PointAcross® is a registered service mark, and PointAcross™ and the PointAcross logo are trademarks of GoldMail, Inc. These Terms of Service (this “Agreement”), govern the terms and conditions of your access and use of PointAcross® Offerings (as defined below), and are made between you (“you” or “Customer”), and GoldMail, Inc. However, if you have registered as or on behalf of an entity, such as a corporation, partnership, limited liability company or other entity “you” or “Customer” refer to the entity, and you represent and warrant that you have power and authority to enter into this Agreement on behalf of the entity. This Agreement also includes and incorporates by reference any operating rules, policies, price schedules, or other supplemental documents which may be published generally from time to time by GoldMail, Inc., both prior and subsequent to the effective date of this Agreement.
By clicking the “Accept” button for this Agreement, signing a PointAcross, Inc. sales order form and/or using any PointAcross Offerings, you confirm your acceptance of, and agree to be bound by, this Agreement.
1. PointAcross Offerings. The “PointAcross Offerings” are as follows:
A: Services including but not limited to PointAcross services (the “Services”) from one or more of the PointAcross Web Sites (as defined below).
B: GoldMail™ software (aka “GoldMail”), and any other software we offer (the “Software”): GoldMail includes, but is not limited to, (i) downloadable and/or Web-based software that provides a composition screen that enables a Customer to place electronic content that Customer can annotate with his/her voice (using a computer microphone, separately purchased headset or prerecorded audio file) and create a unique URL on GoldMail, Inc.’s servers where such content, with the synchronized annotation, can be accessed. Such URLs can be pasted automatically into a Customer’s compatible outgoing email or posted elsewhere on the internet (at blogs, Web sites, etc.); and (ii) a site where Customers can store PointAcross messages and can view data such as whether a PointAcross message was viewed by an email recipient, the number of times a PointAcross message was viewed, and the duration of each such viewing;
C: Web sites owned or operated by GoldMail, Inc., including but not limited to www.PointAcross.com (the “Web Sites”); and
D: Such other products and services as GoldMail, Inc. may offer under this Agreement from time to time.
2. Privacy, Anti-Spam and Other Policies
3. Customer Responsibilities
A. Registration and Equipment Obligations
In consideration of your use of any PointAcross Offering, you represent that you are of legal age to form a binding contract and are not a person barred from receiving products or services under the laws of the United States or other applicable jurisdiction. You also agree to: (a) provide true, accurate, current and complete information about yourself on our online or offline registration forms, such as your name, contact information and payment information (including the expiration date of any credit card) (the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you fail to do so, or GoldMail, Inc. has reasonable grounds to suspect any such issues with such information, GoldMail, Inc. has the right to suspend or terminate your account and refuse any and all current or future use of all or any portion of any PointAcross Offering.
It is your responsibility to (a) obtain and pay for all equipment and third-party services (e.g., Internet access and email service) required for you to access and use the applicable PointAcross Offering; (b) maintain the security of your PIN number and other confidential information relating to your PointAcross account and; (c) be responsible for all charges resulting from use of your PointAcross account, including unauthorized use prior to your notifying GoldMail, Inc. of such use and taking steps to prevent its further occurrence. You agree to immediately notify GoldMail, Inc. of any unauthorized use of your account or any other breach of security known to you.
B. Responsibility for Content
You understand that all information, data, text, software, music, audio, photographs, graphics, video, messages, tags, or any other materials (“Content”) that you store or transmit in connection with using any PointAcross Offering is the sole responsibility of the person from whom such Content originated. This means that you, and not GoldMail, Inc. are entirely responsible for all activities that occur under your account, including Content that you upload, post, email, transmit or otherwise make available via any PointAcross Offering. GoldMail, Inc. does not control or pre-screen the Content posted via the PointAcross Offerings and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that GoldMail, Inc. simply acts as a passive conduit and neutral storage site for you to create, store and send Content of your own choosing and/or to receive and view Content from others using PointAcross Offerings. However, GoldMail, Inc. reserves the right (but not the obligation) to take any action (such as pre-screening, deleting, reformatting or watermarking Content or terminating or suspending access to any PointAcross Offering) with respect to the PointAcross Offerings that GoldMail, Inc. deems necessary or appropriate in its sole discretion without notice if GoldMail, Inc. believes your activities or Content may create liability for GoldMail, Inc., compromise or disrupt any PointAcross Offering for you, other customers or GoldMail, Inc., or cause GoldMail, Inc. to lose (in whole or in part) the services of GoldMail, Inc. suppliers, or breach this Agreement or any GoldMail, Inc. policies.
