ICEWARP CLOUD - TERMS OF SERVICE
Last Updated: 31st May 2019 (Added/changed "Price changes")
Please read these Terms of Service carefully before accessing or using IceWarp services described below.
Acceptance of the Terms
You can accept the Terms by checking a checkbox or clicking on a button indicating your acceptance of the terms or by actually using the Services. You must be of legal age to enter into a binding agreement in order to accept the Terms. If you do not agree to the Terms, do not use any of our Services.
What is IceWarp Cloud
We provide a wide range of services under the mark “IceWarp Cloud” or “IceWarp Suite” for email, file storage, online collaboration and real-time communication in teams, as well as corresponding client and productivity applications including document, spreadsheet, presentations editing tools ("Service" or "Services"). You may use these Services for your personal and business use or for internal business purpose in the organization that you represent. You may connect to the Services using any Internet browser supported by the Services or using provided offline applications, provided to you under separate license agreements. You are responsible for obtaining access to the Internet and the equipment necessary to use the Services, as well as pay any license fees for software that you use for accessing the Services. You can create and edit content with your user account and if you choose to do so, you can publish and share such content with users from your organizations or with external users.
IceWarp makes every effort to ensure that you are 100% certain that IceWarp Cloud and all related products meet your requirements exactly before you pay for the Service, by providing you a free trial period of 14 days after the account registration, which can be optionally extended by another 14 days subject to IceWarp’s approval and provided that you duly comply with all Terms thereof. The Free Trial is limited by period of time, by number of users, by available features and otherwise. Its use may be conditioned by additional restrictions intended to prevent abuse, and such features and conditions can be amended at any time without notice. If you aim to use our Services in production, we strongly recommend upgrading to a paid plan before you do so.
Our Services are provided on a commercial subscription basis that automatically renews at the end of each billing cycle. You may select one of the Subscription plans according to the level of Service you need. You will be billed at the end of the billing cycle on a recurring basis, such as monthly or annually, unless you downgrade your paid subscription to a free plan or cancel the subscription.
When downgrading the plans, you automatically lose access to features not present in the plan you are downgrading to, and will be subject to restriction of available storage space you may keep after the downgrade, which will not apply until the expiry of your then current billing cycle.
We may offer certain Services for the purpose of testing and evaluation for free ("Free Trial" or “Free Services”). You agree that we have the sole authority and discretion to determine the period of time for your free testing and evaluation of the Services. We can anytime amend the features and conditions of the Free Services and prematurely terminate your account and delete all data associated with it. You will be under no obligation to acquire a subscription to use any paid Service as a result of your subscription to any of the Free Services. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Free Services with or without notice to you. You agree that IceWarp will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, termination, suspension or discontinuance of any of the Free Services for any reason.
At the time of automatic renewal, the subscription fee will be charged to the Credit Card registered during the initial sign up. We provide you the option of changing the details if you would like the payment for the renewal to be made through a different Credit Card, or if the card’s expiry date is approaching. If you do not wish to renew the subscription, you must cancel it prior to the renewal date, regardless of the payment method, card’s expiry date or card’s credit balance. If you have not downgraded to a free service or if you have not canceled the subscription in administration, you will be presumed to have authorized IceWarp to charge the subscription fee. We will provide an additional grace period and send you a notice in case your payment is overdue, upon expiry of which the service will be suspended and your account may be eventually terminated. Failure to pay the subscription fee, delays on your part or account termination due to non-payment, do not cancel your obligations to pay for the Service. Temporary suspension of the service due to non-payment or non-compliance with the Terms does not limit your obligation to pay the subscription fee in full.
Your credit card information provided during the account registration or when switching from free (trial) to paid plan will be collected and stored by the payment processor designated by IceWarp; IceWarp itself will only have access to the last 4 digits of your credit card number. To verify the credit card information for accuracy and legitimacy, the processor would place either a $0.00 or $1.00 authorization on the credit card. Despite some banks may show it as pending charge this is only a temporary block on the cardholder's account that will not be actually charged.
