1. ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE
The Pagoo Service ("Service") is owned and operated by Pagoo Communications, Inc. ("Pagoo"). Pagoo is provided to you ("Member") under the terms and conditions of this Pagoo Terms of Service ("PTS") which is incorporated in this Agreement by reference and any operating rules or policies that may be published by Pagoo Communications, Inc. at any time during the term of this Agreement BY COMPLETING THE REGISTRATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE PTS. Pagoo reserves the right to change the Terms Of Service or policies regarding the use of the Service at any time and to notify you by posting an updated version of the Terms Of Service on the Pagoo Web site.
2. DESCRIPTION OF SERVICE
Pagoo is providing Member with the capability to receive, retrieve and forward voice and text messages from the Internet and/or the Pagoo Desktop Agent and to record Pagoo voice greetings over the phone. Pagoo Communications, Inc. will not charge Member for this Service for the free trial period. If Member elects to purchase the Service following the free trial period, Member will have the option to prepay subscription fees for either a six month or a twelve month term (the "Initial Term") at Pagoo's
then current rate for such Service.
In addition, in order to subscribe to the Service, Member must (1) provide all equipment necessary to establish a connection to the Internet and record the voicemail greeting; and (2) provide for access to the Internet and pay any telephone service fees associated with such access, and (3) all phone service features required by the Pagoo service.
In consideration for the Service, Member agrees to: (1) provide certain current, complete, and accurate information about Member as prompted to do so by the Service and (2) maintain and update this information as required to keep it current, complete and accurate. All information requested on original sign up and purchase forms shall be referred to as registration data ("Registration Data"). The use of Registration Data is subject to Pagoo's privacy policy set forth below.
Member acknowledges and agrees that Pagoo is a passive conduit for the online distribution of Member communications and neither endorses the contents of any Member communications nor assumes responsibility for any threatening, libelous, obscene, harassing or offensive material contained therein, any infringement of third party intellectual property rights arising therefrom, or any crime facilitated thereby. Member acknowledges and agrees that certain technical processing of voicemail messages and their content may be required to: (1) send and receive messages; (2) conform to connecting networks' technical requirements; (3) conform to the limitations of the Service; or (4) conform to other similar requirements.
3. SOFTWARE LICENSE
Pagoo grants Member a royalty-free, fully-paid, nonexclusive, worldwide license to download and use the Pagoo desktop agent software (the "Software"). Member may make copies of the Software for Member's own use or to distribute to third parties provided that (1) Member does not charge a fee for the Software, (2) such third parties agree to be bound by the terms and conditions of this Agreement, and (3) Member includes the terms of this Agreement and any copyright or other proprietary rights notices included in the Software in all copies of the Software. If Member wishes to distribute the Software over the Internet or by other online means, Member agrees to periodically (not less than once per month) check the Pagoo web site to see if a more recent version of the Software is available for download, and if so, to download and distribute only the most recent version of the Software thereafter.
4. PRIVACY POLICY
Member grants Pagoo the right to disclose to third parties certain Registration Data about Member and Service membership in the aggregate; however, such disclosures will exclude Member's name, mailing address, phone number, password and PagooID unless: (1) Member expressly directs Pagoo or any other person Member may specifically designate to disclose such information through the Service or (2) Pagoo is required to disclose such information by any applicable law or legal process served on Pagoo.
