GoldMail® Offerings Terms of Use
These Terms of Use (this "Agreement"),
govern the terms and conditions of your access and use of GoldMail® Offerings
(as defined below), and are made between you ("you" or "Customer"),
and GoldMail, Inc. However, if you have registered as or on
behalf of an entity, such as a corporation, partnership, limited
liability company or other entity "you" or "Customer" refer
to the entity, and you represent and warrant that you have
power and authority to enter into this Agreement on behalf
of the entity. This Agreement also includes and incorporates
by reference any operating rules, policies, price schedules,
or other supplemental documents which may be published generally
from time to time by GoldMail, Inc., both prior and subsequent
to the effective date of this Agreement.
By clicking the "Accept" button for this Agreement,
signing a GoldMail, Inc. sales order form and/or using any
GoldMail Offerings, you confirm your acceptance of, and agree
to be bound by, this Agreement.
1. GoldMail Offerings. The "GoldMail Offerings" are as follows:
A: Services including but not limited to GoldMail services (the "Services") from one or more of the GoldMail Web Sites (as defined below).
B: GoldMail™ software (aka "GoldMail"), and any other software we offer (the "Software"): GoldMail includes, but is not limited to, (i) downloadable and/or Web-based software that provides a composition screen that enables a Customer to place electronic content which Customer can annotate with his/her voice (using a computer microphone, separately purchased headset or prerecorded audio file) and create a unique URL on GoldMail, Inc.'s servers where such content, with the synchronized annotation, can be accessed. Such URLs can be pasted automatically into a Customer's compatible outgoing email or posted elsewhere on the internet (at blogs, Web sites, etc.); and (ii) a site where Customers can store GoldMail messages and can view data such as whether a GoldMail message was viewed by an email recipient, the number of times a GoldMail message was viewed, and the duration of each such viewing;
C: Web sites owned or operated by GoldMail, Inc., including but not limited to www.GoldMail.com (the "Web Sites"); and
D:Such other products and services
as GoldMail, Inc. may offer under this Agreement from time
to time.
2. Privacy, Anti-Spam and Other Policies
Your use of any GoldMail Offering is subject to GoldMail, Inc.'s
Privacy Policy and Anti-Spam
Policy, and GoldMail, Inc.'s other applicable policies,
each as in effect from time to time, available at www.goldmail.com,
which are incorporated herein by reference.
3. Customer Responsibilities
A. Registration and Equipment Obligations
In consideration of your use of any GoldMail Offering, you
represent that you are of legal age to form a binding contract
and are not a person barred from receiving products or services
under the laws of the United States or other applicable jurisdiction.
You also agree to: (a) provide true, accurate, current and
complete information about yourself on our online or offline
registration forms, such as your name, contact information
and payment information (including the expiration date of
any credit card) (the "Registration Data") and
(b) maintain and promptly update the Registration Data to
keep it true, accurate, current and complete. If you fail
to do so, or GoldMail, Inc. has reasonable grounds to suspect
any such issues with such information, GoldMail, Inc. has
the right to suspend or terminate your account and refuse
any and all current or future use of all or any portion of
any GoldMail Offering.
It is your responsibility to (a) obtain and pay for all equipment
and third-party services (e.g., Internet access and email service)
required for you to access and use the applicable GoldMail
Offering; (b) maintain the security of your PIN number and
other confidential information relating to your GoldMail account
and; (c) be responsible for all charges resulting from use
of your GoldMail account, including unauthorized use prior
to your notifying GoldMail, Inc. of such use and taking steps
to prevent its further occurrence. You agree to immediately
notify GoldMail, Inc. of any unauthorized use of your account
or any other breach of security known to you.