Payments for subscription plans of duration of less than one year or less than U.S. $10,000 (or other currency equivalent) can be made only by Credit Card or PayPal. Other supported payment methods include a purchase order, that may be subject to further conditions, check (available in the U.S. only) and wire transfer.
From time to time, we may change the price of any Service or charge for use of Services that are currently available free of charge. Any increase in charges will become applicable after a price protection period which lasts for twelve months from the start of paid subscription. Upon expiry of the price protection period, your subscription will be priced at the current pricelist price. We will communicate any price changes at least 90 days in advance and if the prices have changed significantly from the last applicable amounts, you may cancel the Subscription without further penalty to you.
We reserve the right to cancel any subscriptions and terminate your account prematurely and without compensation if the subscription price, taxes, charges, amount formats or currency is incorrect in our sole discretion, such as due to various errors within the billing system or in case the billing system has been temporarily circumvented by any person to provide a benefit of lower than intended and lawful prices.
You can use the Service free of charge and evaluate it for a limited period. If the Service meets your exact needs and you wish to continue to use it, you may select one of the paid subscription plans. If for some reason the Service does not meet your requirements, you are under no obligation to purchase and you simply let the trial period run out. When the trial period runs out, all your data will be wiped out, except for your registration details to avoid comeback to the free trial.
Once we have provided the Service to you, there is no physical product to return to us. Thus we cannot accept refunds for paid plans of the Services that have already been delivered for full or for part of the Subscription period. In case the Subscription is for 1 month and the 1st day of the billing cycle has already started, the monthly charge will not be refundable. In case the Subscription is for 1 year and the 1st month of the billing cycle has already started, the annual charge will not be refundable.
When We Modify Terms of Service
We may modify the Terms upon notice to you at any time through a service announcement or by sending email to your primary email address. If we make significant changes to the Terms that affect your rights, we will attempt to provide you with at least 30 days advance notice of the changes by email to your primary email address. You may terminate your use of the Services by providing IceWarp notice by email within 30 days of being notified of the availability of the modified Terms if the Terms are modified in a manner that substantially affects your rights in connection with use of the Services. In the event of such termination, you will be entitled to prorated refund of the unused portion of any prepaid fees. Your continued use of the Service after the effective date of any change to the Terms will be deemed to be your agreement to the modified Terms.
Your Obligations When Registering an Account
You need to sign up for a user account by providing all required information in order to access or use the Services. If you represent an organization and wish to use the Services for corporate use, we require that you, and all other users from your organization, sign up for user accounts by providing your corporate contact information. Where possible, we require that you use your corporate email address. You agree to: a) provide true, accurate, current and complete information about yourself as prompted by the sign up process; and b) maintain and promptly update the information provided during sign up to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, outdated, or incomplete, or if IceWarp has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, or if the selected usernames and/or domain names resemble or infringe on trademarks not owned by you, IceWarp may terminate your user account and refuse current or future use of any or all of the Services.
Organization Accounts and Administrators
When you sign up for an account for your organization you may specify one or more administrators. The administrators will have the right to configure the Services based on your requirements and manage end users in your organization account. If your organization account is created and configured on your behalf by a third party, it is likely that such third party has assumed administrator role for your organization. Make sure that you enter into a suitable agreement with such third party specifying such party’s roles and restrictions as an administrator of your organization account.
You are responsible for i) ensuring confidentiality of your organization account password, ii) appointing competent individuals as administrators for managing your organization account, and iii) ensuring that all activities that occur in connection with your organization account comply with this Agreement. You understand that IceWarp is not responsible for account administration and internal management of the Services for you.
You are responsible for taking necessary steps for ensuring that your organization does not lose control of the administrator accounts. In the absence of any specified administrator account recovery process, IceWarp may provide control of an administrator account to an individual providing satisfactory proof to IceWarp demonstrating authorization to act on behalf of the organization. You agree not to hold IceWarp liable for the consequences of any action taken by IceWarp in good faith in this regard.
