Manaskriti List Hosting Service Agreement
Note: Manaskriti will not accept Service Agreements that have been modified.
Please complete, sign and mail this agreement to
Manaskriti Software Solutions
5/8, Sevak Baidya Street
Calcutta 700 029
India
This List Hosting Services Agreement ("Agreement") is made as of the [date] day of [month, year], by and between Manaskriti Software Solutions ("Manaskriti"), Manaskriti being hereinafter referred to as "Service Provider") and [name, designation] of [company] ("Customer").
1.Service Agreement.
Service Provider agrees to arrange for and to provide Customer with announcement and/or
discussion email list hosting services in respect of the mailing list/s specified in
Exhibit "C" (the "Service") as provided by Lyris Technologies Inc. of 2070 Allston Way,
Suite 101, Berkeley, CA 94704 USA (Lyris) subject to the terms of this Agreement, the
Prices and Payment Terms stated in Exhibit A (the "Prices"), and the Operating Rules stated
in Exhibit B (the "Rules"). This Agreement, including the said Exhibits, state the full
agreement between Service Provider and Customer with respect to the Service to be provided
hereunder. Any other or prior agreements between Service Provider and Customer with respect
to the subject matter hereof are hereby superseded. This Agreement will become effective
upon the Service Provider accepting this Agreement by activating Customer's access to the
Lyris Outsourcing System of Lyris Technologies Inc. through "lyris.manaskriti.com"
(the "System").
2.Right to Modify.
This Agreement and the Rules may be supplemented, modified or amended (each a "Revision")
by Service Provider at any time at its sole discretion, and each such Revision will be
effective 2 business days after it has been sent to Customer by Service Provider pursuant
to Paragraph 11. However, Prices may be modified only in accordance with the provisions of
Paragraph 4. If any Revision is not acceptable to Customer, Customer may terminate this
Agreement in the manner provided in Paragraph 10. Customer's continued use of the Service
after the effective date of such Revision shall be deemed to constitute acceptance thereof.
Except as otherwise stated in this Paragraph 2 and Paragraph 4, this Agreement may not
be amended, except by a written agreement signed by the parties. Exhibit "C" may be
supplemented or amended from time to time mutually by way of addenda.
3. Activation and Use of the System
(a) Following execution of this Agreement, Service Provider shall arrange for and provide
Customer with an account name and a password which will allow access to the System for
the purposes of availing of the Service. Customer will use the System as an Independent
Content Provider ("ICP"). As an ICP, Customer shall be liable and responsible for any
and all activities conducted through its account by Customer or, if applicable, by
Customer's users, whether or not such activities have been authorized by Customer.
(b) Upon Service Provider's request, Customer shall provide Service Provider with accurate and complete registration information with respect to Customer's use of the System (including the identity, email addresses and passwords of Customer's authorized users and list administrators) and shall promptly update such information as changes occur. Customer's failure to provide or update such information shall constitute a breach of this Agreement and be a ground for Service Provider to terminate this Agreement or the right of any person associated with Customer to use the System (including any person using the System through Customer's account with or without Customer's authority). In such case, Customer shall also be liable to Service Provider for any and all additional remedies which may be available under law.
(c) Customer agrees to use a "double opt-in" subscription method for all new list members. For the purpose of this Agreement, a "double opt-in" method shall mean that when Customer adds a new member's email address to the list, that email address shall not be activated unless and until the new member receives a single confirmation e-mail from Customer requesting member's consent to be added to the list and Service Provider receives from the new member a confirmation action (such as a confirming e-mail from the new member's email address) approving such action. The confirmation e-mail sent by the Customer to new members shall not contain any advertising or any calls-to-action other than an appeal to confirm the member's subscription.
4.Charges.
Customer will be charged, and shall pay for the use of the System and the Service in
accordance with the Prices, as specified by the Service Provider from time to time. The
Prices may be modified by Service Provider at any time and any such modification shall
become effective 15 days' following the delivery of a notice in that regard pursuant to
Paragraph 11. If any such modification is not acceptable, Customer may terminate service
under this Agreement as provided in Paragraph 10. However, Customer's continued use of
the Service following the effective date of any change in Prices shall be considered
acceptance of such change. Customer is responsible for all charges arising out of its
use of the System whether or not such use is authorized by Customer.
5.Use of System Content.
(a) Customer may charge their users under separate agreements for use of the Service or
any part thereof and any information, communications, software, photos, video, graphics,
music, sounds and other material and services provided by Customer or other users of
Customer's account (collectively referred to as "Content").