B. Responsibility for Content
You understand that all information, data, text, software,
music, audio, photographs, graphics, video, messages, tags,
or any other materials ("Content") that you store
or transmit in connection with using any GoldMail Offering
is the sole responsibility of the person from whom such Content
originated. This means that you, and not GoldMail, Inc. are
entirely responsible for all activities that occur under your
account, including Content that you upload, post, email, transmit
or otherwise make available via any GoldMail Offering. GoldMail,
Inc. does not control or pre-screen the Content posted via
the GoldMail Offerings and, as such, does not guarantee the
accuracy, integrity or quality of such Content. You understand
that GoldMail, Inc. simply acts as a passive conduit and neutral
storage site for you to create, store and send Content of your
own choosing and/or to receive and view Content from others
using GoldMail Offerings. However, GoldMail, Inc. reserves
the right (but not the obligation) to take any action (such
as pre-screening, deleting, reformatting or watermarking Content
or terminating or suspending access to any GoldMail Offering)
with respect to the GoldMail Offerings that GoldMail, Inc.
deems necessary or appropriate in its sole discretion without
notice if GoldMail, Inc. believes your activities or Content
may create liability for GoldMail, Inc., compromise or disrupt
any GoldMail Offering for you, other customers or GoldMail,
Inc., or cause GoldMail, Inc. to lose (in whole or in part)
the services of GoldMail, Inc. suppliers, or breach this Agreement
or any GoldMail, Inc. policies.
GoldMail, Inc. may establish or revise from time to time at
its discretion general practices and limits concerning your
use of the GoldMail Offerings, such as the maximum amount of
storage space or bandwidth you may use, number of messages
you may send at any time and/or monthly views of GoldMail messages.
These limits may vary depending on the plan you purchase. Should
your account not comply with such practices and limits or should
it otherwise result in an unreasonable or disproportionate
burden on our systems, we reserve the right at our sole discretion
to suspend your account and/or messages until the start of
the next billing period, until you purchase more views or other
resources at an additional fee, or until you upgrade to a higher
level plan; to terminate your account; and/or to charge you
an additional fee for the excess. If your campaign may involve
any high-volume mailing, highly viral promotion and/or high
message opening or re-play rates, you agree to notify us in
advance and reasonably coordinate with us.
In addition, you agree that GoldMail, Inc. has no responsibility
or liability for the deletion, corruption, or alteration of,
or failure to store any Content.
You understand that by using the GoldMail Offerings, you may
be exposed to Content that is inaccurate, offensive, indecent
or objectionable. The GoldMail Offerings, Content, or third
parties may provide links to other internet sites or resources.
Because GoldMail, Inc. has no control over such Content, sites
and resources, you acknowledge and agree that GoldMail, Inc.
is not responsible for the availability of such Content or
external sites or resources, does not endorse and is not responsible
or liable for any Content, advertising, products, or other
materials on or available from such Content, sites or resources.
You understand that certain GoldMail Offerings may show advertising,
branding or sponsorships. You may enter into correspondence
with or participate in promotions of any entities which advertise
or market through a GoldMail Offering. You agree that GoldMail,
Inc. has no liability, obligation or responsibility for any
part of any such advertising, branding, sponsorships, correspondence
or promotions, including the delivery of and the payment for
goods and services, and any other terms, conditions, warranties
or representations associated with such correspondence or promotions.
You agree that you must evaluate, and bear all risks associated
with, the use of any Content, including any reliance on the
accuracy, safety, completeness, or usefulness of such Content.
Accordingly, you hereby waive any and all rights or remedies
you may have against GoldMail, Inc. with respect thereto, and
shall indemnify and hold harmless GoldMail, Inc. and its licensors,
regarding all matters related to your use of the GoldMail Offerings.
