KIDMAIL SUBSCRIBER AGREEMENT

 

Trustworthy Communication 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 Privacy Policy, 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.

PLEASE 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.NET 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.

SUBSCRIBER AGREEMENT

This Agreement (the “Agreement”) sets forth the terms and conditions under which Trustworthy Communication 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.

2. Payment Terms. The KidMail.net service is automatically charged to your credit card or debit account on a recurring, cyclic basis (the standard options are monthly, quarterly, and annually). By selecting a subscription plan and providing your billing information, you expressly agree to also allow us to take payment automatically for all recurring fees, including applicable taxes. You furthermore agree to pay fees that may be assessed for violation of the Company's anti-spam policies. Recurring subscription fees will be collected in advance of the service provision period. If payment is not able to be processed on the due date or within a reasonable length grace period, 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 will be reconnected.

3. 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.

4. 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.

5. 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 site.

6. 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.

7. Privacy. You agree that Company may collect and disclose information concerning you and your use of the Service in the manner and for the purposes set forth in the KidMail Privacy 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.

8. 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.

9. Termination and Surviving Obligations. Either party may terminate this Agreement at any time with or without cause.

To serve notice of account termination, Customer must utilize the account cancellation web page that is prominently linked within his or her authenticated account details page. Customer may also send written notice to the company. E-Mail communication by Customer will not be deemed to be valid notice of Termination unless authenticated by a digital signature.

If subject to the "Money Back Guarantee" grace period of 30 days, you will receive a full refund of the most recent pre-payment. You agree and understand that the Company does not provide a refund for unused Services in the event of cancellation following expiration of the money back guarantee period. The Money Back Guarantee is applicable to new accounts, but not to renewals.

You expressly agree that upon Termination, Company is authorized to delete any files, programs, data and e-mail messages associated with such account.

10. 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 to you.

11. 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 by Company.

12. 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.

13. Copyright and Trademark Notices. Copyright © 1994-2003 Trustworthy Communication LLC. Any rights not expressly granted in this Agreement are reserved for the exclusive use of Trustworthy Communication LLC. KidMail, the KidMail logo, the KidMail character, "e-mail for Kids" and “The Safe Messaging Service” are the exclusive trademarks of Trustworthy Communication 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
Trustworthy Communication 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.

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