Personal Data and Privacy
When processing personal data provided by You to IceWarp through the Services, IceWarp acts as a Processor and You act as a Controller, i.e. under the conditions set forth below in this article hereof. Terms and conditions of data processing are provided in the Data Processing Agreement, which as Annex No. 1 constitutes an integral part hereof.
Communications from IceWarp
The Service may include certain communications from IceWarp, such as service announcements, administrative messages and newsletters. You understand that these communications shall be considered part of using the Services. As part of our policy to provide you total privacy, we also provide you the option of opting out from receiving newsletters from us. However, you will not be able to opt-out from receiving service announcements and administrative messages.
Free Services may display third party advertisements within the interface not related in any way to the Services. Throughout your use of the Service, IceWarp may place advertisiments within the Service interfaces in a manner appropriate to either free or paid usage, promoting its Service plans, complimentary products and services, as well as solicit them in other Service related communication.
The Services may only be used for lawful purposes. We reserve the right to terminate your access to the Services without compensation if there are reasonable grounds to believe that you have used the Services for any illegal or unauthorized activity, for spamming or was trying to circumvent the Services’ security.
In addition to all other terms and conditions of this Agreement, you shall not: (i) transfer the Services or otherwise make it available to any third party; (ii) provide any service based on the Services without prior written permission; (iii) publish any personal or confidential information belonging to any person or entity without obtaining consent from such person or entity; (iv) use all reasonable efforts to protect from prohibited use of the services and promptly notify IceWarp of any prohibited use of, or access to, the Services of which you become aware.
You may not (i) violate the security or integrity of any application, computer system or network device, and not attempt to gain unauthorized access to, compromise, scan or test the normal functioning, operation or security thereof; gain unauthorized access to the user accounts or passwords of other users of any system; (ii) monitor or eavesdrop any data, information or communications on any network or system not owned by You without authorization; attempt to intercept, redirect or otherwise interfere with communications intended for others; (iii) avoid the use limitations related to the Services, such as user, feature and storage restrictions, alter your or other user’s credit balances or attempt to influence the normal consumption of credit; (iv) use the Services in any manner that could damage, disable, overburden, impair or harm any server, network, computer system, resource of IceWarp; engage in any activities that may interfere with the ability of others to access or use the Services, their system, or the Internet; (v) violate any applicable local, state, national or international law, export control laws or regulations; (vi) fraudulently conceal, forge or otherwise falsify your identity, email address or IP address to mislead any person as to the identity or origin of any communication connected to use of the Service; (vii) advertise, transmit, or otherwise make available gambling sites or services through the Service; (viii) offer or disseminate fraudulent goods, services, schemes, or promotions or engage in other deceptive practices and fraudulent activies by the means of the Service; (ix) obtain unauthorized access to the user accounts or passwords of other users of the Service; (x) operate insecure network services like open mail relays or facilitate unauthorized access to the Services by using weak passwords and low or inexistent security policies.
You agree to be solely responsible for the contents of your transmissions through the Services. You may not use the Services for illegal purposes or for the transmission of illegal content, i.e. material that is unlawful, defamatory, harassing, libelous, invasive of another's privacy, abusive, threatening, harmful, vulgar, pornographic, obscene, or is otherwise objectionable, offends religious sentiments, promotes racism, contains viruses, worms or malicious code that may damage, interfere with or intercept system, program, or data, or that which infringes or may infringe intellectual property or other rights of another.
You agree not to use the Services for the transmission of "junk mail", "spam", "chain letters", “phishing” or unsolicited mass distribution of email or bulk email to addresses obtained from users without their consent where opt-in is required by law. Spamming in a broader sense further includes but is not limited to arranging a third party to transmit unsolicited mass or commercial email on your behalf, collecting responses from unsolicited mass email, redirecting bounce-backs to users of the Service, transmitting a large amount of email to users of the Service with the intention of impairing their use of Service, using another party's mail server to relay email without their permission, posting large amounts of off-topic messages to group chats, using disruptive number of hashtags and mentions, cross-posting a message across multiple rooms or posting any commercial messages or advertisements. Spamming activities, as may be facilated by email, but also by chat, group chat and text messaging, as well as unsolicited calls, are strictly prohibited during your use of the Service.
