General Terms & Conditions
General Terms & Conditions
Please read this agreement carefully, by signing up for and/or otherwise accessing any of the services or products offered by mail.com you agree to be bound by the terms of this Agreement. This agreement shall become come effective as of the date of (1) your electronic signature on or acceptance of this agreement, (2) the activation of your account or (3) your receipt of an e-mail from mail.com confirming your order, whichever happens first. EITHER YOU OR MAIL.COM MAY TERMINATE THIS AGREEMENT AT ANY TIME, AFTER WHICH ANY AND ALL E-MAILS OR DATA ASSOCIATED WITH YOUR ACCOUNT MAY BE DELETED. ANY AND ALL OUTSTANDING FEES SHALL BE DUE AND PAYABLE UPON TERMINATION, ALL AS MORE FULLY DESCRIBED IN SECTION 2. THESE TERMS & CONDITIONS SUPERSEDE ALL EARLIER VERSIONS AND REQUIRE THAT YOU SUBMIT TO THE LAW AND JURISDICTION OF THE COMMONWEALTH OF PENNSYLVANIA. IF YOU DO NOT AGREE TO THESE TERMS DO NOT USE THE MAIL.COM SERVICES.
For the purposes of this Agreement:
1.1. "mail.com” "us," "we," "our" and grammatical variants thereof shall collectively refer to 1&1 Mail & Media Inc. (formerly GMX Internet Services Inc.), a corporation organized and existing under the laws of the State of Delaware located at 701 Lee Road, Suite 300, Chesterbrook, PA, U.S.A. and its assigns and successors in interest.
1.2. "mail.com Equipment" shall mean computer and telecommunications device, Internet access and/or transmission rights owned, operated, and/or maintained by mail.com and/or mail.com's affiliates, agents, or assigns which function to provide the mail.com Services.
1.3. "mail.com Services" shall mean the products and services provided by mail.com at any given time, including but not limited to e-mail, file storage, and any associated support services, which mail.com Services may be changed, amended, cancelled and/or otherwise altered at any time in mail.com's sole discretion.
1.4. "mail.com Software" shall mean any software provided by mail.com at any given time, whether downloaded to your computer or utilized online as part of the mail.com Services. The mail.com Software includes the program and any and all copies or portions thereof, whether standing alone or in combination with other programs, as well as the documentation and other materials delivered in connection with the software, if any.
1.5 "Fee" shall mean monies and other consideration you are obligated to pay to mail.com for the right to use the mail.com Services and Bandwidth subject to the terms and conditions of this Agreement and of the particular mail.com Services for which you have registered, as outlined on the then-current schedule of fees. Fees are subject to change at any time without prior notice.
1.6. "Laws" shall mean the laws, statutes, and regulations then in effect of the United States of America and its various states and dependencies as well as the laws of your country of residence or the country in which you use or access the mail.com Services and the laws of any provinces, states or dependencies thereof.
1.7. "Parties" shall collectively refer to mail.com and you.
1.8. "Payment Account” shall refer to the credit card or such other account as is provided by you and accepted by mail.com upon registration to pay for your Services. mail.com may add, delete, or modify the methods by which customers can pay for the mail.com Services at any time without prior notice, in its sole discretion, at which point you must either update your account with a valid Payment Account or your account will be terminated. Payments processed by third party processors are subject to those processors’s terms and conditions of service, and mail.com makes no representations or warranties with respect to any third party payment services.
1.9 “Premium Services” shall refer to mail.com accounts for which payment of a Fee is required.
1.10. "Suspend" or "Suspension" shall include the disabling of your Account and/or the cessation of transmission of data via your Services.
1.11 “Term” shall be, for Premium Services only, one year or as otherwise stated in the specifications for your Services or for any renewal Term thereof.
1.12. "You", “you,” "your" and grammatical variants thereof shall mean you, any other entity which has an ownership or other beneficial interest in you, or any other entity in which you have an ownership or other beneficial interest.
1.13. "Your Data" and grammatical variants thereof shall mean any data, including but not limited to documents, e-mails, images, web pages, or other Content, related to your use of the mail.com Services or otherwise stored on or transmitted by the mail.com Equipment.
1.14. "Your Services" and grammatical variants thereof shall mean the specific mail.com Services for which you have contracted, subject to the limitations and specifications of the particular service effective as of the date of contract.
2. TERM AND TERMINATION.
2.1. You or mail.com may terminate this Agreement at any time for any reason, with or without cause. You may terminate by (a) providing written notice of termination to mail.com pursuant to this Agreement, or (b) closing your accounts for all of your Services via mail.com’s user interface, where mail.com has made this option available to you.