GoldMail, Inc. may establish or revise from time to time at its discretion general practices and limits concerning your use of the PointAcross Offerings, such as the maximum amount of storage space or bandwidth you may use, number of messages you may send at any time and/or monthly views of PointAcross messages. These limits may vary depending on the plan you purchase. Should your account not comply with such practices and limits or should it otherwise result in an unreasonable or disproportionate burden on our systems, we reserve the right at our sole discretion to suspend your account and/or messages until the start of the next billing period, until you purchase more views or other resources at an additional fee, or until you upgrade to a higher level plan; to terminate your account; and/or to charge you an additional fee for the excess. If your campaign may involve any high-volume mailing, highly viral promotion and/or high message opening or re-play rates, you agree to notify us in advance and reasonably coordinate with us.
In addition, you agree that GoldMail, Inc. has no responsibility or liability for the deletion, corruption, or alteration of, or failure to store any Content.
You understand that by using the PointAcross Offerings, you may be exposed to Content that is inaccurate, offensive, indecent or objectionable. The PointAcross Offerings, Content, or third parties may provide links to other internet sites or resources. Because GoldMail, Inc. has no control over such Content, sites and resources, you acknowledge and agree that GoldMail, Inc. is not responsible for the availability of such Content or external sites or resources, does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such Content, sites or resources.
You understand that certain PointAcross Offerings may show advertising, branding or sponsorships. You may enter into correspondence with or participate in promotions of any entities which advertise or market through a PointAcross Offering. You agree that GoldMail, Inc. has no liability, obligation or responsibility for any part of any such advertising, branding, sponsorships, correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions.
You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, safety, completeness, or usefulness of such Content. Accordingly, you hereby waive any and all rights or remedies you may have against GoldMail, Inc. with respect thereto, and shall indemnify and hold harmless GoldMail, Inc. and its licensors, regarding all matters related to your use of the PointAcross Offerings.
C. Acceptable Use Policy
In connection with your use of any PointAcross Offering, you agree not to, directly or indirectly: (i) use any PointAcross Offering in any way that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or otherwise could result in civil or criminal liability; (ii) transmit any Content prohibited by intellectual property (e.g., patent, copyright, trademark, trade secret, or privacy and publicity) or other laws (including account collection, export control, consumer protection, unfair competition, anti-discrimination or false advertising), unless you are the owner or have permission to use such rights; (iii) use any PointAcross Offering in connection with unsolicited or unauthorized email or other unethical, illegal or inappropriate methods, as set forth in GoldMail, Inc.’s Anti-Spam Policy, as in effect from time to time, available atwww.PointAcross.com; (iv) use any PointAcross Offering as an illegal multi-level marketing (MLM), pyramid, chain letter or similar arrangement; (v) misrepresent any product or business; (vi) impersonate any person or entity, including, but not limited to, any GoldMail, Inc. representative, or misrepresent your affiliation with any person or entity; (vii) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content created or transmitted in connection with any PointAcross Offering; (viii) transmit any material that contains software viruses or any other functional Content designed to interrupt, destroy or limit the functionality of GoldMail, Inc. products or services or other computer software, hardware or telecommunications equipment; (ix) interfere with or disrupt GoldMail, Inc. products and services or servers or networks connected to them or interfere with any security or rights protection functionality of GoldMail, Inc. or any third party; (x)violate any applicable law or regulation, or incite or provide instructional information about illegal activities; or(xi)conduct raffles, contests, lotteries or sweepstakes, except in compliance with all federal and state legal requirements. GoldMail, Inc. shall be the sole arbiter as to what activities violate this policy.