User Generated Content
You may transmit or publish content created by you using any of the Services or otherwise. However, you shall be solely responsible for such content and the consequences of its transmission or publication. Any content made public will be publicly accessible through the Internet and may be indexed by search engines. You are responsible for ensuring that you do not accidentally make any private content publicly available. Any content that you may receive from other users of the Services, is provided to you AS IS for your information and personal use only and you agree not to use, copy, reproduce, distribute, transmit, broadcast, display, sell, license or otherwise exploit such content for any purpose, without the express consent of the person who owns the rights to such content. In the course of using any of the Services, if you come across any content with copyright notice(s) or any copy protection feature(s), you agree not to remove such copyright notice(s) or disable such copy protection feature(s) as the case may be. By making any copyrighted/copyrightable content available on any of the Services you affirm that you have the consent, authorization or permission, as the case may be from every person who may claim any rights in such content to make such content available in such manner. Further, by making any content available in the manner aforementioned, you expressly agree that IceWarp will have the right to block access to or remove such content made available by you, if IceWarp receives complaints concerning any illegality or infringement of third party rights in such content. By using any of the Services and transmitting or publishing any content using such Service, you expressly consent to determination of questions of illegality or infringement of third party rights in such content by the agent designated by IceWarp for this purpose.
Your Intellectual Property Rights
We respect your right to ownership of content created or stored by you. You own the content created or stored by you. Unless specifically permitted by you, your use of the Services does not grant IceWarp the license to use, reproduce, adapt, modify, publish or distribute the content created by you or stored in your user account for IceWarp’s commercial, marketing or any similar purpose. But you grant IceWarp permission to access, copy, distribute, store, transmit, reformat, publicly display and publicly perform the content of your user account solely as required for the purpose of providing the Services to you, particularly, system administration and data backup.
If you believe that your trademark or copyright rights have been violated by any user of the Service, please send us a notice at the address disclosed below.
IceWarp engages to keep confidentiality about all facts and data of its customer. This undertaking shall survive the termination of the agreement. The undertaking specified in this paragraph shall not apply to information disclosed by IceWarp to a subcontractor by reason of the performance of the Services and information disclosed to a third party in order to fulfill its legal obligations. IceWarp is eligible to monitor the operation of the Services use as well as to engage other appropriate technical resources therefor with the objective to improve the provision of Services, to find or examine the misuse of Services.
DMCA Takedown Notice
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials shared by users of the Service infringe your copyright, you (or your agent) may send IceWarp a notice requesting that we remove the material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send IceWarp a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details.
Our designated copyright agent for notice of alleged copyright infringement appearing on the Website is:
6225 BRANDON AVE
SPRINGFIELD, VA 22150-2524
If we receive a complaint from any person against you with respect to your activities as part of use of the Services, we will forward the complaint to the primary email address of your user account. You must respond to the complainant directly within 10 days of receiving the complaint forwarded by us and copy IceWarp in the communication. If you do not respond to the complainant within 10 days from the date of our email to you, we may disclose your name and contact information to the complainant for enabling the complainant to take legal action against you. You understand that your failure to respond to the forwarded complaint within the 10 days’ time limit will be construed as your consent to disclosure of your name and contact information by IceWarp to the complainant.
All of the text, images, logos, software, trademarks, service marks or other material contained on our website and in our products and services are owned by IceWarp or its affiliates or the respective third party licensors that may be mentioned for identification purposes only. Your use of and access to our Services does not grant you any license or right to display or use in any way any of the aforementioned marks, without prior permission of the respective owner.
Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN AS-IS-AND-AS-AVAILABLE BASIS. ICEWARP EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ICEWARP MAKES NO WARRANTY THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. USE OF ANY MATERIAL DOWNLOADED OR OBTAINED THROUGH THE USE OF THE SERVICES SHALL BE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, MOBILE TELEPHONE, WIRELESS DEVICE OR DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL, OBTAINED BY YOU FROM ICEWARP, ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
Limitation of Liability
YOU AGREE THAT ICEWARP SHALL, IN NO EVENT, BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER LOSS OR DAMAGE WHATSOEVER OR FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, COMPUTER FAILURE, LOSS OF BUSINESS INFORMATION, OR OTHER LOSS ARISING OUT OF OR CAUSED BY YOUR USE OF OR INABILITY TO USE THE SERVICE, EVEN IF ICEWARP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL ICEWARP’S ENTIRE LIABILITY TO YOU IN RESPECT OF ANY SERVICE, WHETHER DIRECT OR INDIRECT, EXCEED THE FEES PAID BY YOU TOWARDS SUCH SERVICE.
You agree to indemnify and hold harmless IceWarp, its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorney's fees and costs) arising out of or relating to any claims that you have used the Services in violation of another party's rights, in violation of any law, in violations of any provisions of the Terms, or any other claim related to your use of the Services, except where such use is authorized by IceWarp.
Governing law & jurisdiction
The Terms will be governed by the laws of Virginia, without regard to conflict/choice of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
All disputes relating thereto or between you and IceWarp shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The arbitrators must not necessarily judge according to the strict law but as a general rule ought chiefly to consider the principles of practical business and subject matter of this Agreement.
Subject to applicable legislation, IceWarp may provide the service from anywhere in the world and may, at any time, transfer the provision of the service from one location to another. You are solely responsible to research the different data residency policies applicable for any country from where IceWarp may provide the services, and establish in a separate service level agreement where your data can and cannot be stored.
We may suspend your user account or temporarily disable access to whole or part of any Service in case of unpaid Service fees, in the event of any suspected illegal activity, as a result of extended periods of inactivity or upon requests by law enforcement or other government agencies. Objections to suspension or disabling of user accounts should be made to firstname.lastname@example.org within thirty days of being notified about the suspension.
We reserve the right to terminate your user account and deny the Services upon reasonable belief that you have violated the Terms, if your account has been suspended for more than 30 days without remedy that caused the suspension, and to terminate your access to any Free Services in case of unexpected technical issues or discontinuation of the Free Service. Further, we reserve the right to terminate unpaid accounts upon expiry of additional 30 days period to settle the account, and free service accounts that are inactive for a continuous period of 30 days. In case of accounts with more than one user, if at least one of the users is active, the account will not be considered inactive.
You have the right to terminate your user account if IceWarp breaches its obligations under these Terms and only in such event, you will be entitled to prorated refund of any prepaid fees. Termination of user account will include denial of access to all Services, deletion of information in your user account such as your email address and password, deletion of all data in your user account, and, if your account is an administration account associated with other user accounts, termination thereof and deletion of all their data.
Data Deletion Policy
Infringed content removal will be made without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, IceWarp will also terminate a user's account if the user is determined to be a repeat infringer.
In the event of aforementioned account termination, all data and users associated with such account will be deleted. We may provide you prior notice of such termination and option to download your data.
IceWarp keeps copies of your data for a maximum amount of 3 days to enable rollback in case of accidental data deletion. After data deletion following an account termination, we will no longer keep any backups allowing to recover the deleted data or restore your access to the Service.
If you will have any questions regarding your legal agreements and its provisions, please don’t hesitate to contact us at email@example.com.
Our notices regarding your use of the Service will be sent to your account’s primary email address you or your administrator has established during the first registration.
Service Level Agreement
Your use of the Services is subject to the following criteria for service level commitments under the highest quality of customer service.