2.2. Notwithstanding the provisions of Section 2.1. to the contrary, the initial Term for Premium Services shall be one year or as otherwise stated in the specifications for your Services, at the end of which term this Agreement shall renew automatically for the same period unless terminated prior to renewal pursuant to this Agreement. mail.com may, but is not obligated to, allow you change the duration of the Term or the specific services for Premium Services at the beginning of any renewal period, and you agree that mail.com may debit your Payment Account for any resulting Fees.
2.3. Your termination of a Premium Services account shall be effective as of the end of the then-current Term and shall result in the account being downgraded to a free mail.com account. All other terminations, including a termination by mail.com with or without cause, shall be effective immediately.
2.4. You further agree that in the event that mail.com believes, in its sole discretion, that you have breached any provision(s) of this Agreement, including but not limited to Sections 3 or 7, mail.com may, without any liability to you and in addition to any other remedies, terminate or suspend any and all accounts registered by you or your access to your Services and your Data without prior notice to you. If your account is not a Premium Services account it may be suspended after twelve months of inactivity. If your account is suspended by mail.com for any reason whatsoever, your e-mail address will be retained for up to twelve months, after which it will be made available to another customer. If your account is suspended for non-payment of Fees, mail.com may but is not obligated to restore your Premium Services account for the remainder of the Term upon written notice to mail.com and payment in full of all Fees due and owing on the account, provided such notice is provided to mail.com within one year after the first day of the then-current Term (the “Notice Period”). Premium Services accounts not restored during the Notice Period will be terminated immediately upon the expiration of same.
2.5. Immediately upon termination of this Agreement all data, including but not limited to e-mails or other files associated with your Services, will be irrevocably deleted and all transmission of data will cease. mail.com may, in its sole discretion, make your Data information or content available to you to the extent it has not been deleted.
3.1. For Premium Services, all Fees must be paid in advance of the provision of services for the entire Term. Fees must be paid in United States Dollars via the Payment Account, and are nonrefundable (except as expressly permitted otherwise by this Agreement), including any Fees paid in advance for the term during which you terminate. You agree that mail.com may automatically debit the Fee and any additional fees from the Payment Account unless specifically provided otherwise. You also agree that mail.com may automatically debit your Payment Account, without further authorization from you, for any renewal term, additional services, and any fees or expenses applicable to your Services, including but not limited to fees for your use of services in excess of those included within your Services. If payment in full is not received by mail.com from the provider of your Payment Account or its agents, you agree to pay all amounts due from you for your Services without demand by mail.com. Termination of your account shall not relieve you of any obligation to pay any accrued fees or charges.
3.2. In addition, certain mail.com Services may be subject to set-up, service, or other fees, and by registering for such mail.com Services you authorize mail.com to debit your Payment Account for any and all such fees.
3.3. Your credit or debit card issuer, directly or through third-party service providers, may provide mail.com with updated credit card numbers, expiration dates, or other information which may be used to renew services or make payments under this Agreement. Should mail.com choose, in its sole discretion, to participate in such auto-update programs, you agree that mail.com may share your Payment Account information with such third-party providers and may update Your Payment Account with information provided through such services. You authorize any and all charges to your Payment Account using such updated information, whether or not you or mail.com have prior notice of same. Mail.com cannot guarantee that your Payment Account will be updated, and you acknowledge and agree that it is your responsibility to keep your payment information current and up-to-date at all times and that you shall be liable to mail.com for your failure to do so, including for any charges that mail.com may incur as a result of your failure to keep your payment information current. mail.com shall have no liability for declined payments or incomplete or out-of-date Payment Account information.
3.4. mail.com may offer promotional rates or special offers, the terms of which may or may not be more favorable than the terms and conditions for your Services. Any such promotions or modifications shall not affect your obligations under this Agreement. Promotional fees may be subject to additional terms and conditions which, to the extent they conflict with the terms of this Agreement, shall govern. Promotional fees and special offers may not be combined.
3.5. Certain special offers for Premium Services may include a free introductory period. Unless you terminate your account prior the the expiration of such introductory period you agree that you will be liable for and mail.com may automatically debit your Payment Account for the Fees for the Premium Services associated with that account. mail.com reserves the right at any time to withhold, modify, or discontinue, temporarily or permanently, such introductory or promotional offers, with or without notice.
3.6. Changes to your Services, including downgrades by you or termination of your Premium Services, may result in loss of your Data, features, or a reduction in the amount of available capacity for your Data provided by the mail.com Services. The amount charged to your Payment Account on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades.
3.7. You shall pay all costs of collection, including reasonable attorney's fees and costs, in the event any invoice requires collection efforts as determined in mail.com’s sole discretion. Except where prohibited by Law, all accounts referred to a collection agency shall be subject to an additional fee, which must be paid in full before the account is reactivated.