Voice-based or text-based messages are private correspondence between the sender and the recipient. It is Pagoo.'s policy to respect the privacy of its Members. Therefore, in addition to the privacy of Registration Data as discussed above, Pagoo will not monitor, edit, or disclose the contents of Member's private communications unless required to do so by law or if Pagoo in good faith believes that such action is necessary to: (1) conform to the requirements of applicable law or legal process; (2) protect and defend the rights or property of Pagoo; or (3) act under exigent circumstances to protect the personal safety of its members or the public. If any Registration Data provided by Member is inaccurate, Pagoo retains the right to terminate Member's membership and rights to use the Service. Member agrees that Pagoo has the right to contact him/her via Email communication and/or Pagoo voicemail messages at any time concerning any promotion, commercial offering or incentive related to any Pagoo service or software, either free or paid. In the event that Member does not want to be contacted by Pagoo for any reason other than notices permitted by this Agreement, Member may provide Pagoo with a written notice asking to be removed from Pagoo's communication database and Pagoo will remove Member from the database
5. MEMBER ACCOUNT, PASSWORD, AND SECURITY
Upon becoming a member of the Service, Member shall receive a PagooID and a password. Member is entirely responsible for Member's failure to maintain the confidentiality of the PagooID and password. Furthermore, Member is entirely responsible for any and all activities which occur under Member's Pagoo account. Member may change his or her PagooID at any time by following instructions inside the Pagoo Web Site; Member may also set up a new account at Member's convenience. Member agrees to immediately notify Pagoo of any unauthorized use of Member's account or any other breach of security known to Member.
6. DISCLAIMER OF WARRANTIES
MEMBER EXPRESSLY AGREES THAT USE OF THE SERVICE OR SOFTWARE IS AT MEMBER'S SOLE RISK AND THAT PAGOO HAS NO RESPONSIBILITY FOR THE DELETION OR FAILURE TO STORE VOICEMAIL MESSAGES. THE SERVICE AND THE SOFTWARE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PAGOO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PAGOO MAKES NO WARRANTY THAT THE SERVICE OR THE SOFTWARE WILL MEET MEMBER'S REQUIREMENTS, OR THAT THE SERVICE OR THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES PAGOO MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR THE SOFTWARE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SERVICE OR THE SOFTWARE WILL BE CORRECTED. MEMBER UNDERSTANDS AND AGREES THAT ANY SOFTWARE OR ANY OTHER MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT MEMBER'S OWN DISCRETION AND RISK AND THAT MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH SOFTWARE, MATERIAL AND/OR DATA.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
7. LIMITATION OF LIABILITY
PAGOO SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR THE SOFTWAREOR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF MEMBER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF PAGOO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
PAGOO'S LIABILITY, AND THE LIABILITY OF ITS SUPPLIERS, TO MEMBER OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES MEMBER PAYS TO PAGOO IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, AND (B) $100.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
8. MEMBER CONDUCT
Member's right to use the Service is personal to Member. Member represents that it is an individual over the age of 18. If the member is signing on behalf of a corporation or other business entity, the member is authorized to bind such corporation or entity.
Member agrees not to resell or make any commercial use of the Service without the express consent of Pagoo Communications, Inc.
Member agrees: (1) to comply with US law (including export laws) regarding the transmission of technical data exported from the United States through the Service; (2) not to violate any local, state, national or international laws or regulations, including but not limited to consumer protection, unfair competition, antidiscrimination, copyright, trade secret, or false advertising or to use the Service for illegal purposes; (3) not to interfere or disrupt networks connected to the Service, including but not limited to, not to introduce any viruses, Trojan horses, worms, time bombs, cancelbots or other programming routines intended to damage, interfere with interception or expropriate any system, data or personal information; (4) not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material (including but not limited to child pornography or any other material harmful to minors) of any kind or nature; (5) not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. (6) not to attempts to gain unauthorized access to other computer systems, (7) not to interfere with another member's use and enjoyment of the Service or another entity's use and enjoyment of similar services; and (8) to comply with all regulations, policies and procedures of networks connected to the Service.
The Service makes use of the Internet to send and receive certain messages; therefore, Member's conduct is subject to Internet regulations, policies and procedures. Member will not use the Service for chain letters, junk mail, spamming or any use of distribution lists to any person who has not given specific permission to be included in such a process.
Member agrees that Pagoo has the right to establish limits on the number of messages which can be sent, received and/or stored by Member in order to prevent excessive use of the Service by one or more members which could negatively impact the use of the Service by other members, and Member agrees to comply which any such limits which Pagoo may establish at any time during the Term.
Pagoo may, at its sole discretion, take any action as Pagoo in its sole discretion deems necessary if Pagoo believes it may create liability for Pagoo or cause Pagoo to lose (in whole or in part) the services of its other suppliers, including but not limited to immediate termination of the Service, should Member's conduct fail to conform with these terms and conditions of the PTS.