Either you or GoldMail, Inc. may terminate your PointAcross account and your use of any or all PointAcross Offerings at any time, with or without cause, upon notice. Any such notice by you to GoldMail, Inc. must be in accordance with GoldMail, Inc.’s verification procedures, as such procedures may be established and changed by GoldMail, Inc. from time to time in its sole discretion, and which may include the requirement that you contact GoldMail, Inc. by telephone to confirm that any such notice was in fact sent by you. GoldMail, Inc. also reserves the right to terminate or suspend your PointAcross account, your use of any or all PointAcross Offerings, and general access to any Content without prior notice, and for any reason, including if you engage in any conduct that GoldMail, Inc. believes: (a)violates the letter or spirit of any term or provision of this Agreement, (b)violates the rights of GoldMail, Inc. or third parties, or (c) is otherwise inappropriate for continued access and use of the PointAcross Offerings. In addition, GoldMail, Inc. may terminate any account if that account has been inactive for more than six (6) months. For thirty (30) days following the termination date or until such earlier time as you may request via the Services, GoldMail, Inc. shall continue to store your Content on our servers. After such period, GoldMail, Inc. shall have the right, but not the obligation, to destroy permanently such Content. No obligation exists to make Content available to former customers after termination of their agreement with GoldMail, Inc.
5. Modifications to this Agreement
GoldMail, Inc. may amend this Agreement at any time by (a) posting revised PointAcross Terms of Service on the appropriate Web Sites, and/or (b) sending information regarding the amendment to your email address of record with GoldMail, Inc. You are responsible for regularly reviewing the Web Sites to obtain timely notice of such amendments. You shall be deemed to have accepted such amendments by continuing to use any PointAcross Offerings after such amendments have been posted or information regarding such amendments has been sent to you. If you do not agree to any of such changes, you may terminate this Agreement and immediately cease all access and use of the PointAcross Offerings. You agree that such termination will be your exclusive remedy in such event.
6. Modifications to Offerings
GoldMail, Inc. reserves the right at any time and from time to time to modify or discontinue all or any portion of any PointAcross Offering without notice to you. GoldMail, Inc. shall not be liable to you or any third party should GoldMail, Inc. exercise such rights, or for any resulting loss or destruction of any Content that you place or store on any PointAcross Offering. GoldMail, Inc. may specify from time to time the version(s) of related products required in order to use PointAcross Offerings (e.g. browsers and hardware).
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
A. POINTACROSS OFFERINGS AND ALL OTHER GOLDMAIL, INC. SOFTWARE, PRODUCTS AND/OR SERVICES (“POINTACROSS ITEMS”) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER GOLDMAIL, INC. NOR ANY OF ITS SUPPLIERS MAKES ANY EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE SAME, NOR DO THEY ASSUME RESPONSIBILITY FOR TIMELINESS, MISDELIVERY, DELETION, OR FAILURE TO STORE ANY CONTENT. GOLDMAIL, INC. DOES NOT WARRANT THAT ACCESS TO OR USE OF ANY POINTACROSS ITEM WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT POINTACROSS ITEMS WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY OR WILL RESULT IN REVENUES, PROFITS OR SAVINGS. GOLDMAIL, INC. AND ITS SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, OR SECURITY.