3.8. International Customers bear the risk of currency fluctuations and any fees or taxes associated with the conversion of foreign currencies into United States Dollars. Certain mail.com Services will not be available to International Customers until mail.com is able to receive satisfactory confirmation from such customer’s Payment Account provider, in mail.com’s sole discretion, that the funds will be available for debit from the International Customer’s account. Orders from International Customers will not be accepted unless the country provided in the contact information matches that on file for the Payment Account.
3.9. You agree that mail.com may start the provision of services immediately, and that you will not be entitled to cancellation or a “cooling off” period except to the extent a waiver of those rights is prohibited by law.
3.10. If your mail.com Services are free, you may still incur expenses for internet access or data transmission from third-party service providers not affiliated with mail.com.
Subject to and conditioned upon mail.com's retained rights and all other terms and conditions set forth in this Agreement, mail.com offers the mail.com Services as soon as practicable after registration. You will receive a password, account and instructions upon completion of the registration process. You are responsible for maintaining the confidentiality of both your password and your account and are fully responsible for all activities that occur under your password and your account. You agree to immediately notify mail.com of any unauthorized uses of the account or any other breaches of security. mail.com cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will mail.com be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. The mail.com Services are subject to the following conditions and restrictions:
4.1.1. mail.com shall provide to you a non-transferable, revocable, non-sublicensable, non-exclusive and limited license to use the amount of server space allocated to your Services for your non-exclusive use for the exclusive purpose of storing your Data and disseminating said data via the Internet through the use of mail.com's Equipment for purposes consistent with this Agreement.
4.1.2. mail.com, either directly or through its assignee or licensee, shall provide such support as is outlined in the specifications for your Services or as otherwise shown on the mail.com website. mail.com is not obligated to provide any customer service or technical support except as specified in this Section 4, and cannot guarantee that your questions will be answered in a timely fashion or otherwise. Notwithstanding the foregoing, mail.com at its sole discretion may at any time alter or cease providing the support provided pursuant to this Agreement without any liability to mail.com.
4.1.3. All use of the mail.com Services shall be subject to all terms and conditions set forth herein. You may not attempt to expand or alter these rights or mail.com's services by entering into multiple agreements.
4.1.4. Your use of the mail.com Services, including but not limited to e-mail traffic, and combined mailbox use and file storage per account shall not exceed that specified for your Services. You are responsible for monitoring your use of the mail.com Services, and agree to check your e-mail and download or delete your e-mail on a regular basis in order to ensure compliance with this paragraph. Should your use of the mail.com Services exceed the limits specified for your Services mail.com may return or reject any and all e-mails sent to you to the originating sender and delete or deny access to the storage space for your Data without liability to you. You agree that mail.com may terminate your Account without notice or liability to you for usage in excess of permitted amounts.
4.1.5. mail.com reserves the right to alter, amend, or discontinue the provision of some or all of the mail.com Services, including but not limited to the provision of certain mail.com Services to International Customers in a particular market, at any time in mail.com's sole discretion.
4.1.6. You are responsible for backing up your Data on your own computer. mail.com does not warrant or otherwise guarantee that it will back up your Data or that data which has been backed up can be retrieved, and will not be responsible for any archiving or backup of your Data. If any of your Data is damaged, deleted, lost or corrupted in any way, or becomes otherwise unavailable, whether due to termination or suspension of your account pursuant to this Agreement or otherwise, mail.com will have no obligation or liability to you.
4.1.7. You represent and warrant that your e-mail address does not infringe the copyright, trademark, or any other intellectual property rights of any person or company and that your e-mail address is otherwise in compliance with the terms of this agreement, in particular the provisions of Section 8.
4.1.8. mail.com reserves the right to terminate your e-mail address in the event that mail.com's rights to use certain domain names or e-mail addresses terminate or expire.
4.2.1. mail.com may, in its sole discretion, provide you with mail.com Software in combination with your Services. If you receive software from mail.com under this Agreement and you are presented with a license agreement, the terms of that agreement apply. Otherwise, upon payment of all fees due and owing to mail.com under this Agreement, mail.com hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the mail.com Software and all related documentation for your own personal or business use during the term of this Agreement. Any rights not expressly granted herein shall be reserved for mail.com. Source code or other information pertaining to the logic design of the mail.com Software is specifically excluded from the license granted hereunder.
4.2.2. mail.com reserves the right to charge for the mail.com Software or any upgrades therefor at any time.
4.2.3. You recognize that the mail.com Software and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of the mail.com Software at your home or office, are proprietary, and that all rights thereto, including copyright, are owned by mail.com or, if sublicensed by mail.com, by the respective owners of the Software. You further acknowledge that you have been advised that the mail.com Software, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of mail.com, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to mail.com, and that its use and disclosure must be carefully and continuously controlled.
