|
WEBMESSENGER CUSTOMER AGREEMENT
This Agreement, which governs the terms and
conditions of your use of WebMessenger® Mobile IM Services and
WebMessenger Mobile IM Software, is between you ("you" or "Customer"),
as an authorized user of such services, and WebMessenger, Inc., a
California corporation ("WebMessenger").
This Agreement, together with any operating rules,
policies, or other supplemental documents expressly incorporated herein
by reference and published from time to time by WebMessenger
(collectively, the "Agreement"), constitutes the entire agreement
between WebMessenger and you regarding WebMessenger Mobile IM Services,
and supersedes all prior agreements between the parties regarding the
subject matter of this Agreement. Notwithstanding the foregoing, your
use of any software, including but not limited to WebMessenger Mobile IM
Software, provided by WebMessenger related to the Services shall be
pursuant to a separate End User Licensing Agreement governing customers'
use of such software. For purposes of this Agreement, "WebMessenger
Mobile IM Services" or "Services" are defined as any and all services
provided by WebMessenger to you either now or in the future. By using
WebMessenger Mobile IM Services, you confirm your acceptance of, and
agree to be bound by, this Agreement.
If you begin the sign up process for WebMessenger
Mobile IM Services but fail to complete the process, WebMessenger may
contact you one (1) time via email in an effort to help successfully
guide you through this process. You hereby authorize WebMessenger to
make such contact, even if you ultimately determine not to sign up for
WebMessenger Mobile IM Services.
1. WebMessenger Mobile IM Services: WebMessenger
offers WebMessenger Mobile IM Services at its website
www.webmessenger.com (together with other websites owned and operated by
WebMessenger, the "WebMessenger Website"). WebMessenger Mobile IM
Services includes but is not limited to: (i) a WebMessenger Mobile IM
account that, when activated, provides you access to an interoperability
gateway for public IM networks AOL®, Yahoo!®, MSN®, Google, and ICQ®,
(ii) WebMessenger Mobile IM Software that provides access to your
personal accounts registered with any of the above supported public IM
networks, from mobile smartphones and PDAs supported by the WebMessenger
Mobile IM Software and WebMessenger Windows Desktop IM software, and
(iii) the ability to send and receive a limited number of instant
messages through your WebMessenger Mobile IM account. WebMessenger
provides the WebMessenger Mobile IM Services as a Free Service as an
accommodation to you, and reserves the right to terminate your Free
Service at anytime without notice.
YOU UNDERSTAND THAT THE FREE SERVICE IS SUBJECT TO
WEBMESSENGER’S "FAIR USE" POLICY FOR FREE ACCOUNTS. YOU WILL BE IN
VIOLATION OF THIS POLICY IF, WITHIN ANY TWENTY-FOUR HOUR PERIOD, YOU
SEND AND/OR RECEIVE MORE THAN 500 INSTANT MESSAGES, EXCLUDING ALL
ADVERTISING OR INFORMATIONAL MESSAGES SENT TO YOU DIRECTLY BY
WEBMESSENGER. IN THE EVENT YOU ARE DEEMED TO HAVE VIOLATED THIS POLICY,
WEBMESSENGER WILL ATTEMPT TO NOTIFY YOU OF THE VIOLATION VIA EMAIL AND
OFFER TO UPGRADE YOU TO A PAID WEBMESSENGER ENTERPRISE PRODUCT THAT IS
OFFERED TO HIGH USAGE CUSTOMERS. IF YOU ELECT NOT TO UPGRADE, YOUR
ACCOUNT WILL BE TERMINATED. ANY FAILURE BY WEBMESSENGER TO ENFORCE THIS
POLICY WILL NOT PRECLUDE US FROM ENFORCING IT AT ANYTIME IN THE FUTURE,
WHETHER FOR PAST OR CURRENT VIOLATIONS.
EACH CUSTOMER, INCLUDING A COMPANY, IS LIMITED TO
TWENTY-FIVE (25) FREE WEBMESSENGER MOBILE IM ACCOUNTS. If you or your
company desire more than twenty-five (25) WebMessenger Mobile IM
accounts, then you must, and you agree to, upgrade to a paid
WebMessenger enterprise product. Notwithstanding our
Privacy Policy described in Section 2
below, WebMessenger has the right to disclose the email address
of Free Service customers to the owner of the URL associated with that
email address in order to monitor compliance with and enforce the
limitations set forth in this paragraph. In addition, WebMessenger is
permitted to audit your use of the Free Service and any associated
software by providing no less than five (5) days prior written notice of
its intention to conduct such an audit at your facilities during normal
business hours. If WebMessenger ultimately determines, in its sole
discretion and whether or not it has conducted an audit, that you have
violated the foregoing limitations on the Free Service or any associated
software, WebMessenger reserves the right to immediately terminate your
Service. You agree to pay WebMessenger's cost of conducting any audits
that in WebMessenger's discretion reveal non-compliance.
