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This SpamWall Terms of Service Services Agreement
(the "Agreement") governs the provision of the Services
(as defined below) by SpamWall Services LLC ("SpamWall")
to you. This Agreement includes, and incorporates by this reference,
the policies and guidelines referenced below. SpamWall reserves
the right to change or revise the terms and conditions of this Agreement
at any time by posting any changes or a revised Agreement on this
site (www.SpamWall.net). SpamWall will alert you that changes or
revisions have been made by indicating on the top of this Agreement
the date it was last revised. The changed or revised Agreement will
be effective immediately after it is posted on this Web site. Your
use of the Services following the posting of any such changes or
of a revised Agreement will constitute your acceptance of any such
changes or revisions. SpamWall encourages you to review this Agreement
whenever you visit the SpamWall Web site to make sure that you understand
the terms of the Services provided to you. This Agreement does not
alter in any way the terms or conditions of any other written agreement
you may have with SpamWall for other products or services. If you
do not agree to this Agreement (including any referenced policies
or guidelines), please immediately terminate your use of the Services.
If you would like to print this Agreement, please click the print
button on your browser toolbar.
(a) Description. The Services include the blocking of e-mails
from persons sending e-mail to you ("Senders") prior to
verification by SpamWall (the "Services"). SpamWall will
send one or more e-mails to Senders using your e-mail address to verify
and, if necessary, to re-verify Senders. SpamWall will use commercially
reasonable efforts to block e-mails sent to you by unverified Senders
during the Term (as defined below); provided, however, that SpamWall
makes no such representation or warranty to you if you elect not
to pay the Fee (as defined below) following the conclusion of the
Trial Period (as defined below). SpamWall reserves the right, without
liability to you or any other third party, to modify or discontinue,
temporarily or permanently, in whole or in part, the Services without
notice.
(b) Free Trial Period. SpamWall will provide
the Services to you for a ten (10) day period free of charge (the
"Trial Period"). The Trial Period will begin on the date
you complete the registration process and end on the 10th day after
that date.
(c) Fees. Upon the conclusion of the Trial
Period, SpamWall will notify you that the Trial Period has ended
and will ask you whether you would like continue the Services for
a Semi-annual fee (the "Fee"). If you elect to continue
the Services at the Fee set forth in the notice from SpamWall, complete
the necessary additional registration information including your
credit card information. SpamWall will charge the Fee to your credit
card when you complete the registration process. SpamWall accepts
Visa or MasterCard. If, at any time thereafter, you fail to pay
any amount under this Agreement when due or are otherwise in breach
or default under this Agreement, SpamWall may, in its sole discretion,
and without prejudice to its other rights, immediately terminate
your use of the Services. Late payments hereunder will accrue interest
at the rate of one and one half percent per month or the highest
rate allowed by applicable law, whichever is lower.
(d) Agreement Term. The term of this Agreement
(the "Term") will begin on the date on which you elect
to continue the Services for the Fee. SpamWall's provision of the
Services to you will continue for a six-month period from the beginning
of the Term unless earlier terminated under Article VII or as set
forth below. The Services shall be automatically renewed thirty
(30) days prior to the end of the Term (hereafter, the "Renewal
Date") for a successive six-month period unless earlier terminated
by you or SpamWall under Article VII or as set forth below. The
renewal Fee will be equal to SpamWall's Fee for Services then in
effect for the renewal Term. If the Fee for the renewal Term is
different from the Fee you had previously been charged for the Services,
you will be notified seven (7) days prior to the Renewal Date and
will be given the opportunity to discontinue the Services as of
the Renewal Date. If you choose to discontinue the Services following
the beginning of the Term, then you will not be charged for the
Services on or after the Renewal Date and this Agreement may thereafter
be terminated at the option of either SpamWall or you. In order
for your termination to be effective, you must provide notice by
contacting SpamWall Customer Support. SpamWall is hereby expressly
authorized to charge your credit card on the Renewal Date an amount
equal to the renewal Fee unless you terminate the Services at the
time you are notified of a change in the Fee, if any, or as provided
in Article VII below. In the event you change your credit card information
(e.g., credit card number or expiration date) or cancel the credit
card on file with SpamWall, you will (1) promptly advise SpamWall
of the same and provide an updated credit card that can be charged
by SpamWall, and (2) pay any amount due SpamWall for the Services.