4.2.4. mail.com or, if sublicensed by mail.com, the respective owners of the mail.com Software shall at all times retain title to all the mail.com Software and all related information, including all updates, improvements, modifications and enhancements, furnished to you hereunder.
4.2.5. Unless provided otherwise in the specifications for your Services, the mail.com Software supplied hereunder is for the your personal or business use. The mail.com Software is to be used only for the purposes specified in this Agreement and specifically as restricted in the following three subparagraphs of this Section 4.
126.96.36.199 You will not: (i) reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the mail.com Software, whether such mail.com Software is in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for your use pursuant to this Agreement, nor; (ii) provide or make the mail.com Software available to any person or entity other than your employees or agents who have a need to know consistent with your use thereof under this Agreement, nor; (iii) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement, nor; (iv) copy for your own use or the use of others operator manuals, system reference guides, training materials and other user-oriented materials without the prior written consent of mail.com. In order to protect mail.com's trade secrets and copyrights in the mail.com Software, you agree to reproduce and incorporate mail.com's trade secrets or copyright notice in any copies, modifications or partial copies.
188.8.131.52 You agree to notify mail.com forthwith if you obtain information as to any unauthorized possession, use or disclosure of any mail.com Software by any person or entity, and further agree to cooperate with mail.com at mail.com's expense, in protecting mail.com's proprietary rights.
184.108.40.206 Unless agreed otherwise in writing by mail.com, the mail.com Software may be used only on a single computer or workstation. mail.com software designed for use on portable workstations may be installed on both a portable and a stationary computer but may not be used on both simultaneously. You may not install the mail.com Software on a network except to facilitate permissible installation of the mail.com Software on computers attached to the network. You warrant and guarantee that all users of the Software shall be aware of and comply with the terms of this license.
4.2.6. Certain mail.com Software is provided for online use as part of the mail.com Services (the "mail.com Online Software"). The mail.com Online Software is hosted software which runs directly on mail.com's servers, and you may not download, install, store or make any copies of the mail.com Online Software, nor may you sublicense the mail.com Online Software. You agree not in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the mail.com Online Software or any copies thereof and not to assist any third party in doing so. The mail.com Online Software is designed to be used through the mail.com user interface and, as such, may be utilized by any authorized user from any computer or workstation. This license is automatically revoked upon termination of this Agreement. mail.com reserves the right to modify or discontinue the mail.com Online Software at any time without notice.
4.2.7. mail.com may provide its customers with the ability to download certain third-party software (the "Third Party Software"). The license conditions governing the use of the Third Party Software may differ from mail.com's own software licenses. Customers of mail.com are bound by the conditions of all licenses pertaining to such Third Party Software and should make themselves familiar with their terms and conditions. THE PROVISION AND OFFERING OF SUCH THIRD PARTY SOFTWARE BY MAIL.COM DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN MAIL.COM MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH THIRD PARTY SOFTWARE.
4.2.8. In the event of termination of this Agreement, or upon any act which shall give rise to mail.com's right to terminate, or upon the expiration of the license for mail.com Software which is subject to a limited-duration license, any and all licenses granted under this Section 4.2 shall terminate automatically, and you will remove, erase or destroy the mail.com Software and documentation and all copies thereof, wherever located, without demand or notice.
4.2.9. mail.com may stop providing the Software or any updates thereto, including but not limited to the Third-Party Software, at any time without notice or any further liability to you.
4.2.10. Certain Software (including Third-Party Software) may not be available to International Customers.
5. NO EXPRESS OR IMPLIED AGREEMENT TO DISSEMINATE MATERIALS WHICH ARE INCONSISTENT WITH YOUR WARRANTIES.
Receipt by mail.com of data for storage and/or transmission via mail.com's Equipment which are inconsistent with your warranties set forth in Section 8 herein shall not constitute an agreement by mail.com to allow the mail.com Services or the mail.com Equipment to be used to disseminate such information or data in whole or in part, by any means, or if once disseminated via the use of mail.com's Services or Equipment, to continue to disseminate such data.
6. NO WARRANTIES BY MAIL.COM.
THE MAIL.COM SERVICES AND MAIL.COM SOFTWARE ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE MAIL.COM SERVICES IS AT YOUR SOLE RISK. MAIL.COM DOES NOT WARRANT THAT THE MAIL.COM SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES MAIL.COM MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE MAIL.COM SERVICES. NO WARRANTY IS MADE BY MAIL.COM REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND MAIL.COM HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF SERVICES OR GOODS PROVIDED TO YOU HEREUNDER; AND (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MAIL.COM DOES NOT GUARANTEE THAT ANY CONTENT, INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE THROUGH THE MAIL.COM SERVICES WILL BE FREE OF VIRUSES, "WORMS", "TROJAN HORSES", OR OTHER HARMFUL COMPONENTS.
