TERMS OF USE and NOTICES
AGREEMENT BETWEEN USER AND THE MESSAGE CENTER CORP.
(“TMC”)
Use of TMC products and services (“TMC Service”)
is offered to you conditioned on your acceptance without modification
of the terms, conditions, and notices contained herein. Your
use of TMC constitutes your agreement to all such terms, conditions,
and notices. Your use of a particular TMC Service included
within the TMC Network may also be subject to additional terms
outlined elsewhere in this agreement (the "Additional
Terms"). Additionally, TMC may contain additional terms,
codes of conduct or guidelines that govern use of services,
including without limitation, particular features or offers.
MEMBER ACCOUNT, PASSWORD, AND SECURITY
If a particular TMC Service requires you to open an account,
you must complete the registration process by providing us
with current, complete and accurate information as prompted
by the applicable registration form. You then will choose
a password and a user name. You are entirely responsible for
maintaining the confidentiality of your password and account.
Furthermore, you are entirely responsible for any and all
activities that occur under your account. You agree to notify
TMC immediately of any unauthorized use of your account or
any other breach of security. TMC will not be liable for any
loss that you may incur as a result of someone else using
your password or account, either with or without your knowledge.
However, you could be held liable for losses incurred by TMC
or another party due to someone else using your account or
password. You may not use anyone else's account at any time,
without the permission of the account holder. By using the
TMC Service, you are representing and warranting that you
are of legal age to form a binding contract and are not a
person barred from receiving services under the laws of the
United States or other applicable jurisdiction. You agree
that it is your responsibility to obtain access to the TMC
Service and that no equipment (e.g., computer hardware) or
internet access will be provided to you by TMC.
BILLING
For Monthly billing, you will be billed on the 1st of each
month. Yearly contracts are a non-refundable contract that
you enter into with TMC. There are no refunds for a yearly
contract, unless you wish to cancel within the first 30 days.
If you make any changes to your account, it will be billed
on a prorated basis. Cancellation of accounts require a 30 day written notice in advance.
MODIFICATION OF THESE TERMS OF USE
TMC reserves the right to change the terms, conditions, and
notices under which the TMC Sites/Services are offered, including
but not limited to the charges associated with the use of
the TMC Sites/Services. You are responsible for regularly
reviewing these terms and conditions and additional terms
posted on particular websites. Your continued use of the TMC
Sites/Services constitutes your agreement to all such terms,
conditions, and notices.
PRIVACY AND PROTECTION OF PERSONAL INFORMATION
TMC will not, under any circumstances share any public or
private information about its customers with any party outside
of TMC, nor will it share any of the customer’s private
data. If it were to become necessary to do so, the customer
in question would be notified and asked for approval. Provided
however, that you acknowledge, in addition to any additional
rights set forth below in these terms and conditions, consent
and agree that TMC may access, preserve, and disclose your
account information and the contents of your account (including,
without limitation, e-mails) if TMC is required to do so by
law or if TMC, in its discretion, believes that disclosure
is reasonably necessary to (a) comply with the legal process,
(b) enforce these terms and provisions, (c) respond to your
requests for customer service or (d) protect the rights, property,
or personal safety of TMC, its employees and users, and the
public.
PAYMENT TERMS
You will be charged for services in accordance with TMC’s
Fee Schedule as set forth above in the Billing section. You
will receive sixty (60) days prior notice of any increase
or decrease in such fees. In the case of credit card payments,
all charges that you incur for the use of our services will
be charged to the credit card number you provide. If this
credit card number expires or if TMC is otherwise unable to
debit valid charges to this credit card, TMC will notify you
of this problem and reserves the right to terminate your access
to the Services within thirty (30) days of such notice, unless
you provide TMC with an alternative method of payment acceptable
to TMC, in its sole discretion, within such thirty (30) day
period. Payment for setting up your account will be due at
time of registration. Payments for on-going services will
be based on the services selected and billing dates for your
account. For Invoice method, payment shall be due ten (10)
days after the end of the calendar month in which the Services
are provided. The charge for services provided for part of
the month will be charged on a pro-rated basis. Upon termination
of service, all outstanding charges shall be due immediately.
