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PocketMail Inc. ("PocketMail Inc.",
"us," "we" or "our"), will provide PocketMail® Services and Pocket.com.™
information services ("Services") to you ("Customer") as stated
in this Agreement and pursuant to any operating rules or services
that may be published by PocketMail Inc. on its Website from time
to time. Subject to availability, we will provide
the PocketMail services (which includes an electronic mail ("e-mail")
service component) and the Pocket.com. information services (which
includes information content delivered to and/or from Customer's
hardware device ("Services")) to Customer and Customer will pay
for such Services in accordance with a rate plan selected by Customer
as set forth in Customer's Service Order ("Service Order"). All
such payments will be non-refundable. Customer's order of Services
and products is subject to credit approval by us. We may require
a guaranty of payment by a person or entity approved by us. Customer
must maintain satisfactory credit with us in order to receive and
to continue to receive the Services and products. Customer will
not use Services and the hardware device to access the Services
or any product that contains PocketMail and/or PocketMail Inc. technology
("Device") for any unlawful, fraudulent or abusive purpose, or in
any unlawful, fraudulent or abusive manner. Services are available
within the operating range of our PocketMail and PocketMail Inc.
Network ("PocketMail Network"). Coverage and quality of Services
can be affected by atmospheric, geographic, topographic or other
conditions beyond our control.(a) License Grant. Pursuant to the
terms of this Agreement, PocketMail Inc. hereby grants to you a
limited, non-exclusive, non-transferable (except as set forth herein)
license to use on only one (1) Device the proprietary PocketMail
Inc. software installed on such Device that enables such device
to communicate with the PocketMail Network ("Software").
(b) Limitations on Use; No Reverse Engineering. You agree that you
will not decompile, disassemble, or otherwise reverse engineer the
Software, except to the extent that such restriction is expressly
prohibited by applicable law. You may not modify, adapt, create
a derivative Work, merge, or translate the Software without the
prior written consent of PocketMail Inc. You may not copy, rent,
lease, sell, sublicense, assign, loan, time-share or otherwise transfer
or distribute copies of the Software to others, except as set forth
in this Agreement. You may permanently transfer this license to
another user to whom you transfer the Device but only if the recipient
agrees to be bound by all of the terms of this Agreement.
(c) Intellectual Property Rights. You acknowledge that PocketMail
Inc. or its licensors ("Suppliers") retain exclusive ownership of
all copyrights, trademarks, patents and/or other intellectual property
rights in the Software. You are not granted any rights in the Software
other than the limited license rights expressly set forth above.
(a) Email Privacy Policy. As part
of the Services, PocketMail Inc. is providing Customer with a capability
to send and receive e-mail using a Device via the Internet and on
the PocketMail Network. E-mail is private correspondence between
the sender and the recipient. It is PocketMail Inc.'s policy to
respect the privacy of its Customers. Therefore, PocketMail Inc.
will not monitor, edit, or disclose the contents of a Customer's
private communications unless required to do so by law or in the
good faith belief that such action is necessary to: (1) conform
to the law or comply with legal process served on PocketMail Inc.;
(2) protect and defend the rights or property of PocketMail Inc.;
or (3) act under exigent circumstances to protect the personal safety
of its members or the public. Customer acknowledges and agrees that
PocketMail Inc. neither endorses the contents of any Customer communications
nor assumes responsibility for any threatening, libelous, obscene,
harassing or offensive material contained therein, any infringement
of third party intellectual property rights arising therefrom or
any crime facilitated thereby. Customer acknowledges and agrees
that certain technical processing of e-mail messages and their content
may be required to: (1) send and receive messages; (2) conform to
connecting networks' technical requirements; (3) conform to the
limitations of the Service; or (4) conform to other similar requirements.
(b) Customer Account, Password and Security. Once you become a Customer
of the Service, you shall receive a password and account. Furthermore,
you are entirely responsible for any and all activities which occur
under your account. You may change your password or icon at any
time by following posted instructions; subject to the terms of this
Agreement, you may also set up a new account and close an old one
at your convenience. Customer agrees to immediately notify PocketMail
Inc. of any unauthorized use of Customer's account or any other
breach of security known to Customer. Customer's right to use the
Service is personal to Customer. Customer agrees not to resell or
make any commercial use of the Service, without the express written
consent of PocketMail Inc.