7. MAIL.COM'S LIMITED LIABILITY.
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL MAIL.COM, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE MAIL.COM SERVICES. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, MAIL.COM'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, MAIL.COM DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE MAIL.COM SERVICES, AND MAIL.COM WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE MAIL.COM FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF MAIL.COM FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL SERVICE FEES PAID BY YOU TO MAIL.COM IN THE SIX MONTHS PRECEDING SUCH ALLEGED BREACH, IF ANY.
8. YOUR ADDITIONAL OBLIGATIONS AND WARRANTIES.
8.1 You acknowledge that only you may use your account and you agree and warrant that you shall not permit anyone else to use your account or authorize any third party to access your account on your behalf. You are responsible for all activity that takes place with respect to your account, and you agree that in the event mail.com believes or has reason to believe, in its sole discretion, that you have breached this Agreement or any of the warranties in this Section 8, mail.com may, without prior notice to you and in mail.com's sole and exclusive discretion, suspend the provision of the mail.com Services and/or terminate this Agreement, without any liability of any kind. As more completely set forth in Sections 6, 7 and 10, you waive any and all claims you may have, now and forever, against mail.com relating to any action taken in under this Section 8.1, and agree to indemnify and hold harmless mail.com from and against any claims brought by third parties as a result of your Data or your use of the mail.com Services.
8.2. You agree and warrant that you shall not send mass unsolicited or unwanted electronic mail solicitations; that you shall not use your e-mail address for impermissible or abusive news group postings or excessive or repeated off-topic or commercial postings; that you will not send any form of junk mail; and that you shall not engage in any other form of spamming, spoofing, phishing, or mail bombing. mail.com reserves the right to block mail from any source, including outgoing mail from or ingoing mail to your Account, which mail.com believes, in its sole discretion, is being used to send such unsolicited e-mail. While mail.com continues to actively review and implement new technology to ensure that its customers neither send nor receive unsolicited e-mail, there is no currently available technology that will totally prevent the sending and receiving of unsolicited e-mail.
8.3. You agree and warrant that your use of the mail.com Services and mail.com Equipment, and all sales, distributions, advertisement, or promotion which are in any way associated with your use of the mail.com Services or mail.com Equipment, shall at all times comply with your warranties under this Section 8 as well as all relevant laws, including but not limited to CAN-SPAM.
8.4. You agree and warrant that your Data shall be transmitted exclusively to consenting adults and only to places in which such materials comply with contemporary community standards.
8.5. You agree and warrant that your Data shall not violate any Laws concerning obscenity and shall not contain or link to any pornography or other content deemed objectionable by mail.com, in its sole discretion.
8.6. You agree and warrant that you will not use the mail.com Services to transmit messages which: display, contain or link to any harmful matter or indecent materials or communications which are available to, or accessible by, minors; display or contain any material that consists of pornography, child pornography, or other obscene content, including but not limited to content involving or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age or which could otherwise result in harm to minors, all as determined in mail.com’s sole discretion.
8.7. You agree and warrant that you shall not damage, disable, overburden, or impair the mail.com Services; interfere with anyone else’s use or enjoyment of the mail.com Services; or interfere with, defame, or abuse mail.com or its officers, employees, or agents.
8.8. You affirmatively represent, agree and warrant that your Data and the use or distribution of your Data does not infringe the intellectual property rights of others, including, but not limited to, copyrights, trademark and service mark rights, patent rights and rights of publicity, both in the United States and throughout the world.
8.9. You agree and warrant that your Data shall not constitute or contain or link to material: which is libelous, slanderous, or defamatory; which violates the right of publicity or privacy of any party; or which will violate or infringe upon or will otherwise give rise to any adverse claim with respect to any common law or other right of any person or other entity, including, without limitation, privacy rights and all other personal and proprietary rights.
8.10. You agree and warrant that your Data shall not contain or link to any material which is offensive, harmful, violent, threatening, abusive or hateful, in mail.com’s sole discretion.
8.11. You agree and warrant that any and all material(s) of every kind which you store or transmit using mail.com Services or mail.com Equipment shall at all times be free from any and all damaging software defects, including, but not limited to, software "viruses", "worms", "Trojan Horses," and other source code anomalies, which may cause software or hardware disruption or failure, reduced computer operating speed, or compromise any security system. You agree that you will not attempt to access the mail.com Equipment or web site or another person's web site without authorization, or use the mail.com Services to carry out, or assist in the carrying out of, any "denial of service" attacks on any other website or internet service.
8.12. You agree and warrant that you shall not engage in any false, deceptive or fraudulent activities in association with your use of the mail.com Services or mail.com Equipment.