(e) Termination of Agreement Following Trial
Period. If you decline to continue the Services following the
Trial Period, then the Term will not begin and you will not be charged
for the Services. However, this Agreement will otherwise remain
in effect and you agree to abide by its terms and conditions until
such time as either you or SpamWall terminates this Agreement. If
you wish to terminate this Agreement following the Trial Period,
you must contact SpamWall Customer Support at cancel@SpamWall.net
and insert unsubscribe in the subject line.
(f) Taxes. All payments required by this
Agreement are exclusive of all national, state, municipal or other
governmental excise, sales, value-added, use, taxes and similar
taxes now in force or enacted in the future, all of which you will
be responsible for and will pay in full (other than taxes on SpamWall's
net income).
(a) Registration Obligations. In consideration for access
to the Services, and to establish a Services account, you must provide
SpamWall with certain information ("Registration Data")
requested on the registration form; inquiries marked "required"
must be answered, and any other request for information may be left
blank. You agree that the Registration Data you provide: (1) is
true, accurate, current and complete, and (2) will be maintained
and updated by you to keep it true, accurate, current and complete.
SpamWall reserves the right to terminate your use of the Services
and refuse to provide you with any and all current or future use
of the Services if SpamWall, in its sole discretion, determines
that any of your Registration Data is untrue, inaccurate, not current
or incomplete.
(b) Registry Information Download. As part
of the registration process and once you have completed the information
specified in (a) above,SpamWall's software automatically collects
certain information from your computer (including your Internet
address, browser type, operating software, computer language and
e-mail type and other computer registry information). You will allow
the SpamWall software to obtain this information and not to manipulate
or falsify such information.
(c) Account Security. You will select a
user name and password when completing the registration process.
You are responsible for maintaining the confidentiality of your
user name and password and are fully responsible for all activities,
charges and/or liabilities that occur under your user name and password
whether or not authorized by you. You will immediately notify SpamWall
of any unauthorized use of your user name and password or account
or any other breach of security. SpamWall cannot, and will not,
be liable for any loss or damage arising from your failure to comply
with this section.
(a) Compliance With Laws, Regulations and Requirements. You
will not use the Services for illegal purposes but will abide by
and comply with (1) all applicable local, state, national, and international
laws and regulations in your use of the Services (including laws
regarding the transmission of technical data exported from the United
States), and (2) all requirements, procedures, policies and regulations
of networks connected to the Services.
(b) Non-Interference. You will not interfere
with or disrupt (a) the use and enjoyment of the Services by other
users; or (b) the Services or servers or networks connected to the
Services (including, without limitation, any attempt to gain unauthorized
access to other computer systems or networks connected to the Services).
(c) Resale of the Service. You will not
resell the Services or the use of or access to the Services without
written permission from SpamWall Services LLC.
(d) Terms and Conditions of Use Policy.
You will abide by the current SpamWall "Terms and Conditions
Of Use" policy set forth on the SpamWall Web site at www.SpamWall.net.
(e) Report of Abuse. You will report any
violations of the terms of this Agreement by other users of the
Services of which you become aware by contacting SpamWall at abuse@SpamWall.net.
(f) All Undesired E-Mails May Not Be Blocked.
You acknowledge that the Services are not guaranteed to block all
undesired e-mail from Senders and that you may continue to receive
such e-mails. Further, you understand and acknowledge that despite
the exercise of commercially reasonable efforts on the part of SpamWall,
your e-mails may be delayed or inadvertently lost.
All content, including but not limited to text, software, music,
sound, photographs, graphics, video, or other material contained
in vendor or other sponsor advertisements or information presented
to you as part of the Services, may be protected by intellectual
property or other proprietary rights and laws. You are permitted
to use this material and information only as expressly authorized
by SpamWall or its advertisers, and may not copy, reproduce, transmit,
distribute, or create derivative works of such content or information
without express written authorization from SpamWall in each instance.
(a) Third Party Links. SpamWall is not responsible in any
way for, and does not guaranty the availability of, any e-mail from
or links to third party Web sites and resources that may be accessed
through the SpamWall Web site. In addition, SpamWall does not endorse
and is not responsible or liable for any content, advertising, goods
or services, or other materials available on or from such Web sites
or resources. SpamWall will not be responsible or liable, directly
or indirectly, for any damage or loss caused or alleged to be caused
by or in connection with use of or reliance on any such content,
advertising, goods or services, or other materials on or available
from such Web sites or resources.
(b) Infringer Policy. If you believe that
any material available through the SpamWall Web site infringes upon
any copyright you own or control, or that any link on the SpamWall
Web site directs users to another Web site that contains material
that you own or control, you may file a notification of such infringement
with SpamWall.