(c) E-mail Message Storage and Other Limitations. PocketMail Inc.
assumes no responsibility for the deletion or failure to store e-mail
messages and/or PocketMail Inc. information content. PocketMail
Inc. has set a fixed upper limit on the number of messages a Customer
may send or receive through the Service based upon the Payment Plan
set forth in the Service Order.
(d) Downtime. PocketMail Inc. assumes no responsibility for interruptions
in the Services, or any portion thereof, (including mailbox consolidation
polling data or transfer of data from your existing e-mail accounts)
that from time to time may be inaccessible or inoperable for various
reasons, including (i) equipment or software malfunctions; or (ii)
causes beyond the reasonable control of PocketMail Inc. or which
are not reasonably foreseeable by PocketMail Inc., including interruption
or failure of telecommunication or digital transmission links, hostile
network attacks or network congestion or other failures (collectively,
"Downtime"). PocketMail Inc. shall use commercially reasonable efforts
to minimize any disruption, inaccessibility and/or inoperability
of the Services in connection with Downtime.
(e) Customer Conduct. Customer is solely responsible for the contents
of his or her transmissions through the Service. Customer's use
of the Service is subject to all applicable local, state, national
and international laws and regulations. Customer agrees: (1) to
comply with US law regarding the transmission of technical data
exported from the United States through the Service; (2) not to
use the Service for illegal purposes; (3) not to interfere or disrupt
networks connected to the Service; and (4) to comply with all regulations,
policies and procedures of networks connected to the Service. The
Service makes use of the Internet to send and receive certain messages
and information; therefore, Customer's conduct may be subject to
Internet regulations, policies and procedures mandated by law. Customer
will not use the Service for chain letters, junk mail, spamming
or any use of distribution lists to any person who has not given
specific permission to be included in such a process. Customer agrees
not to transmit through the Service any unlawful, harassing, libelous,
abusive, threatening, harmful, vulgar, obscene or otherwise objectionable
material of any kind or nature. Customer further agrees not to transmit
any material that encourages conduct that could constitute a criminal
offense, give rise to civil liability or otherwise violates any
applicable local, state, national or international law or regulation.
Attempts to gain unauthorized access to other computer systems are
prohibited. Customer shall not interfere with another Customer's
use and enjoyment of the Service or another entity's use and enjoyment
of similar services. PocketMail Inc. may, at its sole discretion,
immediately terminate Service should Customer's conduct fail to
conform with these terms and conditions of this Agreement.
(f) Footers in Outgoing E-mail. You give PocketMail Inc. the right
to add, at its option and without the payment of any fees by PocketMail
Inc., footers containing content of a promotional or similar nature
to any and all of your outgoing e-mail messages distributed via
the Services. For example, PocketMail Inc. may add the following
as a footer to each of your outgoing e-mails: "This message sent
via PocketMail! Get Real Mobile E-Mail at www.pocketmail.com." Customer is responsible for payment
for all charges for Services and products, including, but not limited
to, recurring quarterly or annual charges, e-mail charges, applicable
local or toll charges, connection charges, usage charges, application
charges, and all applicable taxes and governmental surcharges. Customer
is responsible for Services provided to each Customer account that
our records indicate was acquired by Customer regardless of the
identity of the person who actually uses or has possession of the
Device at the time Services are provided. The specific terms of
the charges shall be outlined in the Service Order.
Recurring quarterly charges for Services
will be invoiced quarterly in advance if your Service Order specified
a quarterly plan and annually in advance if your Service Order specified
an annual plan. We may also invoice you for Services for usage occurring
prior to the close of the billing cycle being invoiced in the event
these charges have not been invoiced. Invoicing cycles and dates
may change from time to time. Activation of your Customer account
authorizes PocketMail Inc. to automatically bill your credit card
in advance for the initial period of this Agreement and for all
renewal periods of this Agreement. In addition, or instead, we may
require payment in advance by money order, cashier's check or similarly
secured form of payment. If we are required to take action beyond
invoicing Customer for charges in order to receive payment, Customer
will pay our reasonable costs and expenses of collection. Such costs
and expenses include, without limitation, attorneys' fees and expenses,
the fees of any collection agency and court costs. Customer must
promptly notify us of any change in Customer's invoicing address.