8.13. You agree and warrant that you shall not resell or redistribute the mail.com Services or any part thereof, including but not limited to your mail.com e-mail address, or use any unauthorized means to modify or reroute the mail.com Services (or to attempt same).
8.14. You agree and warrant that all applicable taxes have been paid or will be paid in full by you when due regarding all businesses and employees associated with your use of the mail.com Services and that no taxing authorities shall have any claim against mail.com or any persons affiliated therewith for the payment of such taxes.
8.15. You represent and warrant that you are over thirteen years of age and are fully competent to enter into this Agreement.
8.16. You represent and warrant that you are not a national or resident of Burma/Myanmar, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, and Syria or any other country subject to U.S. Treasury Department embargo restrictions, and that you are not listed in the "Entity List" or "Denied Persons List" maintained by the US Department of Commerce or the list of "Specially Designated Nationals and Blocked Persons" maintained by the US Department of Treasury. You further acknowledge that you are not a national or resident of a country whose name is otherwise omitted from the registration form for mail.com Services. Residents of countries which are serviced by a mail.com affiliate are required to contract with those mail.com affiliates, and you represent and warrant that you are not a resident of one of those countries.
8.17. You agree to abide by United States and other applicable export control laws and you further agree not to upload to your mail.com account any data or software that cannot be exported without prior written government authorization.
8.18. You agree not to use your Account for the storage of files other than in the course of normal e-mail usage or as provided otherwise in the specifications for your Services.
9. CONFIDENTIALITY, TRADEMARK, AND COPYRIGHT
9.1 “mail.com” is a service mark of 1&1 Mail & Media Inc., all rights reserved. The trademarks, logos, and service marks displayed on this web site (collectively, the "Marks") belong mail.com and/or its affiliates or third parties which have licensed those rights to mail.com ("Partners"); mail.com and Partners retain all rights to the Marks and nothing in this Agreement grants you or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce, or display any Marks without their owner's prior written consent. All other trademarks, product names, and company names and logos appearing on mail.com's web site are the property of their respective owners.
9.2 Unless expressly stated otherwise on the mail.com web site, you should assume that all content, images, and materials appearing on this web site (collectively the "mail.com Content") are the sole property of mail.com. Both U.S. and international copyright and other intellectual property laws and treaties protect such mail.com Content. You may not use, reproduce, display, or sell any mail.com Content without mail.com's prior written consent. You may not link to any page or frame any portion of mail.com’s website in such a way as to remove, cover, alter, or obscure mail.com’s trademarks or as would otherwise confuse viewers as to the origin of the content.
10. YOUR INDEMNIFICATION OF MAIL.COM.
You agree that you shall fully defend and indemnify mail.com, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys' fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 8 or your violation of a third party's intellectual property rights. You further agree to defend, indemnify and hold harmless mail.com, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys' fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that mail.com shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
11. NO JOINT VENTURE OR PARTNERSHIP
Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between mail.com and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between mail.com and you. mail.com shall have no control or ownership interests of any kind in your business. mail.com shall have no direct financial or other interest in, nor in any way "own" any online venture pertaining to your use of the mail.com Services or mail.com's Equipment. mail.com's relationship to you shall be restricted to matters pertaining to the provision of the mail.com Services as set forth in this agreement.
12. SERVICES RENDERED ON A NON-EXCLUSIVE BASIS.
Any and all services which are or may be provided to you by mail.com pursuant to this Agreement, including the licensure of rights herein, are not exclusive and nothing in this Agreement shall limit or restrict mail.com from providing similar services and granting similar licenses to third parties regardless of whether such third parties are competitors of you. Nothing in this Agreement shall limit or restrict mail.com from engaging in any activities similar to yours or in competition with you.
13. NO EDITORIAL CONTROL BY MAIL.COM.
mail.com and you agree that, consistent with the strict policy of mail.com, and in reliance on your express warranties regarding the substantive content of data, advertisements, communications, messages and other materials which you shall store and/or otherwise disseminate via the use of mail.com's Services or Equipment, mail.com shall neither have nor exert any editorial or other subjective control over the substantive content of such data, advertisements, communications, message or other materials. mail.com exercises no control over information which is found on the internet, except for its own web site, and cannot be held responsible for the accuracy, correctness, or legality of such information. You are solely responsible for verifying the accuracy and suitability of information and services you obtain from third parties via the internet.
14.1.1. comply with legal process or other legal requirements;
14.1.2. protect and defend the rights or property of mail.com or its officers, agents, affiliates, licensees, and customers; or
14.1.3. carry out its obligations under or enforce this Agreement; or
14.1.4. investigate violations of this Agreement or assist with criminal or civil investigations.