C. Acceptable Use Policy
In connection with your use of any GoldMail Offering, you agree
not to, directly or indirectly: (i) use any GoldMail Offering
in any way that is unlawful, threatening, abusive, harassing,
tortious, defamatory, vulgar, obscene, libelous, invasive of
another's privacy, hateful, or racially, ethnically or otherwise
objectionable, or otherwise could result in civil or criminal
liability; (ii) transmit any Content prohibited by intellectual
property (e.g., patent, copyright, trademark, trade secret,
or privacy and publicity) or other laws (including account
collection, export control, consumer protection, unfair competition,
anti-discrimination or false advertising), unless you are the
owner or have permission to use such rights; (iii) use any
GoldMail Offering in connection with unsolicited or unauthorized
email or other unethical, illegal or inappropriate methods,
as set forth in GoldMail, Inc.’s Anti-Spam Policy, as
in effect from time to time, available at www.goldmail.com;
(iv) use any GoldMail Offering as an illegal multi-level marketing
(MLM), pyramid, chain letter or similar arrangement; (v) misrepresent
any product or business; (vi) impersonate any person or entity,
including, but not limited to, any GoldMail, Inc. representative,
or misrepresent your affiliation with any person or entity;
(vii) forge headers or otherwise manipulate identifiers in
order to disguise the origin of any Content created or transmitted
in connection with any GoldMail Offering; (viii) transmit any
material that contains software viruses or any other functional
Content designed to interrupt, destroy or limit the functionality
of GoldMail, Inc. products or services or other computer software,
hardware or telecommunications equipment; (ix) interfere with
or disrupt GoldMail, Inc. products and services or servers
or networks connected to them or interfere with any security
or rights protection functionality of GoldMail, Inc. or any
third party; (x) violate any applicable law or regulation,
or incite or provide instructional information about illegal
activities; or (xi) conduct raffles, contests, lotteries or
sweepstakes, except in compliance with all federal and state
legal requirements. GoldMail, Inc. shall be the sole arbiter
as to what activities violate this policy.
4. Termination
Either you or GoldMail, Inc. may
terminate your GoldMail account and your use of any or all
GoldMail Offerings at any time, with or without cause, upon
notice. Any such notice by you to GoldMail, Inc. must be in
accordance with GoldMail, Inc.'s verification procedures, as
such procedures may be established and changed by GoldMail,
Inc. from time to time in its sole discretion, and which may
include the requirement that you contact GoldMail, Inc. by
telephone to confirm that any such notice was in fact sent
by you. GoldMail, Inc. also reserves the right to terminate
or suspend your GoldMail account, your use of any or all GoldMail
Offerings, and general access to any Content without prior
notice, and for any reason, including if you engage in any
conduct that GoldMail, Inc. believes: (a) violates the letter
or spirit of any term or provision of this Agreement, (b) violates
the rights of GoldMail, Inc. or third parties, or (c) is otherwise
inappropriate for continued access and use of the GoldMail
Offerings. In addition, GoldMail, Inc. may terminate any account
if that account has been inactive for more than six (6) months.
For thirty (30) days following the termination date or until
such earlier time as you may request via the Services, GoldMail,
Inc. shall continue to store your Content on our servers. After
such period, GoldMail, Inc. shall have the right, but not the
obligation, to destroy permanently such Content. No obligation
exists to make Content available to former customers after
termination of their agreement with GoldMail, Inc.
5. Modifications to this Agreement
GoldMail, Inc. may amend this Agreement
at any time by (a) posting revised GoldMail Terms of Use on
the appropriate Web Sites, and/or (b) sending information regarding
the amendment to your email address of record with GoldMail,
Inc. You are responsible for regularly reviewing the Web Sites
to obtain timely notice of such amendments. You shall be deemed
to have accepted such amendments by continuing to use any GoldMail
Offerings after such amendments have been posted or information
regarding such amendments has been sent to you. If you do not
agree to any of such changes, you may terminate this Agreement
and immediately cease all access and use of the GoldMail Offerings.
You agree that such termination will be your exclusive remedy
in such event.
6. Modifications to Offerings
GoldMail, Inc. reserves the right
at any time and from time to time to modify or discontinue
all or any portion of any GoldMail Offering without notice
to you. GoldMail, Inc. shall not be liable to you or any third
party should GoldMail, Inc. exercise such rights, or for any
resulting loss or destruction of any Content that you place
or store on any GoldMail Offering. GoldMail, Inc. may specify
from time to time the version(s) of related products required
in order to use GoldMail Offerings (e.g. browsers and hardware).
