This Terms of Service ("TOS") is an agreement made between Packet Flip, LLC, whose website is found at http://www.packetflip.com ("Provider") and Customer:
Customer is the person or legal business entity, including, without limitation, its agents, employees, purported assignees and licensees, which has subscribed to the services of Provider ("Service" or "Services"). No other person is permitted to use the Service, whether by assignment, license, permission, or otherwise, on the part of Customer, or those who have gained unauthorized access via Customer to use Provider's Services. Customer is a legal business entity, and only those who are authorized employees or agents of Customer may use the Services. Any attempt by Customer to permit use by third parties, who are not employees and/or agents, is a breach of this TOS. Terms governing Provider's rights upon the occurrence of a breach is described in the paragraph under the heading "Breach".
Accurate Information Pertaining to User: Customer must provide complete and accurate name of itself, billing address, billing telephone number, and credit card or debit card information. In the case of credit card and debit card information, the information to be provided must include, without limitation, the issuer of the card, card number, card security code/card verification value, and expiration date.
Term: Customer agrees to a month-to-month term for Services unless otherwise agreed to in writing, by electronic mail, by instant messaging, or electronically via Provider's website. If the term for Service is month-to-month, the term is automatically renewed each month, unless Customer provides written notice of cancellation based on the terms provided below. If Customer has a term other than month-to-month, the term is automatically renewed for the same term, unless Customer provides written notice of cancellation based on the terms provided below.
Service Fees: Fees for Services ordered by Customer shall begin on the date of the order following Customer's execution of electronic signature after having read and accepted this TOS, and the schedule of fees and other information found at Provider's website, http://www.packetflip.com ("Website Information"), all of which are posted at Provider's website at http://www.packetflip.com.
Cancellation: Provider requires, and Customer agrees, a four (4) business day written cancellation notice prior to the anniversary billing date for discontinuance or downgrades of Services. Failure to supply the requisite four (4) business days written notice of cancellation shall result in a full billable cycle. Notice of written cancellation by Customer is to be given via online customer portal located at https://manage.packetflip.com.
Refunds: All Services rendered by Provider are non-refundable. This includes, but is not limited to: monthly or other periodic service fees, upgrade fees, and, if applicable, any additional service fees and/or administrative fees.
Disputes: Customer seeking to resolve any billing error shall initiate in writing an accounting ticket within forty-eight (48) hours of an alleged billing error via the customer portal located at https://manage.packetflip.com. Without being limited by the preceding sentence, Customer agrees not to seek reimbursement, chargeback or otherwise seek non-payment or reversal of any payment however made, without limitation, via credit card or otherwise for Services rendered. Any such action is a breach of this TOS. Terms governing Provider's rights upon the occurrence of a breach is described in the paragraph under the heading "Breach".
Non-Payment: All payments are due in full on the monthly or other periodic anniversary date, depending on the duration of Services agreed upon. Failure to remit payment for Services under this TOS on the monthly or other periodic anniversary date is a breach of this TOS. Provider may provide Customer with Services following a failure to pay, but is not obligated to, for two calendar days, including the anniversary date. Failure to remit payment by the third calendar day, which includes the anniversary date, shall result in termination of Services, without notice, to Customer, if not sooner terminated.
Medium of Payment: Payment shall be made on Provider's website via, Quantum Gateway, PayPal or Alert Pay.
Payment: Any and all payments set forth in this TOS are the sole responsibility of Customer. No other person shall be responsible for payments or making payments to Provider.
Compliance with Laws: Customer agrees to abide by all laws and regulations, foreign and domestic, local, state, and federal.
Third-party Contents: Customer acknowledges that Provider may provide third party websites on Provider's website, where such websites may provide information, videos, music, images, photographs, sounds, or other contents. Provider does not, directly or indirectly, endorse, agree, or otherwise support such websites or their contents. Customer agrees not to hold Provider liable or responsible for such contents or such websites.
Security of Customer Information: Customer understands and agrees that Provider cannot guarantee, assure, or promise that information or data of Customer held by Provider, transmitted during use via Provider's servers (including, without limitation, any and all transmissions to and from Customer via Provider's servers) or via Customer's use of Service, will not be compromised by unauthorized access. Without limiting any right of Provider as set forth under the heading "Indemnity", Customer holds Provider harmless in the event of any breach of security to Customer's data or information as described in this paragraph.
Security of Customer's Internet Protocol ("IP") Address: Provider cannot guarantee, assure or promise that Customer's IP address may not be compromised by third parties.
Age of Customer: Without limiting the provisions under the heading "Governing Law", Customer warrants and represents that it has reached the age of majority of 18 years of age, or such other age of majority based on laws applicable to the Customer's place of residence, and further represents and warrants that it has satisfied all other legal requirements for entering into contracts, including this TOS. In the event Customer has not reached the age of majority, Customer must exit Provider's website without executing this TOS.Indemnification: Customer agrees to indemnify, defend (attorney representing Provider shall be of Provider's choosing and paid for by Customer), and hold harmless Provider, Provider's affiliates, and each of Provider's officers, directors, owners, attorneys, accountants, agents, and employees from and against any and all claims, demands, liabilities, obligations, losses, damages, penalties, fines, punitive damages, amounts in interest, expenses and disbursements of any kind and nature whatsoever (including all attorneys' fees) brought by a third party against Customer under any theory of legal liability arising out of or related to Customer's conduct, in tort, contract, infringement of third party's rights of whatever nature or otherwise. Without limiting what is set forth under the heading "Assignment", this provision under the heading "Indemnification" applies to any person or entity, whether or not authorized by Customer, who uses Customer's user name, Internet Protocol address, i.e. IP address, or other Customer identifying information, to use the Services of Provider, Customer agrees that Provider may, but is not obligated to, at its sole discretion, select its own legal counsel, advance attorneys' fees, all subject to reimbursement in full by Customer. This indemnification provision survives the termination of this TOS with Customer.