9. INDEMNIFICATION
Member agrees to indemnify and hold Pagoo, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Member's use of the Service, the violation of this Agreement by Member, or the infringement by Member, or other user of the Service using Member's computer, of any intellectual property or other right of any person or entity.
10. TERMINATION
This Agreement shall automatically renew for successive term(s) of the same duration as the initial term upon expiration of the Initial Term, unless either party gives at least 30 days written notice of intent not to renew prior to expiration of the Initial Term or any renewal term. Member shall pay Pagoo's then current subscription fee for each renewal term within 30 days after receipt of Pagoo's invoice. Pagoo will invoice Member for the renewal term at Pagoo's then current subscription fee, and member shall pay such invoice within 30 days of receipt, either by check or by authorizing Pagoo to charge the fee to Member's credit card.
Either party may terminate this Agreement in the event of a material breach by the other party which is not cured within 30 days after notice thereof. Notwithstanding the foregoing, Pagoo may terminate this Agreement immediately in the event that Member fails to make any payments owed to Pagoo hereunder. In addition, Pagoo has the right to terminate this Agreement without cause on 30 days prior notice to Pagoo in the event that Pagoo discontinues the Service generally. In the event that Member terminates this Agreement for Pagoo's breach or Pagoo terminates the Agreement because it has discontinued the Service generally, Pagoo shall refund to Member a pro rata portion of the subscription fee for the period remaining in the then current term.
Upon termination of the Service, Member's right to use the Service and the Software immediately ceases, and Member shall have no right to receive, and Pagoo will have no obligation to forward, any unread or unsent messages to Member or any third party.
11. NOTICE
All notices to a party shall be in writing and shall be made either via email or U.S. mail. Pagoo may broadcast notices or messages through the Service to inform Member of changes to the PTS, the Service, or other matters of importance; and such broadcasts shall constitute notice to Member. Notice shall be deemed given 24 hours after an email is sent, unless the sending party is notified that the email address is invalid, or three days after deposit in the U.S. mail. Any notice sent to Pagoo shall be sent to the attention of the General Counsel.
12. PARTICIPATION IN PROMOTIONS OF ADVERTISERS
Member may enter into correspondence with or participate in promotions of the advertisers showing their products on the Service. Any such 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, are solely between the corresponding Member and the advertiser. Pagoo assumes no liability, obligation or responsibility for any part of any such correspondence or promotion.
13. PROPRIETARY RIGHTS TO CONTENT
Member acknowledges that content, including but not limited to text, software, music, sound, photographs, video, graphics or other material contained in either sponsor advertisements or voicemail-distributed, commercially produced information presented to Member by the Service ("Content") by Pagoo or its advertisers, is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws; therefore, Member is only permitted to use this Content as expressly authorized by the Service or such advertiser. Member may not copy, reproduce, distribute, or create derivative works from this Content without expressly being authorized to do so by the Service or the advertiser.
14. MEMBER MESSAGES
Member hereby consents to the editing and publication by Pagoo of all or part of the text of any email or message sent by member to Pagoo, together with the member's initials and state of country (if non U.S.) of residence. "Publication" includes but is not limited to, reprinting such quotes in hard copy form or posting such quotes on the Pagoo web site.
15. ARBITRATION
Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted by a single arbitrator selected in accordance with the rules of the AAA in San Jose, California, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either party has the right to seek any interim or preliminary relief from a court of competent jurisdiction in California, necessary to protect the rights or property of such party pending the completion of any arbitration hereunder, and both parties agree to submit to the exclusive jurisdiction of the courts of the state of California.
16. LAWS
This Agreement shall be governed by and construed in accordance with the laws of the state of California, excluding its conflict of law provisions.
If any provision(s) of this Agreement is found to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.
Pagoo's failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Pagoo in writing.
Member and Pagoo agree that any cause of action arising out of or related to this Agreement, or the Service must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
The section titles in this Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