(b) Customer acknowledges, and shall also notify its authorized users, that Service Provider is not responsible for and does not give any assurance to any person with respect to the validity, value, usefulness or accuracy of Content. Customer and any person using Customer's account shall bear any risk associated with the Content. Service Provider has the right to monitor the use of the System, including the Content which may appear thereupon from time to time. However, Service Provider does not pre-screen or attempt to censor or review any Content prior to its appearance on the System. Service Provider has the right (but not the obligation) to require Customer to remove, prohibit or discontinue any Content on the System which Service Provider, in its sole discretion, determines to be harmful, offensive or otherwise in violation of this Agreement.
6.Intellectual Property Rights.
(a) Content Subject to Rights
Customer acknowledges that Content on the System, whether provided by Customer or
others may include material which is the subject of and protected by copyrights,
trademarks, service marks and other proprietary rights ("Rights"). Customer acknowledges
that such Rights are valid and valuable and are protected and apply to all media which
now exists or may in the future exist. Unless specifically provided elsewhere in this
Agreement, Customer's ability to use any Content which is protected by such Rights shall
be governed by applicable law including relevant patent and trademark law.
(b) Customer Warranty
Customer agrees, and will require each and every one of its users to agree, (i) that it
will transmit on the System only Content that is not subject to any Rights in favor of
any other party or Content in which the holder of any Rights has given express consent to
such transmission, and (ii) that by transmitting or allowing the transmission of any
Content on the System, Customer or Customer's users automatically warrant that Service
Provider has the royalty free, perpetual, irrevocable, nonexclusive world-wide right to
transmit and display such Content in whole or in part on the System. Customer may obtain
the consent of its users to the covenants provided in this Paragraph by requiring such
persons to perform sign-on procedures which will confirm their agreement to and acceptance
thereof.
(c) Lawful Use
Customer agrees to use the System only for lawful purposes. Customer recognizes and agrees
that Service Provider at its sole discretion may monitor any and all areas of the System
to oversee compliance with this Agreement and Customer will so inform its users that their
use of the System will constitute consent to such monitoring. If Customer or any of its
users restricts or inhibits any other customer or user of the System, Service Provider may,
at its discretion, terminate or limit the right of Customer or Customer's user to use the
System.
7.International Usage
Customer acknowledges that its use of the System allows access to Content originating from
other customers, ICPs and third parties located in countries other than India. Customer
agrees that its access to and use of such Content may be governed (in addition to this
Agreement) by separate terms and operating policies which conform to appropriate and
applicable national laws and customs of such other countries.
8.No Warranty.
Customer expressly agrees that use of the System and the Service provided and software are
provided at the customer's sole risk, on an "AS IS", "AS AVAILABLE to the Service Provider
from Lyris" basis without warranties of any kind, either express or implied, including
warranties of non-infringement, merchantability or fitness for purpose. Refund of any
pre-paid fees, pro-rated for the period during which the system may have failed to
operate as a result of Service Provider's act or omission shall be Customer's exclusive
remedy with respect to the use of the System and the Service, and Service Provider's
liability is limited to such amount in all events. In no event shall Service Provider be
liable for any consequential, special, punitive, or incidental damages; including loss of
profits or loss of data; and on any theory of liability (including negligence).
9.Indemnification
Upon request by Service Provider, Customer agrees to defend, indemnify and hold harmless
Service Provider, its affiliated companies, licensees and ICPs from all liabilities,
claims and expenses, including attorneys' fees, arising from (a) a breach of this Agreement
or the Rules by Customer or any of Customer's users or (b) the transmission by Customer or
its users of any Content on the System, whether or not such use was authorized by Customer.
Service Provider reserves the right to approve Customer's counsel to defend any such
claims, which approval will not be unreasonably withheld, and to approve any settlement
agreement that is not fully covered by applicable insurance. Service Provider, at
Customer's expense, shall cooperate with Customer in the defense of any claims, subject to
this indemnification. Service Provider also reserves the right, at its own expense, to
assume the exclusive defense and control of any matter otherwise subject to indemnification
by Customer hereunder, and in such event, Customer shall have no further obligation to
provide indemnification for such matter.
10.Termination
Either Customer or Service Provider may terminate Customer's right to use the System at
any time. Subject to the provisions of Paragraph 8, if Customer is dissatisfied with any
term of this Agreement or any Rule, policy or practice of Service Provider in operating
the System, or in the Content appearing on the System or the amount or type of fees or
billing methods, or any change therein, Customer may terminate this agreement by delivering
written notice to Service Provider in the manner provided in Paragraph 11 and in such
instance this will be Customer's sole remedy. Customer's notice of termination will be
effective upon receipt by Service Provider. In the event that a Customer's account is so
terminated or cancelled by Customer or Service Provider, Customer will be entitled to the
refund of any fees which have been paid in advance with respect to the remainder of the
term of this Agreement provided Customer is not otherwise in breach of this Agreement.
