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End-User Service Agreement

WHATBIRD.COM'S SERVICES ARE USED IN PROVIDING THESE SERVICES TO YOU ON THIS SITE ("SERVICES") AND INCLUDE PROPRIETARY MATERIALS, THE USE OF WHICH IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS END-USER AGREEMENT, AS AMENDED FROM TIME TO TIME UPON NOTICE FROM WHATBIRD.COM, WHICH NOTICE MAY BE PROVIDED TO YOU ON THE PAGES THROUGH WHICH YOU ACCESS OR USE THE SERVICES. PROCEEDING WITH THE USE OF THE SERVICES, OR THE CONTINUED USE OF THE SERVICES AFTER RECEIVING NOTICE OF ANY CHANGES, CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THE END-USER AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS, YOU MUST NOT USE THE SERVICES!

 
WHATBIRD.COM™ INCORPORATED
END-USER SERVICES AGREEMENT
 
 
This End-User Services Agreement ("Agreement") is an agreement between you, an individual or an individual acting on behalf of your employer, a corporation, partnership, or other legal entity that will be using WHATBIRD.COM's services ("User"), WHATBIRD.COM Incorporated, a California corporation located at 160 C Donahue Street, Suite 226, Sausalito, CA 94965, USA ("Company"), and the owner of the Web site through which you have requested WHATBIRD.COM's services ("Client"). WHATBIRD.COM's services, as described below in Section 2 and Exhibit A hereto (the "Services"), include proprietary materials, the use of which is subject to the terms and conditions of this Agreement.
 
1. ACKNOWLEDGMENT AND ACCEPTANCE OF AGREEMENT
 
The Services, provided by Company on behalf of Client, are provided to User under the terms and conditions of this Agreement and Exhibit A hereto, any amendments to this Agreement and/or Exhibit A, and any operating rules or policies that may be published from time to time by Company and Client, all of which are hereby incorporated by reference. This Agreement comprises the entire agreement between User and Company and supersedes any prior agreements pertaining to the subject matter contained herein.
 
2. DESCRIPTION OF SERVICES
 
Company, on behalf of Client, is providing User with any or all of the following services: (a) email; (b) meta-search; (c) community services; and (d) any other services which Company may elect to provide on behalf of Client in the future. These Services are provided to User at the discretion of Client, and Company has no obligation to provide the Services directly to User. Company does not charge User for the Services (though Company may do so at any time in the future), but may charge for enhancements User may elect to obtain (e.g., Mail Plus Total Protection).
 
Company and Client also reserve the right to modify or discontinue, temporarily or permanently, the Services with or without notice to User. User agrees that Company, Client, and their third party service providers shall not be liable to User or any third party for any modification or discontinuance of the Services.
 
3. USER'S REGISTRATION OBLIGATIONS
 
User must be at least thirteen (13) years old to register for the Services. In consideration of use of the Services, User agrees to: (a) provide true, accurate, current, and complete information about User as prompted by the registration form; and (b) to maintain and update this information to keep it true, accurate, current, and complete. If any information provided by User ("Registration Data") is untrue, inaccurate, not current, or incomplete, Company and Client have the right to terminate User's account and refuse any and all current and/or future use of the Services.
 
4. USE OF REGISTRATION DATA
 
User acknowledges that Registration Data is to be shared between Company and Client. Company and Client agree not to contact User if User informs Company of User's preference not to be contacted. Company shall inform Client if User states a preference not to be contacted. However, Company shall not be responsible or liable if Client contacts User, permits a third party to contact User, or provides or discloses User's Registration Data to any third party.
 
User agrees that Company, Client, or a designee of Company or Client may disclose Registration Data to third parties about User and information about User's use of the Services, provided that such disclosures do not include User's name, mailing address, email address, telephone or facsimile number, or account number, unless: (a) such disclosure is required by law or legal process; or (b) User violates any of the terms set forth in Section 7 below.
 
This Agreement includes the terms and conditions of Company's Privacy Policy, a copy of which is located at http://www.whatbird.com/privacy/privacy_statment.aspx, and which is hereby incorporated by reference. In the event that there exists any inconsistency between this Agreement and the Privacy Policy, the terms and conditions of the Privacy Policy shall take precedence.
 
5. USER CONTENT
 
Company and Client consider email transmitted via the Services to be the private correspondence of the sender. Neither Company nor Client will monitor, edit, or disclose the contents of a User's private communications, except that User agrees that Company, Client, and their third party service providers may do so: (a) as required by law; (b) to comply with legal process; (c) if necessary to enforce this Agreement; (d) to respond to claims that such contents violate the rights of third parties; or (e) to protect the rights or property of Company, Client, its third party service providers, or others.
 