Service Availability 99.9% (allowed Downtime of 43 minutes per month)
Support Availability 24 hours per day, 365 days per year
Planned Outage Notification Period 5 Business Days (Unless for Emergency)
Business Hours 09:00 – 17:00 PST Monday – Friday (excl. Public Holidays)
Backup Schedule Once per Day, 3 Days Rollback
Downtime means any interruption to availability of Services exceeding 10 minutes, excluding interruptions resulting from:
• Planned outages, scheduled maintenance
• Automatic Service updates performed outside of Business Hours, or at any time if needed to maintain the effectiveness of the Service
• Emergency downtime needed to rescue life or protect important assets
• Infrastructure or Network outages caused by parties other than IceWarp
• Any other circumstances outside the reasonable control of IceWarp, including without limitation interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software (including, without limitation, ecommerce software, payment gateways) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of this SLA;
• Any acts or omissions of customer (or acts or omissions of others engaged or authorized by customer), including, without limitation, custom development, any negligence, willful misconduct, or use of the Services in breach of the Terms;
• Any interruption resulting from or caused by faults in hardware or software endpoints provided or controlled by customer.
If the total downtime recorded within a calendar month after deducting the above interruptions and deducting any brief outages of less than 10 minutes exceeds the allowed 43 minutes, you are eligible for free credit for the Service upon submitting a claim for the discount within 14 days after the end of the month in which the major interruption to service availability occurred.
The free credit will be calculated from the Service fees prorated by number of days when the excessive downtime occurred. Such free credit cannot be claimed where your payments of Service fees are not current. The free credit is your only remedy in regards to service availability and needs to be consumed within the following two months. If the Service availability does not satisfy the 99.9% standard for two consecutive months, you may terminate your use of the Services before the end of the billing cycle and be entitled to prorated refund of any unused portion of any prepaid fees. The Free Credit is non-refundable and cannot be exchange for money.
We are constantly improving the Services. We may add or remove functionalities or features at any time. We will use best effort to inform you in advance of major service upgrades. You may not opt out from the modifications of service and may not choose when upgrades come into effect.
IceWarp Cloud provides ability for the organization to adjust its storage requirements on demand. Initial mailbox and file storage settings are chosen to conserve space (Standard 100GB, Professional 500GB), but can be expanded within the plan’s limit (1TB, 5TB respectively) for no additional fee, by request to Customer portal.
ANNEX 1 – DATA PROCESSING AGREEMENT
1. Contents of this Annex No. 1 represent Data Processing Agreement concluded between You and IceWarp. This Data Processing Agreement governs data processing performed by IceWarp (as a Processor) for You (as a Controller) as a part of Services based on the agreement concluded between You and IceWarp governing your use of IceWarp’s Services such as provision and management of web applications, including Email, Calendaring, Online Documents Editing, TeamChat, Voice and Video calls and personal secure online Storage.
2. The term “Applicable Data Protection Legislation” refers to (i) the European Regulation 2016/679 relating to the processing of Personal data (hereinafter “GDPR”) as of its date of application, and (ii) any other laws relating to the processing of Personal data applicable during the term of this Annex No. 1.
3. All capitalized terms used in this Annex No. 1 but not otherwise defined herein have the meanings given to them in the GDPR.
4. Each party is obliged to comply with the relevant obligations of the Applicable Data Protection Legislation that apply to the performance of this Annex No. 1 in relation to their respective role as further described below.
5. Applicability of this Data Processing Agreement is excluded if both IceWarp subsidiary and customer are located outside of the European Union or other member states of European Economic Area which adopted rules pursuant to GDPR. unless (i) the processing activities are related to the offering of Services based on the agreement concluded between You and IceWarp, irrespective of whether a payment of the data subject is required, to such data subjects in the European Union, or (ii) monitoring of behavior of the data subject takes place within the European Union.
1. You hereby authorize IceWarp to process the Personal data of your employees and contractors and other persons provided by You to IceWarp within the Services (hereinafter “Data Subjects”). You act as a Controller and IceWarp (as a Processor) is obliged to process Personal data only on your behalf. IceWarp processes Personal data to the extent necessary for due performance of the his obligations ensuing from this Annex No. 1 and the agreement.
