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"This was the perfect gift for my sister's baby shower! And I made sure I received a call by giving her a BirthMail account."
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User understands that the BirthMail.com Messaging Service is to be used for the intended purpose of communicating with non-profit and personal groups and SHOULD NOT be used for commercial applications, political purposes, or to perform solicitation and/or telemarketing.
Further, user understands that this service shall not be used to transmit messages that contain profane language and/or other material deemed to be offensive to the recipients or BirthMail. You also agree that any use of the BirthMail.com Service will conform to the User Agreement (as outlined below).
Terms Of Use
BirthMail.com is providing users with access to its telephone messaging services and web site, (the "BirthMail.com Service"), subject to the terms and conditions of this User Agreement (the "Terms of Use"). Any new features, changes, updates or improvements of the current BirthMail.com Service, and the availability of new BirthMail.com services, shall be subject to the terms of this User Agreement unless explicitly stated otherwise.
1. YOUR ACCEPTANCE OF THIS USER AGREEMENT
Please read the User Agreement carefully before using or registering for the BirthMail.com Service. By using or registering for the BirthMail.com Service, you agree to be bound by the terms and conditions set forth. If you do not wish to be bound by these terms and conditions, you may not access or use the BirthMail.com Service.
2. MODIFICATION OF TERMS
We reserve the right to modify and restate the terms and conditions of the User Agreement, and modification(s) shall be effective immediately upon being posted on the BirthMail.com web site.
Unless explicitly stated otherwise, any new features that augment or enhance the current BirthMail.com Service, including the release of new BirthMail.com properties, shall be subject to the User Agreement. You understand and agree that the BirthMail.com Service is provided "AS-IS" and that BirthMail.com assumes no responsibility for the timeliness, deletion, incorrect delivery or failure to store any user communications or personalized information.
You are responsible for reviewing these terms and conditions regularly. Your continued use of the BirthMail.com Service shall be deemed to be your conclusive acceptance of all modifications to the User Agreement.
3. PRIVACY POLICY
By using or registering for the BirthMail.com Service you acknowledge that you have read and accept the BirthMail.com Privacy Statement. Before using or registering for the BirthMail.com Service, please carefully read the BirthMail Privacy Statement. You may access the Privacy Statement by visiting http://www.BirthMail.com/privacy.cfm.
4. REGISTRATION INFORMATION
You agree, as a condition of your use of the BirthMail.com Service, to provide BirthMail.com with accurate and complete information when registering for or using the BirthMail.com Service, and to update and maintain such information. BirthMail.com has the right to suspend, restrict or terminate your use of the BirthMail.com Service and to refuse any future use of all or portions of the BirthMail.com Service if BirthMail.com has reason to believe that you have failed to comply with these requirements.
5. MINIMUM AGE
If you are under the age of fifteen, you are prohibited from using or registering for the BirthMail.com Service. By using or registering for the BirthMail.com Service, you warrant to BirthMail.com that you are above the age of fifteen. In addition, parents of children between the ages of 15 and 18 should be aware that the BirthMail.com Service is designed to appeal to a broad audience. Accordingly, as a parent or legal guardian, it is your responsibility to determine whether any portion of the BirthMail.com Service is inappropriate for your child.
6. ACCOUNT SECURITY
When you are registered, you enter a phone number that becomes your account identifier or User Identification number (User ID), and a Personal Identification Number (PIN). You are responsible for protecting the confidentiality of your PIN and User ID, and are fully responsible for all activities that occur under your PIN and User ID. You agree: (a) to exit from your account when you conclude each session, and (b) to immediately notify BirthMail of any loss, compromise or unauthorized use of your PIN and User ID or any other breach of security. You may notify BirthMail.com by sending an e-mail to customerservice@BirthMail.com. BirthMail.com will not be liable for any loss or damage of any kind should you fail to comply with these requirements.
7. CONSENT TO RECORD YOUR VOICE INPUTS
You agree and consent that BirthMail.com may record the oral or voice communications, utterances, conversations or commands ("Voice Inputs") made by you during the use of the BirthMail.com Service. By using the BirthMail.com Service, you expressly consent and grant to BirthMail.com the right to record and use your Voice Inputs. If you do not want your Voice Inputs recorded or used, you may not use the BirthMail.com Service.