User acknowledges that content posted to public community areas is publicly available and that Company does not take any responsibility for such content. However, Company reserves the right to remove any public content posted by a User that violates any law or condition of this Agreement, upon notice of such violation.
 
User understands and agrees that technical (and sometimes manual) processing of email communications, search requests, community postings, and any other information supplied by User is and may be required: (a) to send and receive messages; (b) to conform to the technical requirements of connecting networks; (c) to conform to the limitations of the Services; or (d) to conform to other, similar technical requirements.
 
User acknowledges and agrees that Company, Client and their third party service providers do not endorse the content of any User communications and are not responsible or liable for any unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, obscene, indecent, tortious, or otherwise objectionable content, or content that infringes or may infringe the intellectual property or other rights of another.
 
6. USER NAME, MEMBER ACCOUNT, PASSWORD AND SECURITY
 
User will be asked to choose the first part of its user name, which will be followed by the "@" symbol and Client's domain name (Example: YourNameHere@Example.com). User agrees to choose a user name which is unique, not obscene, unlawful, or otherwise objectionable, in Company's sole discretion. Company shall own User's complete user name.
 
User will receive a designated password and account upon completing the registration process for the Services. User is responsible for maintaining the confidentiality of the password and account, and is fully responsible for all activities that occur under User's account. User agrees to immediately notify Company of any unauthorized use of User's password or account or of any other breach of security.
 
7. USER CONDUCT
 
User agrees to abide by all applicable local, state, national, and international laws and regulations during use of the Services, and agrees not to interfere with the use and enjoyment of the Services by other users. User agrees to be solely responsible for the contents of User's private and public communications, whether uploaded, posted, emailed, or otherwise transmitted through the Services.
 
User agrees: (a) not to use the Services for illegal purposes; (b) not to interfere with or disrupt the Services or servers or networks connected to the Services; (c) to comply with all requirements, procedures, policies, and regulations of networks connected to the Services; (d) not to resell the Services or use of or access to the Services; and (e) to comply with all applicable laws regarding the transmission of technical data exported from the United States.
 
User agrees not to upload, post, email, or otherwise transmit through the Services: (a) any unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, obscene, indecent, tortuous, or otherwise objectionable material of any kind; (b) any material that violates the rights of another, including, but not limited to, the intellectual property rights of another; (c) any material that violates any applicable local, state, national, or international law or regulation; or (d) unsolicited or unauthorized advertisements, promotional materials, "junk mail," "spam," "chain letters," or other forms of solicitation. User agrees not to attempt to gain unauthorized access to other computer systems or networks connected to the Services. User acknowledges and agrees that Company may ban User from future use of the Services if User does not comply with Company's standards of conduct, even if User attempts to use the Services through another Client or under a different name. Furthermore, User acknowledges and agrees that Company may recover damages from User if User violates these terms.
 
8. INDEMNITY
 
User agrees to indemnify and hold Company, Client, and their third party service providers, and their 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 User's use of the Services, User's connection to the Services, User's violation of this Agreement, or User's violation of any rights of another party.
 
9. STORAGE OF COMMUNICATIONS
 
Company, Client, and their third party service providers assume no responsibility for the deletion or failure to store email messages, communications, or other content maintained or transmitted through the Services. Company may establish in its sole discretion an upper limit on the extent of message storage it will maintain for User.
 
10. TERMINATION
 
(a) User agrees that Company, Client, or their third party service providers may terminate User's password, account, or use of the Services if Company, Client, or their third party service providers believe: (i) that User has violated or acted inconsistently with the letter or spirit of this Agreement; or (ii) that User has violated the rights of Company, Client, or their third party service providers or other Users or parties. User further agrees that Company, Client, and their third party service providers may terminate User's password, account, or use of the Services if User a.) fails to use the Services at least one time within seven (7) days after initial registration (the "Initial Period"); or b.) fails to use the Services at least one time during any consecutive 30-day period following the Initial Period.
 
(b) User agrees Company and Client may immediately delete User's account and all related information, communications, and files, and may bar any further access to such account, communications, files, or the Services under any provision of this Agreement. User also acknowledges and agrees that termination of any of the Services may be effected without prior notice.
 
11. LINKS
 
The Services may provide, or users may include in email or community postings, links to other Web sites or resources. However, User agrees not to include in email or community postings (or elsewhere via the Services) any "deep link" which leads to a web page, other than the home page, of another party's web site unless such a link is authorized by the owner of that web site. User acknowledges and agrees that Company, Client, and their third party service providers are not responsible for the availability of such external sites or resources, or for User's use of deep links, and that Company, Client, and their third party service providers do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources.
 