11.Notices
Notices may be sent by personal delivery, certified mail, return receipt requested,
recognized overnight courier or by email, with a printed confirmation of receipt, to the
parties at the following addresses:
Manaskriti :
Manaskriti Software Solutions
5/8, Sevak Baidya Street
Calcutta 700029
India
Email: contact@manaskriti.com
Customer Name & Address:
Email Address of
Customer List Administrator :
12.Delays
Service Provider shall not be liable for failure to perform hereunder due to the inability
of Lyris Technologies Inc., Customer, Service Provider or any other person to connect to or
any other failure or unavailability of the Internet for any cause whatsoever, acts of God,
or of the public enemy, or of any government or agency thereof, fires, floods, epidemics,
quarantine restrictions, strikes, work stoppages, freight embargoes, severe weather,
differences with workmen, restrictions imposed by governmental agencies, war, hostilities,
riot, rebellion, delay in or lack of transportation facilities, inability to secure
materials, power failure or fluctuation or any other cause beyond the control of Service
Provider, or Service Provider's exercise of its rights under this Agreement. In the event
of delay by Service Provider due to any such cause, the date of performance of any act by
Service Provider will be postponed by such length of time as may be reasonably necessary
to compensate for such delay.
13.Scope of Services
This agreement relates solely to provision of list hosting services in respect of the
mailing list/s specified herein, with the use of the Lyris List Management Software as
provided by Lyris Technologies Inc. to the Service Provider from time to time. This
agreement does not include any services relating to web-site designing, list or site
promotion, list administration, list moderation or the like. Nor does this agreement
in any manner entitle the Customer to any right of use in respect of the Lyris List
Management Software, except as bundled with and necessary for hosting the mailing list/s
specified herein.
14.Right of Reference
The Customer agrees that in respect of any questions or matters relating hereto, or
relating to usage of the service, it shall have a right only to make reference, or have
recourse only against, Manaskriti. Manaskriti, at its sole discretion, may make a
reference to or have or allow recourse to Lyris in respect of any uresolved Customer
queries.
15.Interpretation
To the extent of any conflict between this Agreement and the Rules, this Agreement shall
take precedence. If any portion of this Agreement is held to be invalid or unenforceable
by a court of competent jurisdiction, that portion shall be construed consistent with
applicable law as nearly as possible to reflect the original intentions of the parties
and the remaining portions shall remain in full force and effect. This Agreement shall
bind and be for the benefit of the parties hereto and their respective successors and
assigns. Exhibits "A", "B" and "C" hereto are part of this agreement.
16. Privacy.
(a)To the extent and in the manner assured and allowed by Lyris, the Service Provider
shall exercise reasonable commercial efforts to make the System secure. Service Provider
shall not make Customer's passwords available to anyone who is not (i) an authorized agent
or employee of Lyris or Service Provider or the Customer or (ii) a list administrator who
has been so designated to Lyris through Service Provider by Customer in writing.
(b) Service Provider acknowledges that membership lists provided to Service Provider and
Lyris by Customer in connection with this Agreement are the property of Customer. Unless
Service Provider receives specific instructions from Customer to the contrary, it will
not sell, license, share, transfer or otherwise disclose Customer's membership lists or
Customer's list administrator's login information to any third party except as otherwise
specifically provided in this Agreement or the Rules or as required by law or a court order.
(c)Service Provider and Lyris may access Customer's membership lists in order to
unsubscribe a member who has sent to any of them a request that it do so or a complaint
to the effect that such member is unable or unwilling to unsubscribe themselves, or if
such member violates the Rules or the terms of this Agreement.
17.Jurisdiction and Applicable Law
As between the Customer and Manaskriti, inter se, this agreement shall be subject to the
exclusive jurisdiction of the Courts at Calcutta and shall be interpreted in accordance
with the laws of India.