PERSONAL AND COMMERCIAL USE LIMITATION
Unless otherwise specified, TMC is for your personal and commercial
use. You may not modify, copy, distribute, transmit, display,
perform, reproduce, publish, license, create derivative works
from, transfer, or sell any information, software, products
or services obtained from the TMC.
NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the TMC, you will not use the
TMC Service for any purpose that is unlawful or prohibited
by these terms, conditions, and notices. You may not use TMC
in any manner which could damage, disable, overburden, or
impair TMC (or the network(s) connected to TMC) or interfere
with any other party's use and enjoyment of TMC. You may not
attempt to gain unauthorized access to TMC, other accounts,
computer systems or networks connected to TMC, through hacking,
password mining or any other means. You may not obtain or
attempt to obtain any materials or information through any
means not intentionally made available through TMC.
LIABILITY DISCLAIMER
THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED
IN OR AVAILABLE THROUGH TMC MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL
ERRORS. CHANGES ARE PERIODICALLY MADE TO TMC AND TO THE INFORMATION
THEREIN. TMC AND/OR ITS RESPECTIVE SUPPLIERS MAY MAKE IMPROVEMENTS
AND/OR CHANGES IN TMC AT ANY TIME. ADVICE RECEIVED VIA TMC
SHOULD NOT BE RELIED UPON FOR PERSONAL, MEDICAL, LEGAL OR
FINANCIAL DECISIONS AND YOU SHOULD CONSULT AN APPROPRIATE
PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO YOUR SITUATION.
TMC AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS
ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS,
LACK OF VIRUSES OR OTHER HARMFUL COMPONENTS AND ACCURACY OF
THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED
GRAPHICS CONTAINED WITHIN TMC FOR ANY PURPOSE. ALL SUCH INFORMATION,
SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED
"AS IS" WITHOUT WARRANTY OF ANY KIND. TMC AND/OR
ITS RESPECTIVE SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND
CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS,
SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES
AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, WORKMANLIKE EFFORT, TITLE AND NON-INFRINGEMENT.
YOU SPECIFICALLY AGREE THAT TMC SHALL NOT BE RESPONSIBLE FOR
UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS
OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT
OR RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH TMC.
YOU SPECIFICALLY AGREE THAT TMC IS NOT RESPONSIBLE OR LIABLE
FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL
CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT
OF ANOTHER'S RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS.
YOU SPECIFICALLY AGREE THAT TMC IS NOT RESPONSIBLE FOR ANY
CONTENT SENT USING AND/OR INCLUDED IN TMC BY ANY THIRD PARTY.
IN NO EVENT SHALL TMC AND/OR ITS SUPPLIERS BE LIABLE FOR ANY
DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL
DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF TMC, WITH
THE DELAY OR INABILITY TO USE TMC OR RELATED SERVICES, THE
PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION,
SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED
THROUGH TMC, OR OTHERWISE ARISING OUT OF THE USE OF TMC, WHETHER
BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE,
EVEN IF TMC OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE
POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION
MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION
OF TMC, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE
REMEDY IS TO DISCONTINUE USING TMC.
GENERAL TERMS REGARDING USE AND STORAGE
You agree that TMC may establish limits concerning use of
any service offered on a TMC Web Mail Site, including without
limitation, the maximum number of days that e-mail messages
will be retained by the service, the maximum number of e-mail
messages that may be sent from or received by an account on
the service, the maximum size of an e-mail message that may
be sent from or received by an account on the service, the
maximum disk space that will be allotted on TMC's servers
on your behalf, and the maximum number of times and duration
you may access the service in a given period of time. You
agree that TMC has no responsibility or liability for the
deletion, corruption or failure to store any messages or other
content maintained or transmitted by the service. You acknowledge
that TMC reserves the right to delete accounts that are inactive
for an extended period of time.