2. Privacy Policy. WebMessenger is dedicated to
establishing trusting relationships with its customers, based on respect
for personal identity and information. To demonstrate our commitment to
Customer privacy, we have developed a Privacy Policy, a current copy of
which is available at
www.webmessenger.com/privacy.html
If we decide to change our privacy practices, we
will post those changes in our Privacy Policy, and other places we deem
appropriate, so our customers are always aware of what information we
collect, how we use it, and under what circumstances, if any, we
disclose it. We will use information in accordance with the Privacy
Policy under which the information was collected. If, however, we are
going to use customers' personally identifiable information in a manner
different from that stated at the time of collection we will notify
customers via email. Customers will have a choice as to whether or not
we use their information in this different manner. However, if customers
have opted out of all communication with WebMessenger, or
deleted/deactivated their account, then they will not be contacted, nor
will their personal information be used in this new manner. In addition,
if we make any material changes in our privacy practices that do not
affect customer information already stored in our database, we will post
a prominent notice on our Web site notifying customers of the change. In
some cases where we post a notice we will also email customers, who have
opted to receive communications from us, notifying them of the changes
in our privacy practices.
3. Customer Responsibilities. You are fully
responsible for the contents of your transmissions through the Services.
WebMessenger simply acts as a passive conduit for you to send and
receive information of your own choosing. However, WebMessenger reserves
the right to take any action with respect to the Services that
WebMessenger deems necessary or appropriate in its sole discretion if
WebMessenger believes you or your information may create liability for
WebMessenger, compromise or disrupt the Services for you or other
customers, or cause WebMessenger to lose (in whole or in part) the
services of WebMessenger's ISPs or other suppliers. Your use of the
Services is subject to all applicable local, state, national and
international laws and regulations (including without limitation those
governing account collection, export control, consumer protection,
unfair competition, anti-discrimination or false advertising). You
agree: (1) to comply with all laws regarding the transmission of
technical data exported from any country through the Services; (2) not
to use the Services for illegal purposes; (3) not to interfere or
disrupt networks connected to the Services; (4) to comply with all
regulations, policies and procedures of networks connected to the
Services; (5) not to use the Services to infringe any third party's
copyright, patent, trademark, trade secret or other proprietary rights
or rights of publicity or privacy; and (6) not to transmit through the
Services any unlawful, harassing, libelous, abusive, threatening,
harmful, vulgar, obscene or otherwise objectionable material of any kind
or nature. You further agree not to transmit any material that
encourages conduct that could constitute a criminal offense, give rise
to civil liability or otherwise violate any applicable local, state,
national or international law or regulation. The Services make use of
the Internet for you to send and receive information of your own
choosing. As a result, your conduct is subject to Internet regulations,
policies and procedures. You agree not use or reference the Services for
chain letters, junk instant messages, spamming or any use of
distribution lists to any person who has not given specific permission
to be included in such a process, and further agree not to attempt to
gain unauthorized access to other computer systems. You shall not
interfere with another Customer's use and enjoyment of the Services or
another entity's use and enjoyment of similar services.
You must (a) obtain and pay for all equipment and
third-party services (e.g., Internet access and instant messaging
service) that may be required for you to access and use WebMessenger
Mobile IM Services; (b) maintain the security of your account password
number and other confidential information relating to your WebMessenger
account and; (c) be responsible for all charges resulting from use of
your WebMessenger account, including unauthorized use prior to your
notifying WebMessenger of such use and taking steps to prevent its
further occurrence.
4. Termination. a. Either you or WebMessenger may
terminate your WebMessenger Mobile IM account at any time, with or
without cause, upon notice. Any such notice by you to WebMessenger must
be in accordance with WebMessenger's verification procedures, as such
procedures may be established and changed by WebMessenger from time to
time in its sole discretion, and which may include the requirement that
you contact WebMessenger by phone to confirm that any such notice was in
fact sent by you. WebMessenger also reserves the right to terminate or
suspend your WebMessenger Mobile IM account without prior notice,
provided that WebMessenger will attempt to confirm such termination or
suspension by subsequent notice.
b. WebMessenger may automatically terminate your
Free account without notice if: (i) no instant messages are sent from or
received in your account during any continuous thirty (30) day period
(for purposes of this determination, advertisements and informational
messages sent by WebMessenger are not considered instant messages
received) or (ii) you or an intermediary blocks or filters any instant
message sent by or on behalf of WebMessenger to your WebMessenger Mobile
IM account(s) where you receive your instant messages.