AGREED:
Customer
Printed Name:
_____________________________________________
Signature:
_____________________________________________
Date:
_____________________________________________
List Name:
_____________________________________________
Packages
____ Plan 1
____ Plan 2 Virtual Domain ___________________
____ Plan 3 Virtual Domain ___________________
____ Plan 4 Virtual Domain # 1 ___________________
Virtual Domain # 2 ____________________
Please read: For your Virtual Domain please you must include a "preface" in front of
your organisation domain, for example: newsletter, lists or some other brief term that
relates to your list. Your Custom Domain would therefore look something like:
@newsletter.yourdomain.com
The Prices
(Exhibit A)
Packages
Plan 1 : Rs. 5,000 per month per list. Rs. 5,000 one time, non-refundable setup fee.
Covers 40,000 10kb messages per list per month (explained in better detail below)
Plan 2 : Rs. 50,000 per month. Rs. 25,000 one time, non-refundable setup fee.
Includes 20 lists, one virtual domain and 5,00,000 10kb messages per month.
Plan 3 : Rs. 1,00,000 per month. Rs. 50,000 one time, non-refundable setup fee.
Includes unlimited lists, one virtual domain and 20,00,000 10kb messages per month.
Plan 4 : Rs. 2,00,000 per month. Rs. 50,000 one time, non-refundable setup fee.
Includes unlimited lists, two virtual domains and 50,00,000 10kb messages per month.
VERY IMPORTANT NOTE: You are responsible for your minimum monthly fees each month.
By means of this contract, you agree to pay the minimum fee even you have no mailing
activity during a particular month.
Extra-cost Options
Message Volume: Size and Quantity
As per this agreement, "Message Volume" is a factor of both the actual number of
messages you send and your average message size (in kb) over a one-month period. The
package prices above include a specified number of messages and assume a monthly average
message size of 10kb. Please note: if your total message volume exceeds this amount during
a particular month-either due to message quantity or size, or both-your total bill for that
month will be higher than the package
amount.
If your monthly message volume exceeds the amount included in your package, you will be
charged for the extra mail at the effective "cost per thousand" (CPM) of your package.
The rates for 10kb messages are as follows: Plan 1 Rs. 250; Plan 2 Rs. 100; Plan 3 Rs. 50;
Plan 4 Rs. 40.
Rates for messages averaging more than 10kb follow a sliding scale based on the effective
CPM rates in calculated increments. For example, messages with an average monthly size of
20kb sent with a Plan 3 package are charged at Rs. 100 per thousand; if the monthly size
were 25kb, the charge would be Rs. 125 per thousand.
Payment & Contract Period
Contract Period : Minimum 3 months
Billing will be monthly, in advance, based on estimated volume and will be adjusted
against the actual volume consumption in the bill of the next month. Payments will be due
15 days from the date of the bill. Service Provider reserves the right to terminate,
suspend, discontinue or disable the Service to Customer at any time and/or hold and prevent
the copying, import or export of Customer's list membership data if any invoice or part
thereof remains outstanding for over 30 days from the receipt of the invoice by Customer.
In the event any default in payment continues beyond 6 months from the invoice date,
Service Provider shall then have the further right to delete any of Customer's list
membership data then residing on the System.
Changing or Modifying Packages
If your messaging requirements change over time, you may switch to a higher or lower
package. Please note that such changes will take effect during your next billing cycle,
not the current month in which you request the new plan.
Tech Support
Tech support is free by email. No other mode of support is offered or guaranteed. Support
incidents and requests shall be entertained only from authorised individuals designated as
List Owner and/or List Administrator, and not from any other list members or users.
THE RULES
(EXHIBIT B)
Note: Compliance with the Rules is a condition for use of the System.
Spamming Prohibited:
You (i.e., the Customer) may not use the Lyris Outsourcing System (also known as
Lyris.Net) to send unsolicited email ("spam"), whether it be commercial or non-commercial.
Your email will be considered unsolicited if your membership addresses are not 100%
opt-in by your members. If your membership email addresses came from harvesting, a
purchased email list, another mailing list (even with the approval of the other list
owner), or were compiled by any method other than by direct subscription from your
members, then, for the purposes of this Agreement and these Rules messages to your
list/s will be considered unsolicited (non-opt-in) email (that is, "spam").
If Service Provider or Lyris receives complaints that you are sending unsolicited
commercial or non-commercial e-mail ("spamming"), then, in addition to any other rights
that Service Provider or Lyris may have under this Agreement or under applicable law,
Service Provider or Lyris may at its sole option suspend your service pending a
reconfirmation of your entire membership list. This reconfirmation may be required by
Service Provider or Lyris in any reasonable manner it determines in its sole judgment
including, without limit, sending a single e-mail to all of your list members requesting
confirmation of their wish to maintain their subscription to such list. Members who do not
reconfirm within a reasonable time established by Service Provider or Lyris may be deleted
from the list in question. Service Provider agrees to use reasonable commercial efforts
to contact your designated list administrator by e-mail or phone before suspending
service. Your consent will be requested before Service Provider or Lyris contacts your
list members for the purposes of reconfirmation,
however, in absence of your consent to contact your list members for the purposes of
reconfirmation, Service Provider or Lyris may terminate this Agreement.
