KidMail SUBSCRIBER AGREEMENT
Connection, LLC (the “Company”) provides the KidMail
safe messaging service, software and website to you subject to
compliance with the notices, terms, and conditions set forth below
and elsewhere on the KidMail web site (including but not limited
to those in the KidMail
Acceptable Use Policy, and the KidMail
Software End User License Agreement). Any use by you of the
KidMail client software or the KidMail safe messaging service
constitutes acceptance of all such notices, terms, and conditions.
NOTE: This Agreement (and any agreement, rule, or policy
relating to the KidMail Software or KidMail Services) may be modified
by the Company at any time by publication through the KidMail.net
website or by sending each User an e-mail. YOU ARE RESPONSIBLE
FOR REGULARLY REVIEWING THE KidMail WEBSITE TO OBTAIN TIMELY NOTICE
OF SUCH MODIFICATIONS. YOU SHALL BE DEEMED TO HAVE ACCEPTED SUCH
MODIFICATIONS BY CONTINUING TO USE THE SITE AND ANY OF THE KidMail
SOFTWARE OR SERVICES AFTER SUCH MODIFICATIONS HAVE BEEN POSTED
OR INFORMATION REGARDING SUCH MODIFICATIONS HAS BEEN SENT TO YOU.
Agreement (the “Agreement”) sets forth the terms and
conditions under which e-mail Connection, LLC (the “Company”),
together with any affiliate of the Company and/or distribution
partner of the Company, agrees to provide the KidMail.NET e-mail
account hosting service (hereinafter the “Service”)
to you on behalf of yourself and minors for whom you have legal
guardianship (collectively referred to as, “you” or
“Subscriber”). By completing the registration and
using the Service, You (i) agree that your use of the Service
is bound by the terms of this Agreement, and (ii) represent and
warrant that you are at least 18 years of age. If you do not agree
with the foregoing, you may not use the Service. This Agreement
takes effect on the date on which you accept this Agreement, and
continues until your subscription is terminated.
Company reserves the right to modify the terms of this Agreement
or prices for the Service and may discontinue or revise any or
all other aspects of the Service in its sole discretion at any
time by posting changes online. Your continued use of the Service
after changes are posted constitutes your acceptance of this Agreement
as modified by the posted changes. The updated, online version
of this Agreement shall supersede any prior version of this Agreement
that may have been included in any software or related materials
provided by Company.
1. Subscription. Your subscription entitles you
to use the Service. Your subscription is personal to you, you
agree not to assign, transfer, resell or sublicense your rights
as a subscriber unless specifically allowed by this Agreement.
You agree that you are solely responsible and liable for any and
all breaches of the terms and conditions of this Agreement, whether
such breach results from your use of the Service or by another
using your computer. You agree to contact Company immediately
upon the occurrence of any change in the status of your account
(e.g., change in individuals authorized to use your account) for
the purpose of updating your account information.
Payment Terms. You agree to pay all monthly fees and
installation charges, including applicable franchise fees, taxes,
customer service fees, late fees and door collection fees. Monthly
fees will be billed one month in advance. If payment is not received
by the due date, late fees and/or collection charges may be assessed
and the Service may be terminated. You may be required to pay
a reconnect fee and/or a security deposit in addition to all past
due charges before the Service is reconnected.
Acceptable Use Policy. You agree to use the Services
strictly in accordance with the KidMail
Acceptable Use Policy
which may be modified by Company from time to time, and which
is incorporated herein by reference and made a part of this Agreement.
Without limiting the generality of the foregoing, Company
may terminate any user whom it determines is intentionally attempting
to evade our Acceptable Use Policies or if we believe that user’s
conduct violates other applicable law or is harmful to the interests
of KidMail, its affiliates, or other users, or for any other reason
in our sole discretion, with or without cause.
Communication Responsibility. You are solely responsible
and liable for all material that you e-mail, transmit or otherwise
make available via the Service. Company does not claim ownership
of material you e-mail or make available via the Service.
