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Terms of Service
Service
1.1. By completing the enrollment process to become a subscriber of the Service or by using the Service or any software provided by GOOMA.COM ("Software") other than to read this Agreement, you agree to accept the terms of the Agreement (including the Guidelines and the Privacy Statement) as if you had signed it. GOOMA.COM may change this Agreement at any time; such changes will be effective immediately upon transmission of notice by e-mail, postal mail, or any other means. Each time you use the Service reaffirms your acceptance of the then-current Agreement. If you do not wish to be bound by this Agreement, you may discontinue using the Service and the Software and immediately terminate your account as set forth below.
1.2. Please refer to your initial signup communications for specific information with respect to your service level. GOOMA.COM may discontinue or alter any service level or aspect of the Service at any time, without notice, without liability and in GOOMA.COMs sole discretion.
Your Obligations
2.1. You agree to provide GOOMA.COM with accurate, current and complete information, to the extent required by GOOMA.COM for your registration as a subscriber of the Service or at any time thereafter, and to maintain and to update this information as required to keep it accurate, current and complete. You agree in your enrollment and in your use of the Service not to impersonate any other person or entity, and you represent that you are either 13 years of age or older, or have obtained consent to use the Service from your parent or guardian.
2.2. You are responsible and liable for any activity by any person who uses your account with the Service. Other users of your account will be bound by this Agreement as if they were you. You are responsible for maintaining the confidentiality of your password and for any liability resulting from disclosure of your password. You agree that, upon becoming aware that your password or account is (or possibly is) being used without authorization, you will immediately change your password and notify GOOMA.COM by sending e-mail to abuse@GOOMA.COM.com.
2.3 . You are responsible for obtaining and maintaining the equipment and telephone services necessary to access and use the Service and for any telephone charges associated with connecting to and using the Service, including without limitation any telephone charges associated with the transmission to or from your computer of any information sent by or on behalf of GOOMA.COM, including without limitation information of the types specified in Section
2.4 below. Depending on the access numbers you select, your location and your calling plan, connecting to the access number(s) you select may cause you to incur long distance charges on your telephone bill. To find out whether you will incur any charges and, if so, the amounts of such charges, please contact your local telephone company. GOOMA.COM will not be responsible for any such charges incurred.
2.4. You agree that GOOMA.COM may establish general practices and limits concerning use of the Service. These may include, among others, the maximum number of days that unread e-mail messages will be retained by the Service, the maximum number of e-mail messages that may be sent from or received by an account on the Service, the maximum size of any e-mail message that may be sent from or received by an account on the Service, the maximum disk space that will be allocated on GOOMA.COMs servers on a subscriber's behalf, and the maximum number of times (and the maximum duration for which) a subscriber may access the Service in a given period of time. You acknowledge that GOOMA.COM may implement prioritization practices in connection with accessing the Service and that your ability to establish and maintain a connection to the Service may be limited, in connection with such practices or otherwise. You acknowledge that any limits GOOMA.COM establishes may differ for different portions of the Service, and in particular may be set at different levels for subscribers based on factors determined in GOOMA.COMs sole discretion, which may or may not include, among others, a subscriber's chosen service level, specific usage patterns, geographic location, the particular telecommunications carrier through which a connection to the Service is attempted or established, You also acknowledge that GOOMA.COM reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Content
3.1. You acknowledge that information, communications, photographs, video, graphics, software, music, sounds and other materials may be accessible to you through your use of the Service. You acknowledge that, as a matter of policy, GOOMA.COM does not pre-screen such materials, but that GOOMA.COM has the right (but not the obligation) to remove from its computer servers materials (including, without limitation, materials created, posted, uploaded or transmitted by you) that GOOMA.COM, in its sole discretion, determines to be in violation of the Guidelines. You further acknowledge, however, that GOOMA.COM does not have the capability to monitor, review, restrict, edit or remove materials made available by third parties on the Internet, and you agree that you must evaluate, and bear all risks associated with, the use of any materials, including any reliance on the accuracy, completeness, or usefulness of such materials. The fact that GOOMA.COM provides a link to a particular Web page is not an indication that we endorse that site's policies or the content or products available from that particular site.
3.2. You acknowledge that materials available through the Service may be protected by copyright, trademarks, and other intellectual property rights. You agree that your use of such materials is governed by all applicable laws and regulations, and by any further restrictions placed on such materials by their owners or licensors.