SpamWall believes strongly in protecting user privacy and providing
you with notice of SpamWall's use of data, including personal identifying
information, collected on the SpamWall Web site. Please refer to
the current SpamWall Privacy Statement for information regarding
how SpamWall uses and collects information set forth on the SpamWall
Web site at www.SpamWall.net.
(a) By SpamWall. SpamWall may terminate this Agreement or
any part of the Services at any time in the event you breach any
obligation hereunder, fail to respond within ten (10) calendar days
to an inquiry from SpamWall concerning the accuracy or completeness
of the information referred to in Article II of this Agreement,
or if SpamWall determines in its sole discretion that you have violated
this Agreement. [Please refer to the current version of the SpamWall
Acceptable Use Policy set forth on the SpamWall Web site at http://www.SpamWall.net.]
(b) By Notice Prior to End of Term. Either
party may terminate this Agreement by giving thirty (30) days' notice
prior to the conclusion of the Term. In this case, the termination
will take effect at the conclusion of the Term. In order for your
termination to be effective, you must provide notice by sending
an e-mail to cancel@SpamWall.net
and inserting unsubscribe in the subject line. SpamWall will cease
charging your credit card, if applicable, upon the effective date
of the termination.
(c) Effect of Termination. You will not
receive any refund for payments already made by you as of the date
of termination. If termination of this Agreement is due to your
breach hereunder, you will bear all costs of such termination, including
any reasonable costs SpamWall incurs in closing your account. You
will pay any and all costs incurred by SpamWall in enforcing your
compliance with this Article. Upon termination, you shall destroy
any copy of the materials licensed to you hereunder and referenced
herein. Upon termination for any reason or upon your failure to
continue past the Trial Period, regardless of whether a subsequent
termination occurs, SpamWall may delete all or part of the information
related to you on the Services.
You will release, indemnify, defend and hold harmless SpamWall,
and any of its contractors, agents, employees, officers, directors,
shareholders, affiliates and assigns from all liabilities, claims,
damages, costs and expenses, including reasonable attorneys' fees
and expenses, of third parties relating to or arising out of (1)
this Agreement or the breach of your warranties, representations
and obligations under this Agreement, (2) the Services or your use
of such Services, (3) any intellectual property or other proprietary
right of any person or entity, (4) your violation of any of the
provisions of this Agreement, or (5) any information or data you
supplied to SpamWall, including, without limitation, any misrepresentation
in your Registration Data, if applicable. When SpamWall is threatened
with suit or sued by a third party, SpamWall may seek written assurances
from you concerning your promise to indemnify SpamWall; your failure
to provide those assurances may be considered by SpamWall to be
a material breach of this Agreement. SpamWall will have the right
to participate in any defense by you of a third-party claim related
to your use of any of the Services, with counsel of SpamWall's choice
at its expense. SpamWall will reasonably cooperate in any defense
by you of a third-party claim at your request and expense. You will
have sole responsibility to defend SpamWall against any claim, but
you must receive SpamWall's prior written consent regarding any
related settlement. The terms of this Article will survive any termination
or cancellation of this Agreement.
(a) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.
THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE"
BASIS. SpamWall EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND,
WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES, ANY RESULTS OBTAINED
THROUGH THE SERVICES AND ANY GOODS OR SERVICES OBTAINED ON OR THROUGH
THE SERVICES.
(b) WITHOUT LIMITING THE GENERALITY
OF THE FOREGOING, SpamWall MAKES NO WARRANTY:
(1) THAT THE SERVICES WILL
SUCCESSFULLY BLOCK ALL UNDESIRED E-MAIL;
(2) THAT THE SERVICE WILL MEET
YOUR REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;
(3) 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 SERVICES WILL BE CORRECTED;
(4) REGARDING ANY GOODS OR
SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE SERVICES OR
ANY TRANSACTIONS ENTERED INTO THROUGH SERVICES;
(5) REGARDING ANY MATERIAL
AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF
OR FROM THE SERVICES (DOWNLOADING OR ACCESS IS DONE AT YOUR OWN
DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY
DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM
THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA); OR
(6) THAT THE SERVICES WILL
NOT CAUSE YOUR E-MAILS TO BE DELAYED OR INADVERTENTLY LOST.
(c) NO ADVICE OR INFORMATION,
WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SpamWall OR THROUGH
OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED
HEREIN.
(d) SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE
EXCLUSIONS MAY NOT APPLY TO YOU.