Links to Third Party Web Sites. In your use of the Service,
you may encounter various types of links that enable you to visit
web sites operated or owned by third parties (“Third Party
Site(s)”). These links are not under the control or ownership
of Company. The inclusion of any link to a Third Party Site is
not (i) an endorsement by Company of the Third Party Site, (ii)
an acknowledgement of any affiliation with its operators or owners,
or (iii) a warranty of any type regarding any information or offer
on the Third Party Site. Your use of any Third Party Site is governed
by the various legal agreements and policies posted at that Web
Monitoring and Removal of Content. Company is under no
obligation to monitor the Services. However, Company reserves
the right at all times and without notice to remove, restrict
access to, or make unavailable, any content on its servers that
it considers, in its sole discretion, obscene, lewd, lascivious,
filthy, excessively violent, harassing, or otherwise objectionable,
and to monitor, review, retain and/or disclose any content or
other information in Company’s possession about or related
to you, your use of the Services or otherwise as Company deems
necessary to satisfy any applicable law, regulation, legal process,
or governmental request.
Privacy. You agree that Company may collect and disclose
information concerning you and your use of the Service in the
which may be modified by Company from time to time, and which
is incorporated herein by reference and made a part of this Agreement.
No Spam or Other Unsolicited Bulk e-mail. Company may
immediately terminate any subscriber account that it determines,
in its sole discretion, is transmitting or is otherwise connected
with any “spam” or other unsolicited bulk e-mail.
In addition, if actual damages cannot be reasonably calculated,
you agree to pay Company liquidated damages of five dollars (U.S.
$5.00) for each piece of “spam” or unsolicited bulk
e-mail transmitted from or otherwise connected with your account.
Otherwise you agree to pay Company’s actual damages, to
the extent such actual damages can be reasonably calculated. Company
reserves the right to block, reject or remove what it considers
in its sole discretion to be “spam” or other unsolicited
bulk e-mail from the Service.
Termination and Surviving Obligations. Either party may
terminate this Agreement at any time without cause by providing
the other party with no less than twenty-four (24) hours written
notice of such termination. In the event of termination by you,
you must also notify Company by a non-electronic written submission.
e-mail submissions shall not constitute effective notice. In the
event of termination by Company, Company may notify you of such
termination by electronic or other means. In those cases where
you elect annual prepayment terms, you agree and understand that
the calculation of any refund for unused Service will be based
upon the normal monthly rate for the Service and not upon the
discounted annual prepayment rate.
expressly agree that upon termination of this Agreement: (i) You
will pay Company in full for your use of any Service up to the
later of the effective date of termination of this Agreement or
the date on which the Service and has been You agree to pay Company
on a pro-rated basis for any use by you of any Services for a
part of a month. (ii) Company is authorized to delete any files,
programs, data and e-mail messages associated with such account.
Disclaimer of Warranties and Limitation of Liability.
You expressly agree that Company is not responsible or liable
for any content, act or omission of any third party including,
without limitation, any threatening, defamatory, obscene, offensive,
or illegal conduct, or any infringement of another’s rights
including, without limitation, privacy and intellectual property
rights. It is possible that hackers may attack the KidMail.net
web system or intercept web communication across the Internet,
and thereby gain access directly or indirectly to personal information
and messages. Our Company makes a reasonable effort to protect
our systems, however web system vulnerabilities, database vulnerabilities,
and SPAM vulnerabilities are myriad and constantly evolving. There
can be no assurance that our system will not be compromised somehow
by a malicious or inadvertent attack. THE SERVICE IS PROVIDED
TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND. NEITHER
COMPANY, NOR ITS AFFILIATES OR ANY OF ITS SUPPLIERS OR LICENSORS,
EMPLOYEES OR AGENTS WARRANT THE SERVICE WILL BE UNINTERRUPTED
OR ERROR FREE OR FREE FROM VIRUSES, OBSCENITY, OR OTHER HARMFUL
OR MALICIOUS AGENTS. COMPANY DOES NOT WARRANT THAT ANY
DATA OR ANY FILES SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED
FORM OR WITHIN A REASONABLE PERIOD OF TIME. ALL REPRESENTATIONS
AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTIES OF TITLE, NONINFRINGEMENT, FITNESS
FOR A PARTICULAR PURPOSE AND MERCHANTABILITY ARE HEREBY EXCLUDED
AND DISCLAIMED. COMPANY AND ITS EMPLOYEES, REPRESENTATIVES AND
AGENTS ARE NOT LIABLE FOR ANY COSTS OR DAMAGES, ARISING DIRECTLY
OR INDIRECTLY, FROM THE INSTALLATION OR USE, OF THE SERVICE, OR
COMPANY’S PROVISION OF TECHNICAL SERVICE AND SUPPORT FOR
THE SERVICE; EVEN IF SUCH DAMAGE RESULTS FROM THE NEGLIGENCE OR
GROSS NEGLIGENCE OF THE COMPANY TECHNICIAN OR CUSTOMER SERVICE
REPRESENTATIVE, INCLUDING ANY INDIRECT, INCIDENTAL, EXEMPLARY,
SPECIAL, PUNITIVE OR DAMAGES, REGARDLESS OF WHETHER OR NOT COMPANY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT,
COMPANY’S CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS
RELATING TO THE USE OF THE SERVICE SHALL NOT EXCEED THE TOTAL
AMOUNT OF SERVICE FEES PAID DURING THE IMMEDIATELY PRECEEDING
TWELVE MONTH PERIOD. YOU HEREBY RELEASE COMPANY FROM ANY AND ALL
OBLIGATIONS, LIABILITIES, AND CLAIMS IN EXCESS OF THIS LIMITATION.