3.3. You acknowledge that the Service may provide certain public areas (e.g. message boards, newsgroups, forums, and public mailing lists), and that GOOMA.COM is a distributor (and not a publisher) of information disseminated by persons using the Service. By posting, uploading or transmitting material to any such area, you are requesting GOOMA.COM and/or its partners to make such material available to others, and you are acknowledging that placing such material in a public area will result in copies of such material being transmitted to others. By posting, uploading or transmitting material to any public area, you (i) grant to GOOMA.COM and/or its partners a worldwide, royalty-free, perpetual, irrevocable, non-exclusive license (including the waiver of any moral rights) to use, reproduce, modify, adapt, publish, distribute, display, and create derivative works from, such material (in whole or in part) and to incorporate it into other works in any form, media or technology (whether now known or later developed) and (ii) warrant that the owner of any rights in the material, including intellectual property and moral rights, has waived such rights and has given you the right to grant the license described above.
Fees
4.1. As a subscriber of the Service you are solely responsible for any charges to your account and any activities conducted through your account. By using a credit card or other payment method to pay for any billable portions of the Service, you expressly authorize GOOMA.COM or its agents to charge all fees and other charges incurred in connection with your service to the credit card or other payment method you have designated, and such authorization will remain valid unless revoked by you pursuant to Section 6.2. If you use a credit card and GOOMA.COM does not receive payment from the card issuer or its agents, you agree to pay all amounts due upon demand by GOOMA.COM. Fees are non-refundable, except as otherwise provided in this Agreement.
4.2. You may change your designated payment method by contacting GOOMA.COM in the manner specified for that purpose on GOOMA.COMs Web site or by calling the GOOMA.COM customer service number (which is 623-581-0842 as of the date of this Agreement). GOOMA.COM reserves the right to accept other forms of payment or to modify the forms of payment it will accept. If GOOMA.COM elects to authorize alternative or additional methods of payment, your designation of such a method of payment will be deemed to be an authorization to GOOMA.COM to bill you, in a manner appropriate to your designated payment method, for all fees and other charges incurred in connection with your service.
4.3. If GOOMA.COM does not receive the amount of your account balance within 30 days of the applicable invoice date, an additional 1.5% (or the highest amount permissible by law, if less) per month of the amount outstanding may be added to your invoice as a late charge. You will be liable for all attorney and collection fees arising out of GOOMA.COMs efforts to collect any unpaid balance of your account. If you believe that a billing discrepancy has occurred, you must notify GOOMA.COM within 90 days after the date of the relevant account statement from your credit card issuer or financial institution or such amounts will be deemed to have been accepted by you. You agree to release GOOMA.COM from any liability for any error or discrepancy that is reported to GOOMA.COM after such period.
4.4. Your subscription to any billable portion of the Service will continue and renew automatically, unless terminated by GOOMA.COM or until you notify GOOMA.COM pursuant to Section 6.2 of your decision to terminate your subscription to a portion of the Service. GOOMA.COM reserves the right at any time to change its fees and charges for use of portions of the Service, to institute new or additional fees, and to change its policies, methods, and procedures with respect to pricing, billing, cancellations, and surcharges. Although GOOMA.COM expects to provide e-mail or other notice to you prior to increasing the price you pay for the Service, GOOMA.COM shall not be required to do so before making any of the changes described. You may obtain current pricing information for different service levels, as well as information about policies, methods and procedures with respect to pricing, billing, cancellation and surcharges (i) by calling the GOOMA.COM customer service number (which is 623-581-0842 as of the date of this Agreement), (ii) through GOOMA.COMs Web site, or (iii) by sending e-mail to billing@GOOMA.COM.com. GOOMA.COM may modify the means of accessing rates and billing information in its sole discretion.
4.5. In addition to fees for your subscription to any billable portion of the Service, you agree to pay all sales, use, value-added, personal property or other governmental taxes or levies imposed on fees for the Service or goods or services that you purchase through the Service.
No Warranties
5.1. You agree that use of the Service is at your sole risk. You acknowledge that the Service may provide access to the Internet, but that the Internet is not owned, operated or managed by GOOMA.COM.
5.2. With respect to information, goods and services provided or accessed on or through the Service or otherwise available on the Internet, GOOMA.COM (i) has no responsibility or obligation with respect to (and does not endorse) any information, good or service, (ii) makes no warranties whatsoever (express or implied) with regard to any information, good or service (including, without limitation, warranties of accuracy, completeness, usefulness, merchantability, safety or fitness for a particular purpose), (iii) will not be a party to a transaction between you and any other user of the Service and (iv) will not be liable, under any circumstance, for any loss, cost or damage arising directly or indirectly from any act or omission of any person or from any information, good or service; except to the extent the foregoing may not be disclaimed under law. GOOMA.COM does not assume liability to subscribers or others for any failure to enforce the Guidelines.