8. NON-COMMERCIAL PERSONAL USE
Unless otherwise specified by BirthMail.com, the BirthMail.com Service is for your personal and non-commercial use. You may not modify, copy, distribute, transmit, displace, perform, reproduce, publish, license, transfer, or sell any information, products or services that you access or obtain from any portion of the BirthMail.com Service.
9. RESTRICTION AND MODIFICATION OF SERVICE
You agree that BirthMail.com may limit your use of the BirthMail.com Service, including without limitation the frequency and duration for which you may access the BirthMail.com Service, and that BirthMail.com has no responsibility or liability for any unavailability or limitation on use of the BirthMail.com Service. In addition, BirthMail.com reserves the right at any time to limit: access to, modify, change or discontinue the BirthMail.com Service, or any part thereof, with or without notice. You agree that BirthMail shall not be liable to you or to any third party for any modification, suspension or discontinuance of the BirthMail.com Service. You acknowledge and agree that BirthMail may establish general practices and limits, which may not be published, concerning the use of the BirthMail.com Service, including without limitation the maximum time that messages will be retained, the maximum number of messages that may be sent from or received by an account on the BirthMail.com Service, the length of message sent and the maximum number of times, and the maximum duration for which you may access the Service, in a given period of time. You agree that BirthMail.com has no responsibility or liability for the deletion or failure to store any messages and other communications maintained or transmitted by the BirthMail.com Service. You acknowledge that BirthMail.com reserves the right to terminate any inactive or dormant account(s). You agree and BirthMail.com reserves the right to change these general practices and limits at any time, in our sole discretion, with or without notice.
10. YOUR CONDUCT
As a condition of your use of the BirthMail.com Service, you agree and warrant to BirthMail.com that you will not use the BirthMail.com Service for any purpose that is unlawful or prohibited by the User Agreement. You may not use the BirthMail.com Service in any manner that could damage, impair, disable or overburden the BirthMail.com Service, interfere in any way with BirthMail.coms' rights, interfere in any way with any other user's use and enjoyment of the BirthMail.com Service, or otherwise infringe on any person's rights.
Specifically, you agree and warrant to BirthMail.com that:
a. You will follow the letter and spirit of the terms of the User Agreement and all applicable laws;
b. You will not use, or attempt to use, the BirthMail.com Service in connection with any commercial messages, junk messages, spamming, advertising or messages that are duplicative, unsolicited, or promotional in nature;
c. You will not send, or attempt to send, messages to emergency lines, to any health care facility or similar establishment, to numbers assigned to radio common carrier services or to any service for which the called party is charged for the call;
d. You will not transmit, or attempt to transmit, any material that may infringe the contractual, fiduciary, intellectual property rights, or other rights of third parties, including trademark, copyright or the right of publicity;
e. You will not impersonate, or attempt to impersonate, any other person, falsify contact information, misrepresent a relationship with any person or entity, including misrepresenting a relationship with BirthMail, or otherwise attempt to mislead others as to the identity of the sender or the origin of a message;
f. You will not use, or attempt to use, the BirthMail.com Service to convey any information that may be considered unlawful, harassing, libelous, abusive, threatening, obscene, hateful, offensive, harmful, vulgar, distasteful, defamatory, or invasive of another person's privacy or proprietary rights.
g. You will not resell, or attempt to resell, the use of the BirthMail.com Service;
h. You will not collect, or attempt to collect, or store information about the BirthMail.com Service or other users, including contact information, without their consent;
i. You will not interfere, or attempt to interfere, with or disrupt connections to the BirthMail.com Service or violate the regulations, policies or procedures of such connections;
j. You will not attempt to gain unauthorized access to the BirthMail.com Service, other accounts, computer systems or networks connected to the Service.
You agree and BirthMail.com retains the right, at its sole discretion, to determine whether or not a User’s conduct is consistent with the letter and spirit of the User Agreement. BirthMail may terminate access to the BirthMail.com Service if a User’s conduct is found to be inconsistent with this User Agreement.
11. NO SPAM AND CONSENT TO DAMAGES
BirthMail.com will immediately terminate any account which it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited messaging activities. Activities such as sending spam or other unsolicited messages can cause harm to BirthMail (and our customer base) in numerous ways including, but not limited to, damaging the BirthMail brand name, damaging our reputation for delivering relevant messages, damaging our reputation for privacy, damaging our ability to attract and retain customers, and damaging other consumer, customer and business goals, activities, or relationships. Because these and other damages are often difficult to quantify, if actual damages cannot be reasonably calculated, then you agree to pay BirthMail liquidated damages of $3.50 (calculated as a fraction of reasonable customer acquisition costs for the Internet industry) for each piece of spam or unsolicited message transmitted from or otherwise connected with your phone number or account, otherwise you agree to pay BirthMail.com's actual damages, to the extent such actual damages can be reasonably calculated.