Payments will be past due if payment is not received by the due
date shown on such invoice. Customer must raise any dispute that
it has regarding any charge by PocketMail Inc. invoiced to it within
30 days of the date of the invoice or Customer will be deemed to
have accepted the invoice. Customer may give notice of any dispute
by calling PocketMail Inc.'s Customer Service. Customer calls to
sales or general business offices will not be considered notice
of a dispute. Customer does not have to pay any disputed charges
while we investigate them; however, amounts not in dispute must
be paid by the due date. Customer will be invoiced for all
taxes and other charges levied on Services or products by federal,
state or local authorities or foreign governments (except for taxes
based on our net income) if we pay these taxes directly. Otherwise,
Customer will be required to pay these taxes and other charges directly
to the taxing entity. If Customer claims any tax exemption, Customer
must provide a proper original of the appropriate document(s) establishing
Customer's tax exemption. Any tax exemption will apply only from
the date we receive such document(s) for available exemptions.
If one of Customer's Devices is lost
or stolen, Customer must immediately notify us toll free at 1-800-390-5034
(or other number provided by us from time to time). Customer is
responsible for all charges for Services provided to the Customer
account for such lost or stolen Device before the time Customer
notifies us of such loss or theft. We will deactivate Services to
that Customer account upon such notification. We may require that
Customer provide evidence of such loss or theft (e.g., a police
report or affidavit). If the Device is later found, we may require
that Customer exchange the Device for another Device prior to reactivating
Services, as well as require Customer to pay a reactivation fee.
POCKETMAIL INC. SHALL NOT BE LIABLE
FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,
RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE, SOFTWARE,
OR POCKETMAIL DEVICE, OR FOR COST OF PROCUREMENT OF SUBSTITUTE SERVICES
OR SOFTWARE, OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH
THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION
OF CUSTOMER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO,
DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN
IF POCKETMAIL INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY
FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS
MAY NOT APPLY TO YOU. Our sole liability, if any, for any loss or
damage arising out of mistakes, omissions, interruptions, delays,
errors, defects or other failures in Services or Software provided
to Customer during any period will not exceed our prorated recurring
monthly charges to Customer for Services during the period affected.
We are not liable for any act or omission of any provider of service
other than us, for loss or damage arising out of, or in connection
with, in whole or in part, negligence or misconduct of anyone other
than us, for damages arising out of, or in connection with, any
directory listing, or for errors, defects or failures arising out
of, or in connection with, an act of God (including, but not limited
to, weather-related phenomenon, fire or earthquake, war, riot, strikes,
order of governmental authority or other event beyond our control).
We are not liable for any damages arising out of, or in connection
with, an interruption or failure of 911 or E911 emergency services,
or identification of the Customer account address or name associated
with any person accessing or attempting to access such emergency
services from Customer's Device. We are not liable for injuries
to persons and/or property arising out of, or in connection with,
the use of any Device or any other equipment provided or Services
or Software furnished by us (including, but not limited to, injuries
resulting from traffic or other accidents) or from the installation
or repair of any Device or any other equipment by parties who are
not our employees or agents. Customer agrees to indemnify and hold
PocketMail Inc., its parents, subsidiaries, affiliates, officers
and employees, harmless from any claim or demand, including reasonable
attorneys' fees, made by any third party due to or arising out of
Customer's use of the Service or Software, the violation of this
Agreement by Customer, the Customer's use of the Device, or the
infringement by Customer, or other users of the Service using Customer's
PocketMail Service, of any intellectual property or other right
of any person or entity. This indemnification and hold harmless
agreement will extend to any reasonable attorneys' fees and costs
incurred by us arising out of, or in connection with, any actions
or claims for which this indemnification and hold harmless provision
applies, or from contesting the applicability of this provision.
The provisions of this paragraph will survive the expiration or
termination of this Agreement. (a) POCKETMAIL INC. PROVIDES THE SERVICES
AND SOFTWARE HEREUNDER "AS IS" AND WITHOUT ANY WARRANTIES OF ANY
KIND. YOU EXPRESSLY AGREE THAT USE OF THE SERVICES AND SOFTWARE
IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED HEREUNDER
ON AN "AS AVAILABLE" BASIS.
(b) POCKETMAIL INC. EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND,
WHETHER EXPRESS OR IMPLIED IN FACT OR BY OPERATION OF LAW, STATUTORY
OR OTHERWISE, AS TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION,
ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND NONINFRINGEMENT OF THIRD PARTIES' RIGHTS. IN NO EVENT
WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED
TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT.