COMPANY IS ALSO NOT LIABLE FOR ANY COSTS OR DAMAGES ARISING FROM
OR RELATED TO YOUR BREACH OF THIS AGREEMENT. Your sole and exclusive
remedy under this Agreement are as expressly set forth herein.
Some states do not allow the exclusion or limitation of implied
warranties, so the above exclusions or limitations may not apply
Indemnification. You agree to indemnify and hold Company,
its parents, subsidiaries, members, affiliates, officers and employees,
harmless from any claim, demand, or damage, including costs and
reasonable attorneys' fees, asserted by any third party due to
or arising out of your use of or conduct on the KidMail system.
Company will notify you within a reasonable period of time of
any claim for which Company seeks indemnification and will afford
you the opportunity to participate in the defense of such claim,
provided that your participation will not be conducted in a manner
prejudicial to Company’s interests, as reasonably determined
Management of Network. Company reserves the right to
manage its network for the greatest benefit of the greatest number
of subscribers including, without limitation, the following: rate
limiting, rejection or removal of “spam” or otherwise
unsolicited bulk e-mail, traffic prioritization, and protocol filtering.
You expressly accept that such action on the part of Company may
affect the performance of the Service. Company reserves the right
to enforce limits on specific features of the Service including,
without limitation, e-mail storage maximums.
Copyright and Trademark Notices. Copyright © 1994-2003
e-mail Connection, LLC. Any rights not expressly granted in this
Agreement are reserved for the exclusive use of e-mail Connection,
LLC. KidMail, the KidMail logo, the KidMail character, "e-mail
for Kids" and “The Safe Messaging Service” are
the exclusive trademarks of e-mail Connection, LLC.
14. Governing Law and Jurisdiction.
This Agreement shall be
exclusively governed by, and construed in accordance with, the
laws of the State of Washington. All disputes arising out of or
related to this Agreement and the Service must be brought in a
federal or state court located in the state of Washington, King
County. You consent to the personal jurisdiction of such courts
located in the state of Washington. You waive all rights to bring
any claim, suit or proceeding more than one (1) year after the
date the cause of action arose.
15. Notices to Company.
Any notices to Company or questions about the Subscription Agreement
and use of the services can be directed to the following address:
Director of KidMail Subscriptions
e-mail Connection, LLC
15127 NE 24th Street, Suite 468
Redmond, Washington, U.S.A. 98052
16. Miscellaneous. This
Agreement constitutes the entire agreement and understanding between
the parties with respect to its subject matter and supersedes
and replaces any and all prior written or oral agreements. In
the event that any portion of this Agreement is held to be unenforceable,
the unenforceable portion shall be construed in accordance with
applicable law as nearly as possible to reflect the original intentions
of the parties and the remainder of its provisions shall remain
in full force and effect. Nothing contained in this Agreement
shall be construed to limit Company’s rights and remedies
available at law or in equity. Company’s failure to insist
upon or enforce strict performance of any provision of this Agreement
shall not be construed as a waiver of any provision or right.
Neither the course of conduct between the parties nor trade practice
shall act to modify any provision of this Agreement. This Agreement
may not be assigned or transferred by you. This Agreement is freely
assignable by Company to third parties.