12. NO RESPONSIBILITY FOR CONTENT
As part of the BirthMail.com Service, BirthMail may offer users access to communications, media and commerce services. BirthMail.com does not guarantee the accuracy, integrity, quality or appropriateness of any messages, communications, information, data, text, music, sound, or other materials ("Content"), whether publicly posted or privately transmitted through the BirthMail.com Service. You acknowledge that the BirthMail.com Service simply acts as a passive conduit for the distribution and transmission of information. You acknowledge that BirthMail.com has no obligation to screen, preview, or monitor such Content. By using the BirthMail.com Service, you agree that it is solely YOUR RESPONSIBILITY to evaluate the accuracy, usefulness, completeness, or appropriateness of any Content that you send, receive, access, post, or otherwise transmit through the BirthMail.com Service, including Content that may be offensive, indecent or objectionable. Under no circumstances will BirthMail be liable in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content sent, accessed, posted or otherwise transmitted via the BirthMail.com Service.
13. DISCLOSURE
BirthMail.com may make identifiable information available to our employees and third parties with whom we contract. In addition, BirthMail.com may provide aggregate statistics, unique identifiers, demographic, and other anonymous information about our users to advertisers, Service Providers, and other third parties. You acknowledge and agree that BirthMail may make such uses of information you provide or BirthMail collects.
To prevent unauthorized access, maintain data accuracy, and ensure the use of information, BirthMail.com has put in place appropriate physical and electronic procedures to protect the information we collect online. However, we will not sell any information that is recorded, i.e., either auditory or data entered, by you. We safeguard the privacy of each and every member.
The BirthMail.com Affiliate Program will display pertinent contact information to those responsible for an affiliate's referral to BirthMail (this would be no more than 3 affiliates). Affiliates have the option of not having this information displayed.
While BirthMail.com is committed to protect your privacy, BirthMail.com does not guarantee that your private communications, contact information and other identifiable information will never be disclosed in ways not described in BirthMail.com's Privacy Statement. You acknowledge and agree that BirthMail.com may disclose any information or Content as described herein, or if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to: (a) comply with the legal process; (b) respond to claims of a violation of the rights of third parties; or (c) protect the rights, property, or safety of BirthMail.com, its users or the public. BirthMail.com does not accept any responsibility for accidental or inadvertent disclosure, unauthorized access or other disclosure as required by law or described herein.
As we continue to develop our business, we might sell or buy other companies or assets. In such transactions, customer information generally is one of the transferred business assets. Also, in the unlikely event that BirthMail, or substantially all of its assets are acquired, you consent to the transfer of your information as one of the transferred assets.
14. SERVICE PROVIDERS
The BirthMail.com Service may provide users with opportunities be transferred or linked to third party providers of products, services, advertisements or Content ("Service Providers") that may be accessible through and operate with the BirthMail.com Service. BirthMail.com does not endorse and is not responsible or liable for any Content, data, advertising, products or services available or unavailable from, or through, such Service Providers. You further agree that should you use or rely on such Content, data, advertisement, goods or services on, available or unavailable from, or through any such Service Provider. BirthMail.com is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or participation in promotions of Service Providers, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such Service Providers exclusively and do not involve BirthMail.com.
You agree that BirthMail.com is not responsible for the accessibility or unavailability of Service Providers or for your interaction and dealings with them.
15. LIABILITY DISCLAIMER
YOU AGREE THAT:
A. IF YOU USE THE BirthMail.com Service, YOU DO SO AT YOUR OWN AND SOLE RISK. THE BirthMail.com Service IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BirthMail EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
B. BirthMail.com DOES NOT WARRANT THAT (i) THE BirthMail.com Service WILL MEET YOUR REQUIREMENTS, (ii) THE BirthMail.com Service WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE BirthMail.com Service WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE BirthMail.com Service WILL MEET YOUR EXPECTATIONS, (v) ANY INFORMATION YOU PROVIDE OR BirthMail.com COLLECTS WILL NOT BE DISCLOSED, OR (vi) ANY ERRORS IN ANY DATA OR SOFTWARE WILL BE CORRECTED. YOU ARE ESPECIALLY ADVISED NOT TO USE OR RELY ON THE BirthMail.com Service AND INFORMATION OR ANY OTHER PROGRAM, INFORMATION OR SERVICE WHATSOEVER RELATED THERETO FOR "CONTENT SENSITIVE" OR "MISSION CRITICAL" APPLICATIONS AND USE. "CONTENT SENSITIVE" SHALL MEAN ANY INFORMATION OR DATA YOU DO NOT WISH TO BE ACCESSIBLE TO OTHER USERS. "MISSION CRITICAL" APPLICATIONS AND USE SHALL MEAN APPLICATIONS AND USE THAT MAY RESULT IN DAMAGE.