12. COMPANY'S PROPRIETARY RIGHTS
 
User acknowledges and agrees that content, including, but not limited to, text, software, music, sound, photographs, graphics, video, or other material contained in sponsor advertisements or information presented to User through the Services or third party advertisers is protected by copyrights, trademarks, service marks, patents, or other proprietary rights and laws. User acknowledges and agrees that User is permitted to use this material and information only as expressly authorized by Company, Client, or advertisers, as applicable, and may not copy, reproduce, transmit, distribute, or create derivative works of such content or information without such express authorization.
 
13. DISCLAIMER OF WARRANTIES
 
(a) USER EXPRESSLY AGREES THAT USE OF THE SERVICES IS AT USER'S SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.
 
(b) COMPANY, CLIENT, AND THEIR THIRD PARTY SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
 
(c) COMPANY, CLIENT, AND THEIR THIRD PARTY SERVICE PROVIDERS MAKE NO WARRANTY THAT THE SERVICES WILL MEET USER'S REQUIREMENTS OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES COMPANY, CLIENT, OR ITS THIRD PARTY SERVICE PROVIDERS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.
 
(d) USER UNDERSTANDS AND AGREES THAT ANY INFORMATION, CONTENT, DATA, OR OTHER MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH OR FROM THE SERVICES IS OBTAINED AT USER'S OWN DISCRETION AND RISK, AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER'S COMPUTER SYSTEM OR ANY LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
 
(e) COMPANY, CLIENT AND THEIR THIRD PARTY SERVICE PROVIDERS MAKE NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES.
 
(f) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM COMPANY, CLIENT, OR THEIR THIRD PARTY SERVICE PROVIDERS, OR THROUGH OR FROM THE SERVICES, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
 
(g) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO SOME USERS.
 
14. LIMITATION OF LIABILITY
 
(a) USER AGREES THAT COMPANY, CLIENT AND THEIR THIRD PARTY SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICES, OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED, OR FROM MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES, OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF USER'S TRANSMISSIONS OR DATA, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA, OR OTHER INTANGIBLES, EVEN IF COMPANY, CLIENT, OR THEIR THIRD PARTY SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
 
(b) USER FURTHER AGREES THAT COMPANY, CLIENT, AND THEIR THIRD PARTY SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM INTERRUPTION, SUSPENSION, OR TERMINATION OF SERVICES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL, OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION, OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT.
 
(c) User acknowledges that Pursuant to Section 512 of the Digital Millennium Copyright Act, Company has a policy providing for termination of Services to account holders who are repeat offenders. However, USER ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGES, WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF COMPLIANCE OR REASONABLE ATTEMPTS TO: (i) COMPLY WITH UNITED STATES COPYRIGHT ACT; OR (ii) SATISFY REQUIREMENTS TO QUALIFY FOR THE SAFE HARBORS DESIGNATED IN SECTION 512 OF THE DIGITAL MILLENNIUM COPYRIGHT ACT.
 
(d) IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY AND ALL MATTERS RELATING TO THIS AGREEMENT FOR ANY AGGREGATE AMOUNT IN EXCESS OF $50.
 
(e) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEREFORE SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SOME USERS.
 
(f) If you have chosen the virus scanner, please be advised that this virus scanner may not be able to detect or repair all viruses and variants, as new viruses and variants frequently appear. Please be aware that there is a risk involved whenever downloading email attachments to your computer or sending email attachments to others and that, as provided in the Terms of Service, neither WHATBIRD.COM nor its licensors are responsible for any damages caused by your decision to do so.
 
(g) WHATBIRD.COM may place limits on mail a user can send in a given period of time in order to protect the health of the company's network. Business Mail and Outsource Mail customers may contact their representatives for exemptions to this clause.
 
15. AMENDMENT
 
Company may modify this Agreement at any time, and such modifications shall be effective immediately upon posting or other method of notification to User, which notice may be provided on the Web pages through which User accesses or uses the Services. User's continued access or use of the Services shall be deemed to be User's conclusive acceptance of the modified Agreement.
 
16. GENERAL
 
Company's and Client's third party service providers are intended beneficiaries of this Agreement. Company shall not be liable to User for any breach by Client of this Agreement or the Privacy Policy. This Agreement and the relationship between User and Company and Client shall be governed by the laws of the State of California without regard to its conflict of law provisions. User, Company, and Client agree to submit to the personal and exclusive jurisdiction of the courts located within the state of California. The failure of Company, Client, and their third party service providers to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision and rule that the other provisions of this Agreement remain in full force and effect. User agrees 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 Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
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