B. YOUR USE OF POINTACROSS ITEMS IS AT YOUR OWN RISK. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR DOWNLOADING AND/OR USE OF CONTENT OR OTHER MATERIAL (INCLUDING POINTACROSS ITEMS) OBTAINED EITHER DIRECTLY OR INDIRECTLY FROM GOLDMAIL, INC. YOU AGREE THAT NEITHER GOLDMAIL, INC. NOR ANY OF ITS SUPPLIERS WILL BE LIABLE FOR DAMAGES (INCLUDING CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOST REVENUES, PROFITS OR SAVINGS) ARISING OUT OF YOUR USE OF OR INABILITY TO USE POINTACROSS SERVICES OR ANY OTHER POINTACROSS ITEMS, AND YOU HEREBY RELEASE AND WAIVE ANY CLAIMS WITH RESPECT THERETO, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF GOLDMAIL, INC. OR ANY SUCH SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE § 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” RESIDENTS OF OTHER STATES AND NATIONS SIMILARLY WAIVE THEIR RIGHTS UNDER COMPARABLE LOCAL LAW. THE ENTIRE LIABILITY OF GOLDMAIL, INC. AND ITS SUPPLIERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF POINTACROSS ITEMS OR ANY BREACH OF THIS AGREEMENT ARE LIMITED TO THE LESSER OF: (I) THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE OF THE POINTACROSS ITEMS IN THE THREE (3) MONTHS PRECEDING THE DATE OF YOUR CLAIM OR (II) U.S.$30.00. YOU HEREBY RELEASE GOLDMAIL, INC. AND EACH OF ITS SUPPLIERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THIS LIMITATION. YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF POINTACROSS ITEMS OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED. SOME JURISDICTIONS DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED OR MODIFIED OR LIABILITY TO BE LIMITED, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
C. NEITHER GOLDMAIL, INC. NOR ANY OF ITS SUPPLIERS SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS DIFFICULTIES OUTSIDE OF GOLDMAIL, INC.’S OR ANY SUCH SUPPLIER’S CONTROL WHICH COULD LEAD TO THE INTERRUPTION OF DATA DELIVERY SERVICE TO THE CUSTOMER.
D. YOU WILL NOT RELY ON ANY REPRESENTATION OR WARRANTY, EXPRESSED OR IMPLIED, MADE BY ANY PERSON OTHER THAN ONE MADE IN WRITING BY AN AUTHORIZED OFFICER OF GOLDMAIL, INC, IN EVALUATING ANY POINTACROSS ITEMS.
A. Customers may from time to time be given the option to use certain versions or editions of PointAcross Offerings at no charge for a Free Trial period described on the Web Site www.PointAcross.com (the “Free Trial Period”). GoldMail, Inc. provides the Free Trial Period as an accommodation to you, and reserves the right to terminate your Free Trial Period at any time, for any reason or no reason, without notice. In addition, use of the public areas of the PointAcross Web Sites (apart from PointAcross Services, PointAcross Software and other fee-paid PointAcross Offerings) is currently at no charge.
B. You agree to pay all charges for your use of PointAcross Offerings at the prices then in effect. All charges will be exclusive of value added (“VAT”), sales or other taxes, except as required by law. GoldMail, Inc. reserves the right to change prices or promotions or institute new charges or promotions for access to or use of all or any portion of PointAcross Offerings. GoldMail, Inc. will post all changes at the PointAcross Web Site.
C. Payment of your PointAcross account balance is due monthly or annually, as relevant, in advance.
D. If you make payment by credit or debit card, and payment is not received by GoldMail, Inc. from the card issuer or its agents, you agree to pay all amounts due upon demand by GoldMail, Inc. Each time you use any PointAcross Offerings that are fee-based, or allow or cause such PointAcross Offerings to be used, you agree and reaffirm that GoldMail, Inc. is authorized to charge your designated card. Your card issuer’s agreement governs your use of your designated card in connection with PointAcross Offerings, and you must refer to such agreement (not this Agreement) with respect to your rights and liabilities as a cardholder. You agree that GoldMail, Inc. may (at its option) accumulate charges incurred during your monthly billing cycle and submit them as one or more aggregate charges during or at the end of each cycle, and that GoldMail, Inc. may delay obtaining authorization from your card issuer until submission of the accumulated charge(s). This means that accumulated charges may appear on the statement you receive from your card issuer.
E. FEES FOR POINTACROSS OFFERINGS ARE NON-REFUNDABLE, AND ALL SALES ARE FINAL. You agree that GoldMail, Inc. may, in the event you use any PointAcross Offering beyond those initially contracted for, submit additional charges at that time to your card, without further authorization from you, until you provide prior notice (in accordance with GoldMail, Inc.’s verification procedures, as may be established by GoldMail, Inc. from time to time in its sole discretion) that you have terminated this authorization or wish to change your designated payment method or card. Such notice will not affect charges submitted before GoldMail, Inc. reasonably could act on your notice. If you have any question regarding any charges that have been applied to your account, you must contact GoldMail, Inc.’s Customer Service Department within 30 days of the charge date.