14.2. INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT MAIL.COM MAY DISCLOSE PERSONAL INFORMATION ABOUT THEM AND THEIR ACCOUNT PURSUANT TO THIS SECTION, AND WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER NATIONAL AND INTERNATIONAL LAW.
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
16. NON-ENFORCEMENT DOES NOT CONSTITUTE WAIVER.
Failure of mail.com at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of mail.com.
17.1. mail.com may provide notice to you via e-mail sent to the e-mail address associated with your Account at the time such notice is sent. Such notice is deemed effective at the date and time of transmission, whether you receive it or not, and shall be deemed written notice for the purposes of this Agreement.
17.2. You may provide notice to mail.com by personal delivery; by addressing the notice as indicated above and depositing the same by registered or certified mail, postage prepaid, in the United States mail; or by Federal Express or other nationally-recognized courier. Such notice, statement or other document so delivered to mail.com, except as this Agreement expressly provides otherwise, shall be conclusively deemed to have been given when first personally delivered, on the date of delivery or on the first date of receipt. Notice may not be sent to mail.com via e-mail.
18. FORCE MAJEURE.
18.1. In the event of "force majeure" (as defined below), mail.com may terminate this Agreement without liability to you. For purposes of the Agreement, "force majeure" shall mean circumstances or occurrences beyond mail.com's reasonable control, whether or not foreseeable at the time of entering into the Agreement, in consequence of which mail.com cannot reasonably be required to perform its obligations hereunder or otherwise perform its obligations under the Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics, governmental regulations and/or similar acts, embargoes, termination or temporary unavailability of any computer hardware or software, server, or network on which the mail.com Services are located or maintained or through which the mail.com Services are provided, and nonavailability of any permits, licenses and/or authorizations required by governmental authority.
18.2. mail.com reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the mail.com Services (or any part thereof) with or without notice, including the right to cease all business operations in the United States or elsewhere. You agree that mail.com shall not be liable to you or to any third party for any modification, suspension or discontinuance of the mail.com Services.
19. NO ASSIGNMENT BY YOU; ASSIGNMENT BY MAIL.COM.
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without mail.com's prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. mail.com may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion, without consent by or notice to you.
20. JURISDICTION, VENUE, AND WAIVER OF JURY TRIAL.
20.1. YOU AGREE TO NEGOTIATE WITH MAIL.COM IN GOOD FAITH TO RESOLVE OR SETTLE ANY CLAIM OR DISPUTE IN ANY WAY RELATING TO OR CONCERNING THIS AGREEMENT.
20.2. ANY AND ALL DISPUTES WHICH ARE NOT FIRST RESOLVED INFORMALLY MUST BE BROUGHT IN EITHER THE COURTOF COMMON PLEAS OF OF CHESTER COUNTY, PENNSYLVANIA OR THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT AND/OR YOUR ACCOUNT(S) WITH MAIL.COM. You and we irrevocably consent to personal jurisdiction and venue in such courts and you waive any challenge which you have or which may hereafter arise to personal jurisdiction or venue in such courts. You further agree that mail.com shall be entitled to collect its attorneys' fees, costs and other expenses in the event that mail.com acts to enforce this forum selection clause, regardless of whether mail.com prevails in the underlying action.
20.3. In addition to the foregoing, YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND MAIL.COM THAT IS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT AND/OR YOUR ACCOUNT(S) WITH MAIL.COM, and that such waiver shall be enforceable up to and including the day that trial is to start. Should any legal fees, costs, or other expenses be incurred by mail.com with regard to enforcement of this jury waiver provision, mail.com shall be entitled to recover such legal fees, costs, or other expenses without regard to whether mail.com prevails in the underlying case.
20.4. Neither you nor mail.com may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals' disputes be consolidated or otherwise determined in one proceeding. YOU AND MAIL.COM ACKNOWLEDGE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION
20.5. This Agreement shall be interpreted according to the laws of the Commonwealth of Pennsylvania in the United States of America, and, where applicable, the federal law of the United States of America, without regard to conflicts of law principles.
21. SUCCESSORS AND ASSIGNS.
This agreement shall be binding upon and inure to the benefit of the Parties' respective heirs, personal representatives, executors, administrators, successors and assigns.
22. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of mail.com has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and you hereby acknowledge and agree that you have not executed this Agreement in reliance upon any such representation or promise. This Agreement is solely for the benefit of you and mail.com.
23.1. This Agreement may be materially altered by mail.com by posting the new version of the Agreement at www.mail.com and if posted in this manner, shall be effective immediately upon posting such notice. You accept and shall be bound by such changed terms unless you opt to terminate the Agreement within thirty days of the posting of notice of such change.
23.2. You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of mail.com. No additional or conflicting term in any other document used by you will have any legal effect.