(a) SpamWall'S ENTIRE LIABILITY, AND YOUR EXCLUSIVE
REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY SERVICES
PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT
IS SOLELY LIMITED TO THE AMOUNT YOU PAID DURING THE TERM.
(b) SpamWall WILL NOT BE LIABLE
FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES IN ANY MATTER,
INCLUDING LIABILITIES RESULTING FROM (1) THE USE OR THE INABILITY
TO USE THE SERVICES; (2) THE COST OF PROCURING SUBSTITUTE GOODS
AND SERVICES; (3) ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR
MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE
SERVICES; OR (4) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS
OR DATA THROUGH THE SERVICES, INCLUDING BUT NOT LIMITED TO DAMAGES
FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF SpamWall
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(c) SpamWall WILL NOT BE LIABLE
FOR ANY DAMAGES ARISING FROM INTERRUPTION, SUSPENSION OR TERMINATION
OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT,
INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER
SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT,
NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT.
(d) 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.
You authorize us to notify you of information that SpamWall deems
is of potential interest to you. Notices and announcements may include
commercial e-mails and other notices describing changes, upgrades,
new products and services or other information pertaining to Internet
security or to enhance your identity on the Internet and/or other
relevant matters. All notices must be sent either in writing (including
e-mail, but only to the extent expressly provided herein). All written
notices to SpamWall shall be delivered to SpamWall Services LLC,
Attention: Legal, 8500 W. 110th Street, Suite 205, Overland Park,
KS 66210. All notices to you will be delivered to your mailing address
or e-mail address as provided in your account information (as updated
by you pursuant to this Agreement). SpamWall may also provide notices
of changes to this Agreement or any other matter by displaying notices
to you generally on the SpamWall Web site. Either of us may change
SpamWall's respective address by written notice delivered to the
other party. All notices delivered in writing hereunder must be
sent by either overnight courier or certified mail, return receipt
requested.
By applying for the Services through SpamWall's online registration
process or otherwise, or by using the Services, you acknowledge
that you have read and agree to be bound by all terms and conditions
of this Agreement and documents incorporated by reference.
(a) Entire Agreement. This Agreement comprises the entire
agreement among you and SpamWall and supersedes any prior agreements
pertaining to the subject matter contained herein.
(b) Effect of Waiver. The failure of SpamWall
to exercise or enforce any right or provision of this Agreement
will not constitute a waiver of such right or provision. If any
provision of this Agreement is found by a court of competent jurisdiction
to be invalid, the parties nevertheless agree that the court should
endeavor to give effect to the parties' intentions as reflected
in the provision, and the other provisions of this Agreement remain
in full force and effect.
(c) Governing Law and Jurisdiction. This
Agreement will be governed by the laws of the State of Kansas without
regard to its conflict of law principles to the contrary. Neither
party will commence or prosecute any suit, proceeding or claim to
enforce the provisions of this Agreement, to recover damages for
breach of or default under this Agreement, or otherwise arising
under or by reason of this Agreement, other than in the state or
federal courts located in Johnson County, State of Kansas. Each
party hereby irrevocably consents to the jurisdiction and venue
of such courts in connection with any action, suit, proceeding or
claim arising under or by reason of this Agreement. Each party hereby
waives any rights to trial by jury claim arising out of this Agreement
and any related documents.
(d) Statute of Limitation. You agree that
regardless of any statute or law to the contrary, any claim or cause
of action arising out of or related to use of the Services or this
Agreement must be filed within one (1) year after such claim or
cause of action arose or be forever barred.
(e) Heading. The section headings and titles
in this Agreement are for convenience only and have no legal or
contractual effect.
(f) Force Majeure. Neither party will be
deemed in default hereunder, nor will it hold the other party responsible
for, any cessation, interruption or delay in the performance of
its obligations hereunder due to earthquake, flood, fire, storm,
natural disaster, act of God, war, terrorism, armed conflict, labor
strike, lockout, or boycott, provided that the party relying upon
this section (i) will give the other party written notice thereof
promptly and, in any event, within five (5) days of discovery thereof
and (ii) will take all steps reasonably necessary under the circumstances
to mitigate the effects of the force majeure event upon which such
notice is based; provided further, that in the event a force majeure
event described in this paragraph extends for a period in excess
of thirty (30) days in the aggregate, SpamWall may immediately terminate
this Agreement.
(g) Survival. In the event this Agreement
terminates as provided herein, Articles I, II, III, IV, VII, VIII,
IX, X, XII and XIII of this Agreement will survive such expiration
or termination.
SpamWall Terms of Services Agreement
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