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
A. GOLDMAIL OFFERINGS AND ALL OTHER
GOLDMAIL, INC. SOFTWARE, PRODUCTS AND/OR SERVICES ("GOLDMAIL
ITEMS") ARE PROVIDED ON AN "AS IS" AND "AS
AVAILABLE" BASIS, AND NEITHER GOLDMAIL, INC. NOR ANY
OF ITS SUPPLIERS MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS
OR WARRANTIES TO YOU REGARDING THE SAME, NOR DO THEY ASSUME
RESPONSIBILITY FOR TIMELINESS, MISDELIVERY, DELETION, OR FAILURE
TO STORE ANY CONTENT. GOLDMAIL, INC. DOES NOT WARRANT THAT
ACCESS TO OR USE OF ANY GOLDMAIL ITEM WILL BE UNINTERRUPTED,
SECURE OR ERROR-FREE, OR THAT GOLDMAIL ITEMS WILL MEET ANY
PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY OR WILL RESULT
IN REVENUES, PROFITS OR SAVINGS. GOLDMAIL, INC. AND ITS SUPPLIERS
DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR
PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, OR SECURITY.
B. YOUR USE OF GOLDMAIL ITEMS IS AT YOUR OWN RISK. YOU ASSUME
FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING
AND/OR USE OF CONTENT OR OTHER MATERIAL (INCLUDING GOLDMAIL
ITEMS) OBTAINED EITHER DIRECTLY OR INDIRECTLY FROM GOLDMAIL,
INC. YOU AGREE THAT NEITHER GOLDMAIL, INC. NOR ANY OF ITS SUPPLIERS
WILL BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL, INCIDENTAL,
SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOST REVENUES,
PROFITS OR SAVINGS) ARISING OUT OF YOUR USE OF OR INABILITY
TO USE GOLDMAIL SERVICES OR ANY OTHER GOLDMAIL ITEMS, AND YOU
HEREBY RELEASE AND WAIVE ANY CLAIMS WITH RESPECT THERETO, WHETHER
BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF GOLDMAIL,
INC. OR ANY SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY
OF DAMAGES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR
RIGHTS UNDER CALIFORNIA CIVIL CODE § 1542, WHICH STATES, "A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY
AFFECTED HIS SETTLEMENT WITH THE DEBTOR." RESIDENTS OF
OTHER STATES AND NATIONS SIMILARLY WAIVE THEIR RIGHTS UNDER
COMPARABLE LOCAL LAW. THE ENTIRE LIABILITY OF GOLDMAIL, INC.
AND ITS SUPPLIERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO
THE USE OF GOLDMAIL ITEMS OR ANY BREACH OF THIS AGREEMENT ARE
LIMITED TO THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY YOU
FOR ACCESS TO AND USE OF THE GOLDMAIL ITEMS IN THE THREE (3)
MONTHS PRECEDING THE DATE OF YOUR CLAIM OR (II) U.S.$30.00.
YOU HEREBY RELEASE GOLDMAIL, INC. AND EACH OF ITS SUPPLIERS
FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS
OF THIS LIMITATION. YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION
ARISING OUT OF OR RELATED TO USE OF GOLDMAIL ITEMS OR THIS
AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM
OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. SOME JURISDICTIONS
DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED
OR LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS
MAY APPLY TO YOU.
C. NEITHER GOLDMAIL, INC. NOR ANY OF ITS SUPPLIERS SHALL BE
HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY
OR INDIRECTLY, FOR ANY COMMUNICATIONS DIFFICULTIES OUTSIDE
OF GOLDMAIL, INC.'S OR ANY SUCH SUPPLIER'S CONTROL WHICH
COULD LEAD TO THE INTERRUPTION OF DATA DELIVERY SERVICE TO
THE CUSTOMER.
D. YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED
OR IMPLIED, MADE BY ANY PERSON OTHER THAN ONE MADE IN WRITING
BY AN AUTHORIZED OFFICER OF GOLDMAIL, INC, IN EVALUATING ANY
GOLDMAIL ITEMS.
8. Charges
A. Customers may from time to time
be given the option to use certain versions or editions of
GoldMail Offerings at no charge for a Free Trial period described
on the Web Site www.GoldMail.com (the "Free Trial Period").
GoldMail, Inc. provides the Free Trial Period as an accommodation
to you, and reserves the right to terminate your Free Trial
Period at any time, for any reason or no reason, without notice.
In addition, use of the public areas of the GoldMail Web Sites
(apart from GoldMail Services, GoldMail Software and other
fee-paid GoldMail Offerings) is currently at no charge.
B. You agree to pay all charges for your use of GoldMail Offerings
at the prices then in effect. All charges will be exclusive
of value added ("VAT"), sales or other taxes, except
as required by law. GoldMail, Inc. reserves the right to change
prices or promotions or institute new charges or promotions
for access to or use of all or any portion of GoldMail Offerings.
GoldMail, Inc. will post all changes at the GoldMail Web Site.
C. Payment of your GoldMail account balance is due monthly
or annually, as relevant, in advance.
D. If you make payment by credit or debit card, and payment
is not received by GoldMail, Inc. from the card issuer or its
agents, you agree to pay all amounts due upon demand by GoldMail,
Inc. Each time you use any GoldMail Offerings that are fee-based,
or allow or cause such GoldMail Offerings to be used, you agree
and reaffirm that GoldMail, Inc. is authorized to charge your
designated card. Your card issuer's agreement governs your
use of your designated card in connection with GoldMail Offerings,
and you must refer to such agreement (not this Agreement) with
respect to your rights and liabilities as a cardholder. You
agree that GoldMail, Inc. may (at its option) accumulate charges
incurred during your monthly billing cycle and submit them
as one or more aggregate charges during or at the end of each
cycle, and that GoldMail, Inc. may delay obtaining authorization
from your card issuer until submission of the accumulated charge(s).
This means that accumulated charges may appear on the statement
you receive from your card issuer.
E. FEES FOR GOLDMAIL OFFERINGS ARE NON-REFUNDABLE, AND ALL
SALES ARE FINAL. You agree that GoldMail, Inc. may, in the
event you use any GoldMail Offering beyond those initially
contracted for, submit additional charges at that time to your
card, without further authorization from you, until you provide
prior notice (in accordance with GoldMail, Inc.'s verification
procedures, as may be established by GoldMail, Inc. from time
to time in its sole discretion) that you have terminated this
authorization or wish to change your designated payment method
or card. Such notice will not affect charges submitted before
GoldMail, Inc. reasonably could act on your notice. If you
have any question regarding any charges that have been applied
to your account, you must contact GoldMail, Inc.'s Customer
Service Department within 30 days of the charge date.
F. If you make payment by credit or debit card, and if you
subscribed for a GoldMail Offering pursuant to a special offer
granting you a Free Trial period, any activation fee and initial
service fee (e.g., for first month of a monthly service) may
be PRE-AUTHORIZED AGAINST YOUR CREDIT CARD OR DEBIT CARD LIMIT
(meaning the amounts pre-authorized will not be considered
available credit or debit funds in such account) and will be
immediately charged to your credit or debit card, without further
authorization from you, immediately after the expiration of
such Free Trial period, unless you provide prior notice (in
accordance with GoldMail, Inc.'s verification procedures, as
may be established by GoldMail, Inc. from time to time in its
sole discretion) that you have terminated this authorization.
Such notice will not affect charges submitted before GoldMail,
Inc. reasonably could act on your notice.
G. If you subscribed for a GoldMail Offering pursuant to a
special offer granting a pre-paid discount for a fixed number
of months or other basis, your pre-paid fees are payable in
advance and are NON-REFUNDABLE. Such notice will not affect
charges submitted before GoldMail, Inc. reasonably could act
on your notice.