24. STATUTE OF LIMITATIONS.
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 Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
SUBPOENA AND INTELLECTUAL PROPERTY POLICY
1&1 Mail & Media Inc. is headquartered in Chesterbrook, PA. Correspondence sent by mail, courier, or personal service should be to the following address:
1&1 Mail & Media Inc.
c/o Legal Compliance
701 Lee Road, Suite 300
Chesterbrook, PA 19087
Facsimile : 610-560-1505
mail.com's terms and conditions prohibit the disclosure of customer information without the customer's express written consent except as required to comply with a current judicial proceeding, a court order, subpoena or other legal process properly served on mail.com or as otherwise permitted by mail.com’s General Terms and Conditions, in mail.com’s sole discretion. mail.com reserves the right to request additional information, including but not limited to a copy of complaints or other pleadings, in order to verify that the mail.com customer information is relevant to the records requested.
mail.com reserves the right to notify its customer prior to responding to a civil subpoena, and to delay compliance for up to ten days in order to allow its customer to move to quash the subpoena, except in an emergency or where otherwise required by law.
mail.com may, in its sole discretion or as otherwise required by law, accept service by facsimile or e-mail. As a general rule, mail.com will not accept service of civil subpoenas by facsimile or e-mail. In the appropriate cases, mail.com will produce information in response to criminal subpoenas in response to faxed or e-mailed subpoenas. Use the contact information below for correspondence sent by facsimile or e-mail.
Costs of Compliance
mail.com reserves the right to comply with subpoenas only upon payment of its expenses, as follows:
Other costs: as billed
Compact Disks $10.00/CD
mail.com Internet Services Inc. (“mail.com”) respects the intellectual property of others. If you think mail.com or one of its customers is violating your copyrights, please send proper notice to mail.com Legal Compliance using the contact information listed above as contemplated by the Digital Millennium Copyright Act (“DMCA”).
Pursuant to the DMCA, notices of copyright infringement must contain the following elements:
1.A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2.Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that location;
3.subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
4.Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5.A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6.A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
mail.com may require that non-compliant DMCA notices be resubmitted with the complete information listed above.
If you are a mail.com customer and have received a DMCA notice, you may send counter-notice to mail.com to the above-listed address and contact information. Such counter-notice must contain the following information:
1.Your electronic signature;
2.Identification of the material that was removed in response to the notice or to which access was disabled and the location at which the material appeared before it was removed or access to it was disabled;
3.A statement under penalty of perjury that the you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4.Your name, address, and telephone number, and a statement that the you consent to the jurisdiction of the Federal District Court for the Eastern District of Pennsylvania, and that you will accept service of process from the Complaining Party or an agent of such Party.
Upon receipt of a proper counter notification, mail.com will provide the complaining party with a copy of the counter-notice, and inform that party that mail.com may replace the removed material or cease disabling access to it in ten business days. mail.com may replace the removed material and cease disabling access to it in not less than ten, and not more than fourteen business days following receipt of the counter notice unless mail.com receives notice that the complaining party has filed an action seeking a court order to restrain the mail.com customer from engaging in infringing activity relating to the material on mail.com's system. Counter notifications which do not contain all of the information outlined above may not be sufficient to permit mail.com to restore access to the customer’s files. mail.com may, in its sole discretion, suspend or terminate customer accounts which it believes infringe the rights of third parties, but is under no legal obligation to do so.
Associated Press text, photo, graphic, audio and/or video material shall not be published, broadcast, rewritten for broadcast or publication or redistributed directly or indirectly in any medium. Neither these AP materials nor any portion thereof may be stored in a computer except for personal and non-commercial use. Users may not download or reproduce a substantial portion of the AP material found on this web site. AP will not be held liable for any delays, inaccuracies, errors or omissions therefrom or in the transmission or delivery of all or any part thereof or for any damages arising from any of the foregoing.
Notice of trademark violations on a servers operated by mail.com should be sent to Legal Compliance using the contact information listed above. Please provide the following information for any trademark claims:
1.The trademark or service mark which has allegedly been infringed along with the date of first use and the products or services associated with the mark;
2.The mark which you claim is infringing your mark along with a precise location or other information as to the specific file server which is believed to infringe your mark and the products or services associated with that mark; and
3.A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is the owner of the mark or is otherwise authorized to act on behalf of the owner of the mark that is allegedly infringed, and that the use of the mark is not defensible.
mail.com will investigate and forward credible claims of trademark infringement to its customer. mail.com may, in its sole discretion, suspend or terminate customer accounts which it believes infringe the rights of third parties, but is under no legal obligation to do so.
THE DMCA DOES NOT APPLY TO TRADEMARK DISPUTES.
© 1&1 Mail and Media Inc., 2012, All rights reserved
Version: Jan 16, 2012