5. Customer Representations. You represent and
warrant that you are at least 18 years of age or, as applicable, the age
of majority in the state or province in which you reside, and that you
possess the legal right and ability to enter into this Agreement. You
agree to be financially responsible for your use of WebMessenger Mobile
IM Services (as well as for use of your account by others, including
minors living with you) and to comply with your responsibilities and
obligations as stated in this Agreement.
6. Modifications to Customer Agreement.
WebMessenger may automatically amend this Agreement at any time by (a)
posting a revised WebMessenger Mobile IM Customer Agreement on the
WebMessenger Website, and/or (b) sending information regarding the
amendment to the email address you provide to WebMessenger. YOU ARE
RESPONSIBLE FOR REGULARLY REVIEWING THE WEBMESSENGER MOBILE IM WEBSITE
TO OBTAIN TIMELY NOTICE OF SUCH AMENDMENTS. YOU SHALL BE DEEMED TO HAVE
ACCEPTED SUCH AMENDMENTS BY CONTINUING TO USE WEBMESSENGER MOBILE IM
SERVICES AFTER SUCH AMENDMENTS HAVE BEEN POSTED OR INFORMATION REGARDING
SUCH AMENDMENTS HAS BEEN SENT TO YOU. Otherwise, this Agreement may not
be amended except in writing signed by both you and WebMessenger.
7. Modifications to Services. WebMessenger reserves
the right to modify or discontinue any of the Services with or without
notice to you. WebMessenger shall not be liable to you or any third
party should WebMessenger exercise its right to modify or discontinue
the Services.
8. Member Account, Password, and Security. As part
of the registration process, you will be required to provide an email
address. Once you become a registered user, your WebMessenger Mobile IM
account access information will be automatically sent to you by email.
You may change your password to protect use of your account. You are
entirely responsible for failing to maintain the confidentiality of your
password account information. Furthermore, you are entirely responsible
for any and all activities that occur under your account. You agree to
immediately notify WebMessenger of any unauthorized use of your account
or any other breach of security known to you.
9. Disclaimer of Warranties and Limitation of
Liability. WEBMESSENGER MOBILE IM SERVICES AND ALL OTHER WEBMESSENGER
SOFTWARE AND SERVICES ARE PROVIDED "AS IS," AND NEITHER WEBMESSENGER NOR
ANY OF ITS LICENSORS OR SERVICE PROVIDERS MAKES ANY EXPRESS OR IMPLIED
REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE USABILITY, CONDITION
OR OPERATION THEREOF. WEBMESSENGER DOES NOT WARRANT THAT ACCESS TO OR
USE OF SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT
WEBMESSENGER SOFTWARE OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF
PERFORMANCE OR QUALITY. WEBMESSENGER AND EACH OF ITS LICENSORS AND
SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS
FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR
ACCURACY.
YOUR USE OF WEBMESSENGER AND ALL OTHER WEBMESSENGER
SOFTWARE AND SERVICES IS AT YOUR OWN RISK. YOU ASSUME FULL
RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR
USE OF FILES OR OTHER MATERIAL (INCLUDING WEBMESSENGER SOFTWARE)
OBTAINED EITHER DIRECTLY OR INDIRECTLY FROM WEBMESSENGER. YOU AGREE THAT
NEITHER WEBMESSENGER NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS WILL
BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL OR SPECIAL DAMAGES)
ARISING OUT OF YOUR USE OF OR INABILITY TO USE WEBMESSENGER OR ANY OTHER
WEBMESSENGER SOFTWARE OR SERVICES, AND YOU HEREBY WAIVE ANY CLAIMS WITH
RESPECT THERETO, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS,
EVEN IF WEBMESSENGER OR ANY SUCH LICENSOR OR SERVICE PROVIDER HAS BEEN
ADVISED OF THE POSSIBILITY OF DAMAGES. THE ENTIRE LIABILITY OF
WEBMESSENGER AND ITS LICENSORS AND SERVICE PROVIDERS AND YOUR EXCLUSIVE
REMEDY WITH RESPECT TO THE USE OF WEBMESSENGER AND ANY OTHER
WEBMESSENGER SERVICES AND SOFTWARE 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 SOFTWARE OR SERVICES IN THE THREE (3) MONTHS PRECEDING
THE DATE OF YOUR CLAIM OR (II) U.S.$500.00. YOU HEREBY RELEASE
WEBMESSENGER AND EACH OF ITS LICENSORS AND SERVICE PROVIDERS FROM ANY
AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS
LIMITATION. 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.