F. If you make payment by credit or debit card, and if you subscribed for a PointAcross Offering pursuant to a special offer granting you a Free Trial period, any activation fee and initial service fee (e.g., for first month of a monthly service) may be PRE-AUTHORIZED AGAINST YOUR CREDIT CARD OR DEBIT CARD LIMIT (meaning the amounts pre-authorized will not be considered available credit or debit funds in such account) and will be immediately charged to your credit or debit card, without further authorization from you, immediately after the expiration of such Free Trial period, unless you provide prior notice (in accordance with GoldMail, Inc.’s verification procedures, as may be established by GoldMail, Inc. from time to time in its sole discretion) that you have terminated this authorization. Such notice will not affect charges submitted before GoldMail, Inc. reasonably could act on your notice.
G. If you subscribed for a PointAcross Offering pursuant to a special offer granting a pre-paid discount for a fixed number of months or other basis, your pre-paid fees are payable in advance and are NON-REFUNDABLE. Such notice will not affect charges submitted before GoldMail, Inc. reasonably could act on your notice.
H. You must promptly notify GoldMail, Inc. of changes to: the account number or expiration date of your designated card (if applicable) and your billing address. You must also promptly notify GoldMail, Inc. if your card is canceled (e.g., for loss or theft).
I. GoldMail, Inc. reserves the right to suspend or terminate your PointAcross account and/or your use of any PointAcross Offerings without notice upon card expiration, insufficient funds, rejection of any payment or card charges or if your financial institution (or its agent or affiliate) seeks return of payments previously made to GoldMail, Inc. when GoldMail, Inc. believes you are liable for the charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to GoldMail, Inc.
You agree that all programs, services, processes, designs, software, technologies, trademarks, trade names, inventions, patents, other intellectual property and materials comprising the PointAcross Offerings are wholly owned by GoldMail, Inc. and/or its suppliers except where expressly stated otherwise.
10. Limited Right to Use
A. Subject to your payment of applicable charges and compliance with the other terms and conditions of this Agreement, GoldMail, Inc. grants you a limited, nonexclusive, non-transferable, revocable right to use the PointAcross Offerings solely for your personal or internal business purposes. You agree not to use for any other purpose, copy, sell, resell, rent or sublicense (including offering any PointAcross Offering to third parties on an applications service provider or time-sharing basis), lease, loan, republish, distribute (for example, in other media), transmit, or create a derivative work of, or otherwise exploit any portion of the PointAcross Offerings or access to the PointAcross Offerings, without prior written permission of GoldMail, Inc. No part of any PointAcross Offering may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical, for resale or distribution. You shall maintain any notices contained in or displayed on any PointAcross Offering. The limited right granted above shall terminate automatically without notice if you breach any of the foregoing terms and conditions. All rights not specifically granted by GoldMail, Inc. are reserved by GoldMail, Inc.
B. Regarding the Content you submit to or via any PointAcross Offering, you retain all ownership of your Content and you grant GoldMail, Inc. the worldwide, non-exclusive, irrevocable, transferable, sublicenseable, license without royalty or other compensation to use, copy, distribute, create derivative works of (e.g. reformatting for storage and transmission), transmit, perform and display any or all of such Content, all in connection with GoldMail, Inc.’s providing the PointAcross Offerings to you and the recipients of your PointAcross. You also grant such license to each recipient of your PointAcross messages for that recipient’s use for any purpose.
