension. Where payment had been agreed on a yearly basis, Spamina will continue to charge the amounts on a monthly basis after the suspension, and the Client's obligation of having to pay all the amounts corresponding to the agreed total will remain, in any case, effective.
In the event that the Client whose services have been suspended for non-payment continues to fail to pay for a period exceeding 30 days, Spamina will have the right to terminate the Agreement with the Client without any entitlement to compensation, as this will be considered an essential breach of the Agreement.
13. EARLY TERMINATION OF THE AGREEMENT
Both Parties may suspend or terminate this agreement in the event that any of the following requirements are met:
- One of the Parties substantially fails to meet the conditions established in the Agreement and does not remedy this within 30 days after the receipt of notification in writing by the other Party urging to remedy it.
- One of the Parties ceases its business operations or is subject to insolvency proceedings and said procedures are not dismissed within 90 days (*invalid provision according to the Spanish law).
- One of the Parties substantially fails to meet the conditions established in the Agreement more than twice.
In the event of early termination, the following will occur:
- The rights granted by one Party to the other will cease with immediate effect (unless otherwise provided for in this section).
- Spamina will provide the Client with access to all of the Client's data, as well as the ability to export them in an interoperable and standard format during a commercially reasonable period of time, notwithstanding the fact that Spamina reserves the right to charge for this service.
- After maximum period of time of thirty days, Spamina will remove the Client's data by deletion of any redirects that refer to these in Spamina's active servers and by overwriting them as time passes, making the recovery of said information impossible.
- Both Parties will immediately apply all commercially reasonable efforts to return or destroy any confidential information belonging to the other Party, if requested to do so.
In the event of the early termination of this Agreement, Spamina reserves the right to invoice the Client the remaining unpaid amount until the end of the annual commitment assumed by the Client.
In the event that the early termination of the Agreement by the Client is due to reasons directly or indirectly attributable to the Client, authorized users or third parties unrelated to the Agreement, the Client acknowledges that Spamina will have no obligation to return any amount that it has been paid in advance. This is without prejudice to Spamina's right to claim from the Client any damages caused by the early termination.
Should the Agreement be terminated unilaterally by the Client, without any justifiable cause, it agrees to pay Spamina, as compensation, the amounts that remain outstanding until the completion of the period for the provision of services agreed between the Parties.
14. APPLICABLE LAW AND COMPETENT JURISDICTION
For any litigation or dispute arising from this Agreement, the Spanish law will apply. Both Parties expressly waive any jurisdiction which may correspond to them and agree to submit to the jurisdiction and competence of the Courts and Tribunals of the city of Madrid.