C. IF YOU ACCESS OR TRANSMIT ANY CONTENT THROUGH THE USE OF THE BirthMail.com Service, YOU DO SO AT YOUR OWN DISCRETION AND YOUR SOLE RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOU IN CONNECTION WITH SUCH ACTIONS.
D. NO DATA, INFORMATION OR ADVICE OBTAINED BY YOU IN ORAL OR WRITTEN FORM FROM BirthMail OR THROUGH OR FROM THE BirthMail.com Service SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
16. LIMITATION OF LIABILITY
YOU EXPRESSLY AGREE THAT BirthMail.com SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF BirthMail HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR INABILITY TO USE THE BirthMail.com Service; (ii) THE COST OF ANY SUBSTITUTE GOODS AND SERVICES PURCHASED TO REPLACE ANY GOODS OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF ANY INFORMATION OBTAINED FROM OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE BirthMail.com Service; (iii) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR INFORMATION OR MESSAGES; (iv) STATEMENTS OR CONDUCT OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY ON THE BirthMail.com Service; OR (v) ANY OTHER MATTER RELATING TO THE BirthMail.com Service.
17. INDEMNIFICATION
You agree to indemnify, defend and hold harmless BirthMail, its officers, directors, owners, employees, agents, other service providers, vendors or customers from and against all losses, liabilities, expenses, damages and costs, including reasonable attorneys' fees resulting from any violation of the User Agreement by you or any harm you may cause to anyone. You agree and we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
18. PROPRIETARY RIGHTS
You acknowledge and agree that the BirthMail.com Service and any necessary software used in connection with the BirthMail.com Service and Service Providers contain proprietary and confidential information that are protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the BirthMail.com Service or advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. You may not, and agree not to, modify, reformat, copy, display, distribute, transmit, publish, license, create derivative works from, transfer or sell any information, products or services obtained from the BirthMail.com Service, except as set forth herein. BirthMail, the BirthMail logo and other BirthMail logos, product and service names may be trademarks, service marks or other intellectual property of BirthMail (the " BirthMail Marks"). You agree not to display or use the BirthMail Marks in any manner without the prior permission of BirthMail.com.
19. NOTICE
You agree that BirthMail.com may communicate any notices to you, including notices of changes to the User Agreement, through email, regular mail or by posting of those notices on the BirthMail.org web site or through the BirthMail.com Service.
20. ENTIRE AGREEMENT
The User Agreement governs your use of the BirthMail.com Service and constitutes the entire agreement between you and BirthMail.com. It supersedes any prior agreements between you and BirthMail. Additional terms and conditions may apply when you use the services of Service Providers and others. These additional terms will not reduce, diminish, or eliminate any rights BirthMail possesses with respect to this User Agreement.
21. GOVERNING LAW AND ARBITRATION
The User Agreement and the relationship between you and BirthMail.com shall be governed by the laws of the State of Georgia without regard to its conflict of law provisions. 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 BirthMail.com Service or to the terms of this User Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. You agree to submit any dispute with BirthMail exclusively to final and binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The location of any arbitration shall be in the city of Atlanta, Georgia. You agree any arbitrator shall not have the authority to award punitive damages. You agree to be bound by any ruling in such arbitration proceeding and that such ruling shall be enforceable in any court of competent jurisdiction.
22. MISCELLANEOUS
Any failure by BirthMail.com to exercise any rights or enforce any of the terms of this User Agreement shall not constitute a waiver of such rights or terms. If any portion of the User Agreement is found by an arbitrator or a court of competent jurisdiction to be invalid, the arbitrator or court should nevertheless give effect to the parties' intentions expressed herein. All other provisions of the User Agreement remain in full force and effect.
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