(c) POCKETMAIL INC. MAKES NO WARRANTY THAT THE SERVICES WILL MEET
YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY,
SECURE, OR ERROR FREE; NOR DOES POCKETMAIL INC. MAKE ANY WARRANTY
AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES
OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED
THROUGH THE SERVICES OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.
(d) YOU UNDERSTAND AND AGREE THAT THERE ARE INHERENT LIMITATIONS
WITH SECURE TRANSACTION PROCESSING OVER THE INTERNET, AND YOU AGREE
TO DETERMINE WHETHER THE SERVICES MEET YOUR REQUIRED LEVEL OF SECURITY.
ANY BREACHES OF SECURITY OR DELAYS IN DATA TRANSMISSIONS RESULTING
FROM OR RELATED TO THE SERVICES IS AT YOUR SOLE RISK AND POCKETMAIL
INC. EXPRESSLY DISCLAIMS ANY LIABILITY AS TO SUCH A DELAY OR SECURITY
BREACH.
(e) YOU UNDERSTAND AND AGREE THAT YOU RECEIVE COMMUNICATIONS AT
YOUR OWN RISK AND THAT POCKETMAIL INC. MAKES NO WARRANTY THAT COMMUNICATIONS
RECEIVED BY YOU WILL BE FREE OF INAPPROPRIATE CONTENT, INCLUDING
CONTENT THAT IS THREATENING, LIBELOUS, OBSCENE, HARASSING OR OFFENSIVE.
(f) YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED
(INCLUDING INFORMATION POLLED FROM OTHER E-MAIL ACCOUNTS AND/OR
FROM INFORMATION CONTENT PROVIDER SERVICES) OR OTHERWISE OBTAINED
THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND
RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR
POCKETMAIL DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD
OF SUCH MATERIAL AND/OR DATA. POCKETMAIL INC. MAKES NO WARRANTY
REGARDING THE DATA POLLED OR TRANSFERRED FROM YOUR EXISTING E-MAIL
ACCOUNT(S) AND/OR FROM INFORMATION CONTENT PROVIDER SERVICES TO
YOUR POCKETMAIL ACCOUNT, AND SHALL IN NO WAY BE LIABLE FOR ANY DELETION
OR OTHER ALTERATIONS TO MESSAGES OR CONFIGURATIONS ON YOUR OTHER
E-MAIL ACCOUNTS. POCKETMAIL INC. MAKES NO WARRANTY REGARDING ANY
INFORMATION, GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE
SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU
FROM POCKETMAIL INC. OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY
NOT EXPRESSLY MADE HEREIN. NO DEALER, AGENT, OR EMPLOYEE OF POCKETMAIL
INC. IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS
TO THIS LIMITED WARRANTY.
(g) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES,
SO SOME OF THE EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU.
The provisions of this Section 10 will survive any termination or
expiration of this Agreement or the Services. (a) The initial term of this Agreement
will be a period of either 1 quarter or 1 year, as specified in
your Service Order. If your Service Order specified a quarterly
Service plan, at the end of the first quarter of this Agreement
(and of each renewal period during the term of this Agreement) this
Agreement will automatically renew for an additional quarter, unless
either party gives the other party written notice at least 15 days
in advance of its intention to not renew this Agreement. If your
Service Order specified an annual Service plan, at the end of the
first year of this Agreement (and of each renewal period during
the term of this Agreement) this Agreement will automatically renew
for an additional year if your Customer account had any activity
during the prior 3 months, unless either party gives the other party
written notice at least 30 days in advance of its intention to not
renew this Agreement.
(b) Either you or PocketMail Inc.may terminate your use of the Service
and this Agreement with or without cause at any time and effective
immediately. PocketMail Inc. shall not be liable to you or any third
party for termination of use of the Service or this Agreement. PocketMail
Inc. will not be required to refund to you any payments that you
made under this Agreement, even if such payments covered periods
of time following the termination of this Agreement.