If Service Provider or Lyris determines in good faith that you have been spamming, in
addition to any other rights under this Agreement and applicable laws, (i) Service
Provider or Lyris may bring an action in any court of competent jurisdiction to enjoin
such activity, it being understood that such activity may cause irreparable harm to
Service Provider or Lyris which may not be fully compensable by monetary damages and
(ii) Service Provider or Lyris may recover from Customer monetary losses caused to
them or any of them by such activity in an amount equal to (a) US $500 for each such
item of unsolicited e-mail which Customer has sent to each separate and identifiable
e-mail address in violation of this Rule, which amount the parties agree is a fair and
reasonable estimate of losses which would be occasioned by such violation; or (b) if
Service Provider or Lyris can establish a greater amount of monetary loss, the amount of
such actual monetary loss suffered by as a result of such violation including, but not
limited to, any damage or loss (including attorney's fees) resulting from any claim made
against Service Provider or Lyris as a result of Customer's conduct in violation of this
Rule. In addition to the foregoing, Customer shall be responsible for reasonable costs
incurred by Service Provider or Lyris in bringing such actions, including reasonable
attorney's fees.
Other Unacceptable Uses:
Additionally, you may not use the System to:
1. Send email with an invalid "From:" or "Reply-to:" address. All messages posted to
your list must contain valid email addresses and you must be responsive to all replies
from members of your list, including unsubscribe requests. You may not refuse or ignore
unsubscribe requests from members of your list.
2. Harass, threaten, embarrass or cause distress, unwanted attention or discomfort to a
person or entity.
3. Post or transmit sexually explicit images or other content that is deemed by
Service Provider or Lyris to be offensive.
4. Transmit any unlawful, harmful, threatening, abusive, harassing, defamatory,
vulgar, obscene, or hateful content or content which is racially, ethnically or
otherwise objectionable, or which infringes upon the rights of any third party, as
determined by Service Provider or Lyris.
5. Impersonate any person, including but not limited to, an official of Service
Provider or Lyris or an information provider, or communicate under a false name or a
name that you are not entitled or authorized to use.
6. Intentionally or unintentionally violate any applicable local, state, national or
international law, including but not limited to any regulations having the force of law.
Membership Confirmation:
You will use a "double opt-in" (signup plus confirmation) subscription method for all
new list members, as provided in Paragraph 3(c) of the Agreement. The confirmation e-mail
you send to new members may not include advertising or calls-to-action other than an
appeal to confirm the member's subscription. If you import unconfirmed (single opt-in)
members directly into your list, or include advertising or other unsolicited
calls-to-action in the confirmation message, be advised that you do so at your own risk,
and that, in case of complaints of spamming, Service Provider and Lyris reserves the
rights described in the section entitled "Spamming Prohibited".
Unsubscribing:
All list messages must include the Lyris unsubscribe instructions in the body or footer
of the message, so that members can unsubscribe themselves from the list.
List owners should respond to member requests for manual removal from the list with
courtesy and timeliness. Please do not discard personal email messages you receive
asking to be removed from your list. Even if the user request for removal is aggressive,
unfriendly or otherwise rude, you should nonetheless make every attempt to help the user
get off your list and to resolve the situation.
Membership List:
You may not use the System for one-time mailings to a list of members after which you
delete substantially all of the membership and create a new list. Your membership must be
a stable, permanent list to which you add or delete new members and/or members subscribe
or unsubscribe themselves in the ordinary course.
Violation:
In the event you violate these Rules, Service Provider or Lyris may, in its sole
discretion, remove your list from its server and terminate your right to use the System.
List owners should be aware that they are responsible for the behavior of their list
members.
Privacy:
Service Provider and Lyris are committed to maintaining your privacy and that of your
list members.
1. Service Provider and Lyris treats private communications on or through the System as
strictly confidential.
2. For your protection, we strongly recommend you do not give your membership list to
anyone, ever.
3. The Service Provider or Lyris will access customer's membership list is to unsubscribe a
member, or for any other reason, only in the event Service Provider determines to terminate
any user or users for violation of the terms hereof. In such cases you will always be
informed of the situation and action taken.
Mailing List Details
(Exhibit C)