5.3. GOOMA.COM AND ITS PARTNERS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE NOR MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE USE OF THE SERVICE. GOOMA.COM DOES NOT GUARANTEE CONNECTIVITY AT ANY TIME, FOR ANY LENGTH OF TIME OR AT ANY SPEED. THE SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES WHATSOEVER (EITHER EXPRESS OR IMPLIED), INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF TITLE OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL ADVICE OR WRITTEN (INCLUDING ELECTRONIC) INFORMATION PROVIDED BY GOOMA.COM, ITS EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, LICENSORS OR AUTHORIZED USERS WILL CREATE A WARRANTY, NOR SHOULD YOU RELY ON ANY SUCH ADVICE OR INFORMATION.
5.4. UNDER NO CIRCUMSTANCES (INCLUDING NEGLIGENCE AND FUNDAMENTAL BREACH) WILL GOOMA.COM OR ANYONE ELSE INVOLVED IN PROVIDING THE SERVICE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES FROM OR THROUGH THE USE OF OR INABILITY TO USE THE SERVICE OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR E-MAIL, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. GOOMA.COMS ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SERVICE WILL BE THE TOTAL AMOUNT OF SERVICE FEES PAID BY YOU DURING THE PRIOR YEAR, IF ANY. THE TERMS OF THIS SECTION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT. IN JURISDICTIONS WHICH RESTRICT LIMITATION OF LIABILITY PROVISIONS, GOOMA.COMS LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THIS LIMITATION WILL APPLY REGARDLESS OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Indemnification
You agree to indemnify and hold harmless GOOMA.COM and its affiliates and their respective officers, directors, employees and agents against any liability, damages or other expenses (including attorneys' fees and costs) arising from your use of the Service (including, without limitation, your dissemination of any information on the Service).
Termination
6.1. GOOMA.COM may terminate your access to the Service and your account at any time, for cause or for no cause, with or without written (including electronic) notice. Upon termination, you will have no right to continue to use the Service or access any stored content on the Service (and any such content will be forfeited). You acknowledge that if an account on the Service is terminated (or if you delete your account from GOOMA.COMs central computers), any unread e-mail sent prior to termination (or deletion of your account) may be deleted from the Service.
6.2. You may cancel billing for your service at any time by calling GOOMA.COMs cancellation service number (which is 623-581-0842 as of the date of this Agreement) or by using such other means as GOOMA.COM may make available from time to time, provided that you will remain liable for any fees to which you have committed at the time of registration. If you are dissatisfied with this Agreement or any terms, policies, or practices of GOOMA.COM in operating the Service, any content available through the GOOMA.COM Service, or any change to any of the foregoing, your sole recourse is to cancel your service. Deleting your account from GOOMA.COMs central computers will not cancel billing for your service.
SPAM Policy
7.1. Spam refers to unsolicted commercial email. It pollutes the internet with many copies of the same message, forcing it on people who have not requested the information it contains. SPAM ties up the Internet's valuable resources by forcing the resources to process very large volumes of non-requested mail.
7.2. Spamming will not be tolerated. Any account used for spamming will be terminated immediately.
7.3. Using the service in any way for spamming purposes, whether directly or indirectly, will expose an individual to legal action. Forging email headers is illegal and will result in legal action.
Miscellaneous
8.1. The failure of either you or GOOMA.COM to insist upon or enforce strict performance by the other of any provision of the Agreement will not be construed as a waiver of any provision or right. Neither the course of conduct between you and GOOMA.COM nor trade practice will act to modify any provision of the Agreement.
8.2. If any provision of this Agreement is held to be unenforceable for any reason, that provision will be reformed only to the extent necessary to effect the original intentions of the parties, and the remainder of this Agreement will remain in full force and effect.
8.3. This Agreement and its enforcement will be governed by, and construed in accordance with, the laws of the State of Arizona, without regard to conflicts-of-law principles. You consent to the exclusive jurisdiction of the state and federal courts situated in the State of Arizona in connection with any action arising under this Agreement or relating to the Service, and to having any judgment or order from such jurisdiction recognized in any other court, tribunal or other governmental body in order to have the same enforced against you. Any cause of action brought by or on behalf of you with respect to this Agreement, the Service must be commenced within one year after the claim or cause of action arose.