C. GoldMail, Inc. may provide forms or mechanisms for you to provide Content for feedback, testimonials, suggestions and ideas about GoldMail, Inc. products and services (“Responses”), and accordingly, GoldMail, Inc. may use any Responses in any way, including in future versions of its products or services, and/or its advertising or promotions. You grant GoldMail, Inc. a perpetual, worldwide, non-exclusive, irrevocable, transferable, sublicenseable, license without royalty or other compensation to use, copy, distribute, create derivative works of, transmit, perform and display the Responses, in any manner and for any purpose. Additionally, we may use your name and logo publicly or privately in our online or offline customer lists, presentations, advertising and promotional materials, and/or financial reports, unless we otherwise agree in writing.
You agree to indemnify and hold harmless GoldMail, Inc. and each of its officers, directors, employees, agents, and suppliers from and against any and all losses, liabilities, expenses (including attorneys’ fees and costs) and damages arising out of claims based upon use of your PointAcross account, any PointAcross Offering or your Content, including any violation of this Agreement by you or any other person using your account, any claim of libel, defamation, violation of rights of privacy or publicity, any loss of service by other customers, any infringement of intellectual property or other rights of any third parties, and any violation of any laws or regulations, including but not limited to any violation of any laws or regulations prohibiting transmission of unsolicited email or marketing messages.
12. Notices; Consent
Notices given by GoldMail, Inc. to you will be given by general posting on the PointAcross Web Site, or by email, overnight courier, first class or express mail to your address of record at GoldMail, Inc. Notices given by you to GoldMail, Inc. must be given by first class or express mail, certified or registered, postage prepaid and sent to GoldMail, Inc. 320 College Ave, Ste 225, Santa Rosa, California 95401 U.S.A.
13. Notices of Infringement
Persons who believe that their copyrights or other intellectual property rights have been infringed via any PointAcross Offering may notify GoldMail, Inc.’s Designated Agent. All notices must comply with the requirements of U.S. Copyright Act Section 512(d) and regulations promulgated thereunder, as amended. Such notices not complying with these requirements will be returned unprocessed. Also, please indicate the specific Content, and Web site URL or PointAcross Offering. Designated Agent and Address of Agent:
Attn: Copyright Designated Agent
320 College Ave, Ste 225
Santa Rosa, CA 95401
14. General Terms
You affirm that you are over the age of eighteen (18), possess consent of your parent or legal guardian, and/or are otherwise fully able and competent to enter into this Agreement, and to comply with all the terms and conditions of this Agreement. If you have purchased a monthly or annual subscription, then this Agreement shall automatically renew on a monthly or annual basis, respectively. For all other customers, this Agreement shall automatically renew on a monthly basis. The laws of the State of California, U.S.A., excluding its conflicts of law rules, govern this Agreement and your use of all PointAcross Offerings. The UN Convention on Contracts for the International Sale of Goods is disclaimed. You agree that exclusive jurisdiction for any claim or dispute arising from this Agreement shall be in the federal and state courts located in San Francisco County, California, U.S.A. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. GoldMail, Inc.’s failure to act with respect to a breach by you or others does not waive GoldMail, Inc.’s right to act with respect to subsequent or similar breaches. You may not assign or transfer this Agreement or any rights hereunder, and any attempt to the contrary is void. Subject to the preceding sentence, this Agreement benefits and binds the respective successors and assigns of the parties. GoldMail, Inc. shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond GoldMail, Inc.’s reasonable control. This Agreement supersedes all prior or contemporaneous agreements, representations, warranties, understandings or communications between the parties regarding the subject matter herein. There are no third party beneficiaries to this Agreement. Customer acknowledges that all or portions of the PointAcross Offerings may be subject to the export control laws of the United States and/or other jurisdictions of the world. Customer agrees not to export, re-export or otherwise transfer any portion of the PointAcross Offerings in violation of any applicable export law or regulation. Any GoldMail, Inc. software and the documentation which accompanies the same are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government as end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. GoldMail, Inc., 320 College Ave, Ste 225, Santa Rosa, CA 95401. Sections 7, 8, 9, 10(B) and (C), 11, 12 and 14 of this Agreement shall survive the termination of your account or access to the PointAcross Offerings. PointAcross® is a registered service mark, and PointAcross™ and the PointAcross logo are trademarks of GoldMail, Inc.