NEITHER WEBMESSENGER NOR ANY OF ITS LICENSORS OR
SERVICE PROVIDERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS,
EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS DIFFICULTIES
OUTSIDE OF WEBMESSENGER'S OR ANY SUCH LICENSOR'S OR SERVICE PROVIDER'S
CONTROL WHICH COULD LEAD TO THE INTERRUPTION OF DATA DELIVERY SERVICE TO
THE CUSTOMER'S INSTANT MESSAGING ACCOUNT OR ANY OTHER RECEIVING DEVICES
OR THIRD-PARTY DATA STORAGE AND/OR DELIVERY SERVICES.
YOU WILL NOT RELY ON ANY REPRESENTATION OR
WARRANTY, EXPRESSED OR IMPLIED, MADE BY ANY PERSON OTHER THAN AN
AUTHORIZED OFFICER OF WEBMESSENGER, IN EVALUATING THE WEBMESSENGER
SERVICE OR ANY OTHER SERVICES AND/OR PRODUCTS OF WEBMESSENGER.
10. Ownership. All programs, services, processes,
designs, software, technologies, trademarks, trade names, inventions and
materials comprising the WebMessenger Mobile IM Service are wholly owned
by WebMessenger and/or its licensors and service providers except where
expressly stated otherwise.
11. Indemnification. You agree to indemnify
WebMessenger and each of its licensors and service providers from and
against any and all liabilities, expenses (including attorneys' fees)
and damages arising out of claims based upon use of your WebMessenger
Mobile IM account, 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 instant messages.
12. No Resale Of The Services. Your right to use
the Services is personal to you. You may be either an individual or a
corporation or business entity, but you agree not to resell the use of
the Services.
13. Participation In Promotions Of Advertisers. You
may enter into correspondence with or participate in promotions of
advertisers showing their products on the Services. Any such
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, are
solely between you and the advertiser. WebMessenger assumes no
liability, obligation or responsibility for any part of any such
correspondence or promotion.
14. Notices; Consent. Notices given by WebMessenger
to you will be given by email or by a general posting on the
WebMessenger Website, or by conventional mail. In any matter requiring
WebMessenger's prior consent, such consent will be considered given only
if made in the foregoing manner by an authorized representative of
WebMessenger. Notices given by you to WebMessenger must be given by
email or by conventional mail (subject, however, to WebMessenger's
verification procedures, as may be established by WebMessenger from time
to time in its sole discretion, and which may include the requirement
that you contact WebMessenger by phone so as to confirm that any such
notice was in fact sent by you). Notices to WebMessenger by conventional
mail must be sent to WebMessenger, Inc., 9444 Haines Canyon Avenue,
Tujunga, CA 91024, U.S.A.
15. General Terms. THE LAWS OF THE STATE OF
CALIFORNIA, U.S.A., EXCLUDING ITS CONFLICTS-OF-LAW RULES, GOVERN THIS
AGREEMENT AND YOUR USE OF WEBMESSENGER SOFTWARE AND SERVICES. THE UN
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY
DISCLAIMED. YOU EXPRESSLY AGREE THAT EXCLUSIVE JURISDICTION FOR ANY
CLAIM OR DISPUTE ARISING FROM THE USE OF WEBMESSENGER SOFTWARE OR
SERVICES RESIDES IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL
DISTRICT OF CALIFORNIA OR A SUPERIOR COURT FOR THE STATE OF CALIFORNIA
LOCATED IN LOS ANGELES COUNTY; provided nothing in this section shall
restrict either of the parties from resorting to the courts of any
jurisdiction in order to collect, enforce or execute any judgment
obtained in the federal or state courts located in the State of
California. 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. WebMessenger's failure to act with respect
to a breach by you or others does not waive WebMessenger'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. WebMessenger shall not be liable for any delay or
failure to perform resulting directly or indirectly from any causes
beyond WebMessenger's reasonable control. Parental control protections
(such as computer hardware, software, or filtering services) are
commercially available that may assist you in limiting access to
material that is harmful to minors, although such technology may not be
effective with regard to receipt of email messages as provided as part
of the Services.
16. Legal Notices. Under California Civil Code
Section 1789.3, California Customers are entitled to the following
specific consumer rights information:
Pricing Information. Current rates for using the
Service may be obtained by calling our Customer Service department.
WebMessenger reserves the right to change fees, surcharges, and monthly
fees or to institute new fees at any time, as provided for in Section 13
above.
Complaints. The Complaint Assistance Unit of the
Division of Consumer Services of the Department of Consumer Affairs may
be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814,
or by telephone at 1-916-445-1254.
|