III. Subject-matter of the processing, categories of the Data Subjects and type of Personal data
1. Subject-matter of the processing are the Personal data of Data Subjects provided by You to IceWarp within the Services, especially identification and contact information, messages, digital data regarding the nature of the provided hosting service, data about use of Services and data about the behavior of Data Subjects in relation to the provided Services (hereinafter “Personal data”).
IV. Nature and purpose of the processing
1. IceWarp processes the Personal data automatically with the use of statistical and analytical methods aided by computer technology. Occasional manual Personal data processing may occur.
2. The purpose of the Personal data processing is defined by the purpose of the Services provided on the basis of the agreement, which mainly includes provision and management of web applications, including Email, Calendaring, Online Documents Editing, TeamChat, Voice and Video calls and personal secure online Storage, as specified in relevant technical specification.
V. Duration of the processing
1. The Personal data processing takes place during the term of the agreement. IceWarp’s obligations concerning the protection of the Personal data will be observed during the whole term of the agreement unless, by the provisions of the agreement, these obligations persists beyond the end of its term.
VI. Representations and warranties
1. You represent and warrant, that as of the day hereof your duties imposed by Applicable Data Protection Legislation have been duly met, in particular:
a. You have been processing the Personal data lawfully and for the purpose, in the scope, by means and methods specified herein;
b. You inform the Data Subjects on processing of their Personal data in a manner and extent prescribed by Applicable Data Protection Legislation;
c. You enable the Data Subjects to exercise their rights under Applicable Data Protection Legislation;
d. You observe your duty to notify the Office for Personal Data Protection on the Personal data processing, if such duty applies to You;
e. You stop processing the Personal data at the moment the Personal data become unnecessary for the purpose for which the Personal Data are processed;
f. You observe all of Your remaining duties arising from the Applicable Data Protection Legislation;
g. and undertake to observe the abovementioned duties during the whole term of the agreement.
VII. Obligations of IceWarp
1. IceWarp is obliged to:
a. process Personal data according to Your strict and clear instructions in writing and for no other purposes than the ones expressly approved by You in writing. To exclude any doubts, the processing of the Personal data in accordance with performance of the agreement and this Annex No. 1 is deemed to be made in accordance with Your instructions;
b. to ensure that persons authorized to process personal data commit themselves to confidentiality or comply with the relevant statutory duty of confidentiality;
c. taking into account the nature of the processing, assist You, by means of appropriate technical and organizational measures and if necessary, in order to meet Your obligation to respond to requests for the rights of the Data Subject and exercise their rights;
d. cooperate with You in order to allow You the assessment and document compliance with the processing of Personal data carried out as a result of this Annex No. 1, taking into account the nature of the processing and the available information;
e. assist You in meeting Your obligations with:
• ensuring a level of security of processing;
• reporting Personal data breaches to the Office for Personal Data Protection and, where necessary, to Data Subjects;
• undertaking Data protection impact assessments; and
• consulting the Office for Personal Data Protection prior to processing, while taking into account the nature of the processing and the available information from You;
f. inform You about Data Subjects’ requests and/or complaints IceWarp may receive in relation to the processing of the Personal data;
g. follow Your instructions in matters of transferring Personal data to third countries/international organization. If following of instructions is forbidden by Union or Member State law to which IceWarp is a subject, IceWarp informs You of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
2. Performance of subsections VII.1.c to VII.1.e is reimbursable in accordance with IceWarp’s pricelist. If the respective activity is not specified in this pricelist, reimbursement shall be introduced from the side of IceWarp on Your request.
VIII. Involving of other processors and transfer to the third countries
1. You hereby explicitly agree with the involvement of other processors of which IceWarp owns a majority share (directly or indirectly) or which belongs to IceWarp's group of companies. Furthermore, IceWarp is entitled to involve other processors in the Personal Data processing or replace the processors with new processors in compliance with your written authorization which You hereby grant. IceWarp undertakes to inform You of any intended changes regarding the acceptance or replacement of other processors and to give you the opportunity to raise an objection to these changes. IceWarp publishes the intended changes regarding the acceptance or replacement of other processors on IceWarp’s above mentioned website at least 1 month before the intended effect of such changes or replacement; the information obligation towards to You is hereby fulfilled.