(c) Should you object to any of the terms of the Agreement or any
subsequent modifications thereto or become dissatisfied with the
Service in any way, your only recourse is to immediately: (1) discontinue
the use of the Service; (2) terminate Service membership; and (3)
notify PocketMail Inc. of such termination. Upon expiration or termination
of this Agreement: (i) Customer will pay all moneys owed to us and
will reimburse us immediately for all costs, expenses and fees we
incur (including reasonable attorneys' fees and costs) in enforcing
this Agreement and collecting all moneys owed us by Customer; (ii)
recurring charges covering the current invoicing cycle will not
be prorated; (iii) Customer's right to use the Service immediately
ceases; (iv) Customer shall have no right and PocketMail Inc. will
have no obligation to forward any unread or unsent messages to Customer
or any third party; and (v) if Customer's account includes space
on PocketMail Inc.'s servers, anything stored in such space will
be deleted upon inactivation. In the normal course of providing
Services to Customer, we develop information that relates to the
quantity, technical configuration, type, destination and amount
of Customer's use of Services, together with the development of
registration and billing information ("Customer Information"). We
currently use Customer Information to market our Services to Customer,
but may market other telecommunications services and/or products
(such as third party long distance related services, Internet services,
local land line services or related services, Software, or Devices)
to Customer only with Customer's approval. By Customer's acceptance
of Services under this Agreement, and Customer's continued use of
our Services, Customer agrees that we (and our affiliates) may use
Customer Information for purposes of marketing and selling to Customer
other telecommunications services, including, but not limited to,
third party long distance related services, Internet services, local
land line services and related services. We will not use Customer
Information if Customer provides us with written notice of Customer's
desire that we not use Customer Information in this manner.
We reserve the right to change Customer's
rate plan and/or other charges from time to time by giving Customer
30 days prior written notice. In the event of an increase in rates
under Customer's rate plan, Customer may, within 30 days from receipt
of notice of such increase, switch to another rate plan for which
it qualifies or terminate this Agreement without incurring any termination
fees. If Customer uses Services (including retaining the right to
access our PocketMail Network) on or after the effective date of
any changes, or makes any payment to us on or after the effective
date of any changes (except any final payment Customer makes as
a result of its termination of this Agreement as permitted in this
paragraph), Customer will be deemed to have accepted the changes.
This Agreement and the Service Order may be amended by changes to
any applicable federal and state law, or by changes to any applicable
tariff on file, or by any combination of the foregoing. Changes
to applicable laws will be effective as provided in such applicable
laws. Changes to applicable tariffs will be effective as provided
in such applicable tariffs. Notice under this Agreement must be
in writing and may be given either (1) by overnight courier or in
person, (2) addressed and deposited in the U.S. Mail, return receipt
requested, postage prepaid, or (3) by e-mail. Customer's notice
address is set out in the Customer Information. A current notice
address for us can be obtained by calling PocketMail Inc. Customer
Service at the telephone number included in Customer's most recent
invoice. Notice address may be changed by giving notice in accordance
with this paragraph. If mailed according to this paragraph, notice
will be presumed given three days after deposit in the U.S. Mail.
If sent by overnight courier, notice will be presumed given one
day after deposit with such courier. If given in person, notice
will be presumed given when personally delivered to (or refused
by) such person. If given by e-mail, notice will be presumed given
upon dispatch of the e-mail by sender. Customer cannot assign this
Agreement without our prior written consent. You agree that you
will not knowingly, without prior authorization if required, export
or re-export the Software in any medium without the appropriate
United States and foreign government licenses. This Agreement will
be binding upon the successors and assigns of the parties, and will
be interpreted in accordance with the laws of the State of California,
without regards to its conflicts of laws principles. Customer and
PocketMail Inc. agree to submit to the exclusive personal jurisdiction
and venue of the Superior Court of Santa Clara County, California,
and the United States District Court for the Northern District of
California. This Agreement (including any referenced documents and
attachments) makes up the entire agreement between Customer and
PocketMail Inc. and supersedes all prior written and verbal agreements,
representations, promises or understandings between the parties.
If any part of this Agreement is held to be invalid or unenforceable
then the remainder of the Agreement will remain in full force and
effect. If either party fails to enforce any right or remedy available
to it under this Agreement, that failure will not be construed as
a waiver of the right or remedy with respect to any other breach
or failure by the other party. The provisions of this Agreement
which are contemplated to be enforceable after termination, including,
without limitation, indemnifications warranty disclaimers, and limitations
on liability, will survive expiration and termination of this Agreement.
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