TMC MAKES NO WARRANTY THAT ANY SERVICE WILL BE UNINTERRUPTED,
TIMELY, SECURE OR ERROR-FREE.
TMC service is provided “as is”. TMC will endeavor
to operate its services uninterrupted, secure, and error-free.
However, there may be times when service will be down or disrupted.
TMC does not assume any liability for said interruptions,
and will not be held responsible. Interruptions can occur
due to many circumstances, such as a hacker attacking the
site, power failure, a failure of software or hardware. TMC
will act in a timely and appropriate manner to remedy any
issues that arise.
SERVICE CONTACT: support@themessagecenter.com
TERMINATION/ACCESS RESTRICTION
TMC reserves the right, in its sole discretion, to terminate
your access to any or all TMC Service and the related services
or any portion thereof at any time, without notice. TMC shall
have no obligation to maintain any content or to forward any
unread or unsent messages to you or any third party.
SPAM; DAMAGES
TMC will immediately terminate any account which it believes,
in its sole discretion, is transmitting or is otherwise connected
with any spam or other unsolicited bulk e-mail. In addition,
because damages are often difficult to quantify, if actual
damages cannot be reasonably calculated then you agree to
pay TMC liquidated damages of $3 (US Currency) for each piece
of spam or unsolicited bulk e-mail transmitted from or otherwise
connected with your account, otherwise you agree to pay TMC's
actual damages, to the extent such actual damages can be reasonably
calculated.
GENERAL
This agreement is governed by the laws of the State of California,
U.S.A. You hereby irrevocably consent to the exclusive jurisdiction
and venue of courts in Santa Clara County, California, U.S.A.
in all disputes arising out of or relating to the use of the
TMC Service. Use of TMC is unauthorized in any jurisdiction
that does not give effect to all provisions of these terms
and conditions, including without limitation this paragraph.
You agree that no joint venture, partnership, employment,
or agency relationship exists between you and TMC as a result
of this agreement or your use of TMC Service. You agree to
indemnify and hold TMC, its parents, subsidiaries, affiliates,
officers and employees, harmless from any claim, demand, or
damage, including reasonable attorneys' fees, asserted by
any third party due to or arising out of your use of or conduct
while using TMC Service. TMC reserves the right to disclose
any personal information about you or your use of TMC, including
its contents, without your prior permission if TMC has a good
faith belief that such action is necessary to: (1) conform
to legal requirements or comply with legal process; (2) protect
and defend the rights or property of TMC or its affiliated
companies; (3) enforce the terms or use; or (4) act to protect
the interests of its members or others. TMC's performance
of this agreement is subject to existing laws and legal process,
and nothing contained in this agreement is in derogation of
TMC's right to comply with governmental, court and law enforcement
requests or requirements relating to your use of TMC or information
provided to or gathered by TMC with respect to such use. If
any part of this agreement is determined to be invalid or
unenforceable pursuant to applicable law including, but not
limited to, the warranty disclaimers and liability limitations
set forth above, then the invalid or unenforceable provision
will be deemed superseded by a valid, enforceable provision
that most closely matches the intent of the original provision
and the remainder of the agreement shall continue in effect.
Unless otherwise specified herein, this agreement constitutes
the entire agreement between the user and TMC with respect
to TMC and it supersedes all prior or contemporaneous communications
and proposals, whether electronic, oral or written, between
the user and TMC with respect to TMC. A printed version of
this agreement and of any notice given in electronic form
shall be admissible in judicial or administrative proceedings
based upon or relating to this agreement to the same extent
and subject to the same conditions as other business documents
and records originally generated and maintained in printed
form.
Any rights not expressly granted herein are reserved.
Rev. May 2005 |
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