2. In any case, IceWarp shall require its personnel and its subcontractors to comply with Applicable Data Protection Legislation, with the same obligations as those defined hereunder and with reinforced confidentiality obligations.
3. Where IceWarp intends to rely on third parties located in countries out of the European Union and other member states of European Economic Area which adopted rules pursuant to GDPR, it shall first obtain your express prior consent to such transfer of the Personal data.
4. You hereby consent to the transfer of your Personal data to the third parties located in countries out of the European Union and other member states of European Economic Area which adopted rules pursuant to GDPR and also to third countries, if conditions stipulated in Art. 44-49 GDPR are fulfilled, according to data storage options listed on IceWarp website. IceWarp informs You about any change of the country you selected to store your data, to give you the opportunity to oppose to any new transfer.
IX. Security of personal data
1. IceWarp has implemented and maintains technical and organizational measures to prevent unauthorized or accidental access to the Personal data, their change, destruction or loss, unauthorized transfers, or other unauthorized processing thereof, as well as any other abuse of the Personal data.
2. IceWarp has implemented and maintains, in particular, following technical measures to ensure an appropriate level of security in accordance to risks, rising from the particular processing of personal data, including:
a. pseudonymization and encryption of the Personal data;
b. the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services – these measures and their correct operation are subject to regular checks;
c. the ability to restore the availability and access to the Personal data in a timely manner in the event of a physical or technical incident;
d. a process for regular testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing;
e. logs of performed erasures of Personal data;
f. multi-level firewall;
g. malware, ransomware and spyware antivirus protections;
h. unauthorized access monitoring;
i. encrypted data transfers;
j. access to the Personal data is restricted to authorized personnel only;
k. servers with Personal data are kept physically locked in the data centres; and
l. data back-ups are stored in separate geographic location, transferred and stored encrypted and only authorized personnel may access them.
3. In the event IceWarp reasonably believes that there has been any potential or actual unauthorized or unlawful access to, or potential or actual use or disclosure of, the Personal data, IceWarp notifies You without undue delay after becoming aware of such Personal data breach.
X. Final provisions
1. Finally, upon termination or expiry of the agreement, IceWarp ceases any processing of the Personal data and returns and/or deletes the Personal data in accordance with the termination assistance services plan as defined in the agreement, unless applicable laws require storage of the Personal data. If no termination assistance services plan is defined, IceWarp deletes or returns all the Personal data to You according to your choice within 30 days from the agreement termination or expiry.
2. In case IceWarp expends any costs in relation to providing You, data protection authorities or Data Subject with assistance or cooperation in accordance with this article or the Applicable Data Protection Legislation or in relation to carrying out your decisions, IceWarp is entitled to full compensation of such costs from You.
3. The parties hereby provide that if there is a damage (including both harm to assets and liabilities and non-pecuniary harm) incurred by IceWarp because of the breach of Your obligations under the Applicable Data Protection Legislation, You provide IceWarp with full compensation for such damage. The compensation for damage comprises, in particular, of (i) compensation for damage (including both monetary and non-pecuniary harm) incurred by Data Subjects as provided by the Applicable Data Protection Legislation and (ii) compensation for fines imposed upon IceWarp by data protection authority or other authority.
4. IceWarp is not obliged to compensate damages, resulting from substantively inaccurate, incomplete or otherwise incorrect instruction, received from You, despite the fact that IceWarp informed You about such defect of instruction in advance.
5. The parties expressly agree that liability of IceWarp for any damage caused by breach of IceWarp’s obligations under the Applicable Data Protection Legislation, including any fines imposed upon You by data protection authority or other authority are limited in accordance with the Terms.