H. You must promptly notify GoldMail, Inc. of changes to: the
account number or expiration date of your designated card (if
applicable) and your billing address. You must also promptly
notify GoldMail, Inc. if your card is canceled (e.g., for loss
or theft).
I. GoldMail, Inc. reserves the right to suspend or terminate
your GoldMail account and/or your use of any GoldMail Offerings
without notice upon card expiration, insufficient funds, rejection
of any payment or card charges or if your financial institution
(or its agent or affiliate) seeks return of payments previously
made to GoldMail, Inc. when GoldMail, Inc. believes you are
liable for the charge. Such rights are in addition to and not
in lieu of any other legal rights or remedies available to
GoldMail, Inc.
9. Ownership
You agree that all programs, services,
processes, designs, software, technologies, trademarks, trade
names, inventions, patents, other intellectual property and
materials comprising the GoldMail Offerings are wholly owned
by GoldMail, Inc. and/or its suppliers except where expressly
stated otherwise.
10. Limited Right to Use
A. Subject to your payment of applicable
charges and compliance with the other terms and conditions
of this Agreement, GoldMail, Inc. grants you a limited, nonexclusive,
non-transferable, revocable right to use the GoldMail Offerings
solely for your personal or internal business purposes. You
agree not to use for any other purpose, copy, sell, resell,
rent or sublicense (including offering any GoldMail Offering
to third parties on an applications service provider or time-sharing
basis), lease, loan, republish, distribute (for example, in
other media), transmit, or create a derivative work of, or
otherwise exploit any portion of the GoldMail Offerings or
access to the GoldMail Offerings, without prior written permission
of GoldMail, Inc. No part of any GoldMail Offering may be reproduced
in any form or incorporated into any information retrieval
system, electronic or mechanical, for resale or distribution.
You shall maintain any notices contained in or displayed on
any GoldMail Offering. The limited right granted above shall
terminate automatically without notice if you breach any of
the foregoing terms and conditions. All rights not specifically
granted by GoldMail, Inc. are reserved by GoldMail, Inc.
B. Regarding the Content you submit to or via any GoldMail
Offering, you retain all ownership of your Content and you
grant GoldMail, Inc. the worldwide, non-exclusive, irrevocable,
transferable, sublicenseable, license without royalty or other
compensation to use, copy, distribute, create derivative works
of (e.g. reformatting for storage and transmission), transmit,
perform and display any or all of such Content, all in connection
with GoldMail, Inc.'s providing the GoldMail Offerings
to you and the recipients of your Goldmails. You also grant
such license to each recipient of your GoldMail messages for
that recipient's use for any purpose.
C. GoldMail, Inc. may provide forms or mechanisms for you to
provide Content for feedback, testimonials, suggestions and
ideas about GoldMail, Inc. products and services ("Responses"),
and accordingly, GoldMail, Inc. may use any Responses in any
way, including in future versions of its products or services,
and/or its advertising or promotions. You grant GoldMail, Inc.
a perpetual, worldwide, non-exclusive, irrevocable, transferable,
sublicenseable, license without royalty or other compensation
to use, copy, distribute, create derivative works of, transmit,
perform and display the Responses, in any manner and for any
purpose. Additionally, we may use your name and logo publicly
or privately in our online or offline customer lists, presentations,
advertising and promotional materials, and/or financial reports,
unless we otherwise agree in writing.
11. Indemnification
You agree to indemnify and hold
harmless GoldMail, Inc. and each of its officers, directors,
employees, agents, and suppliers from and against any and all
losses, liabilities, expenses (including attorneys' fees and
costs) and damages arising out of claims based upon use of
your GoldMail account, any GoldMail Offering or your Content,
including any violation of this Agreement by you or any other
person using your account, any claim of libel, defamation,
violation of rights of privacy or publicity, any loss of service
by other customers, any infringement of intellectual property
or other rights of any third parties, and any violation of
any laws or regulations, including but not limited to any violation
of any laws or regulations prohibiting transmission of unsolicited
email or marketing messages.
12. Notices; Consent
Notices given by GoldMail, Inc.
to you will be given by general posting on the GoldMail Web
Site, or by email, overnight courier, first class or express
mail to your address of record at GoldMail, Inc. Notices given
by you to GoldMail, Inc. must be given by first class or express
mail, certified or registered, postage prepaid and sent to
GoldMail, Inc. 2030 Harrison Street, 3rd Floor, San Francisco,
California 94110 U.S.A.
13. Notices of Infringement
Persons who believe that their
copyrights or other intellectual property rights have been
infringed via any GoldMail Offering may notify GoldMail, Inc.'s
Designated Agent. All notices must comply with the requirements
of U.S. Copyright Act Section 512(d) and regulations promulgated
thereunder, as amended. Such notices not complying with these
requirements will be returned unprocessed. Also, please indicate
the specific Content, and Web site URL or GoldMail Offering.
Designated Agent and Address of Agent:
Attn: Copyright Designated Agent
GoldMail, Inc.
2030 Harrison Street, 3rd Floor
San Francisco, CA 94110
14. General Terms
You affirm that you are over the
age of eighteen (18), possess consent of your parent or legal
guardian, and/or are otherwise fully able and competent to
enter into this Agreement, and to comply with all the terms
and conditions of this Agreement. If you have purchased a monthly
or annual subscription, then this Agreement shall automatically
renew on a monthly or annual basis, respectively. For all other
customers, this Agreement shall automatically renew on a monthly
basis. The laws of the State of California, U.S.A., excluding
its conflicts of law rules, govern this Agreement and your
use of all GoldMail Offerings. The UN Convention on Contracts
for the International Sale of Goods is disclaimed. You agree
that exclusive jurisdiction for any claim or dispute arising
from this Agreement shall be in the federal and state courts
located in San Francisco County, California, U.S.A. If any
provision of this Agreement is held to be invalid or unenforceable,
such provision shall be struck and the remaining provisions
shall be enforced. GoldMail, Inc.'s failure to act with respect
to a breach by you or others does not waive GoldMail, Inc.'s
right to act with respect to subsequent or similar breaches.
You may not assign or transfer this Agreement or any rights
hereunder, and any attempt to the contrary is void. Subject
to the preceding sentence, this Agreement benefits and binds
the respective successors and assigns of the parties. GoldMail,
Inc. shall not be liable for any delay or failure to perform
resulting directly or indirectly from any causes beyond GoldMail,
Inc.'s reasonable control. This Agreement supersedes all prior
or contemporaneous agreements, representations, warranties,
understandings or communications between the parties regarding
the subject matter herein. There are no third party beneficiaries
to this Agreement. Customer acknowledges that all or portions
of the GoldMail Offerings may be subject to the export control
laws of the United States and/or other jurisdictions of the
world. Customer agrees not to export, re-export or otherwise
transfer any portion of the GoldMail Offerings in violation
of any applicable export law or regulation. Any GoldMail, Inc.
software and the documentation which accompanies the same are "Commercial
Items," as that term is defined at 48 C.F.R. §2.101,
consisting of "Commercial Computer Software" and "Commercial
Computer Software Documentation," as such terms are used
in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable.
Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1
through 227.7202-4, as applicable, the Commercial Computer
Software and Commercial Computer Software Documentation are
being licensed to U.S. Government as end users (a) only as
Commercial Items and (b) with only those rights as are granted
to all other end users pursuant to the terms and conditions
herein. GoldMail, Inc., 2030 Harrison Street, 3rd Floor, San
Francisco, CA 94110. Sections 7, 8, 9, 10(B) and (C), 11, 12
and 14 of this Agreement shall survive the termination of your
account or access to the GoldMail Offerings. GoldMail® is
a registered service mark, and GoldMail™ and the GoldMail
logo are trademarks of GoldMail, Inc.