No Access to Certain Websites: Customer is informed and agrees that it has no access to certain websites via Provider's services. The list of websites which may be denied access may be expanded by Provider at its sole discretion. Such decisions are final and are agreed to in advance by Customer. Any attempt to access such websites is a breach of this TOS. A list of websites currently prevented access is provided in Appendix A at the end of this TOS.
Use of Certain Software with Provider's Services is Prohibited: Customer is informed and agrees that it is prohibited from using certain software with Provider's Services. The list of software prohibited by Provider may be expanded by Provider at its sole discretion. Such decisions are final and are agreed to in advance by Customer. Any attempt to use such software is a breach of this TOS. A current list of such software is provided in Appendix B to this TOS.
Disclosure pursuant to Subpoena or similar forms of request: Provider may be required by law to provide Customer's information pursuant to subpoena or similar forms of request issued by a court, governmental entity or otherwise (referred to herein collectively as "Subpoena"). Information shall be disclosed as directed pursuant to Subpoena. Provider shall release information described in the Subpoena. If permitted by law, Provider will endeavor, but is not obligated, to notify Customer that it has received a Subpoena for records pertaining to Customer.
LIMITATION OF LIABILITY: Provider shall not be liable for failing to provide Service(s) resulting from any condition beyond its reasonable control, including, without limitation, governmental actions, governmental regulations, any acts of terrorism, armed military conflicts, earthquakes, fires, floods, natural disasters, other acts of God, labor conditions, power failures, Internet disturbances, and failures relating to computers (networks, software, and hardware), and telephone network or services. Provider shall not be liable to Customer for harm caused by or related to Customer's use of Services or inability to utilize the Services unless caused by gross negligence or willful misconduct on its part. Provider shall not be liable for temporary unavailability of Services arising from Provider making maintenance, upgrades, or unavailability for other reasons. Provider makes no warranties, expressed or implied, including implied warranties of title, merchantability, fitness for any particular purpose, or non-infringement. Provider cannot guarantee and does not promise any specific results from use of Provider's Services. Provider shall not be liable to Customer for lost profits (even if informed by Customer), direct or indirect, special or incidental, consequential or punitive damages, or damages of any kind whether or not known, made known to, or should have been known by Provider. Notwithstanding anything else in this TOS, the maximum aggregate liability of Provider and any of its employees, agents or affiliates, under any theory of law, whether sounding in tort, contract, or otherwise, shall not exceed the amount already paid by Customer for Services for the six months immediately prior to the occurrence of the event giving rise to the claim, provided that Customer has made full payment for that six-month period. In the event Customer has not paid for six months of Service, whether Customer's use has been of a lesser duration or due to a failure to pay, the maximum aggregate liability of Provider is reduced proportionately. This provision on limitation of liability shall survive the termination of this TOS with Customer.
ARBITRATION: Customer agrees that any controversy or claim arising from Services provided under or terms related to this TOS, whether sounding in tort, contract, or otherwise, shall be resolved by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Venue for arbitration shall be in San Francisco, California, U.S.A. If the amount in controversy is within the jurisdictional amount of the small claims courts of California, in which case the claim may be brought in the small claims courts of the California, venue being in and for the County of San Francisco. Customer waives all defenses based on lack of personal jurisdiction and forum non conveniens. In the event Provider should retain legal counsel regarding disputes, be they for arbitration, litigation, mediation, appeals, or otherwise, Customer shall reimburse Provider for all such expenses, including reasonable attorneys' fees, whether or not action is brought.
Collection Costs: In the event Provider should send a Customer's account for collection, due to charge-back, delinquency, dishonor of charges or otherwise, any and all expenses, charges, fees, collector's fees, and the like (referred to collectively herein as "Collection Costs") shall be borne by Customer and recouped by Provider from Customer. Provider shall be made whole both as to the fees it charges for services supplied or to be supplied, and all Collection Costs.
Assignment: This TOS may not be assigned by Customer. Any assignment is void. Customer is hereby informed that Provider may form a business entity, including, without limitation, a limited liability company. Upon such occurrence, Provider shall assign to such entity this TOS, Appropriate Use Policy ("AUP"), Website Information, Services, and all matters pertaining thereto. Provider may assign this TOS to third parties.
Appropriate Use Policy: Provider's AUP, which is posted at Provider's website at http://packetflip.com/aup.html, is incorporated herein by reference and made a part hereof. Customer represents and warrants that it has read, understood, and agreed to the AUP in its entirety before executing this TOS. A breach of that policy is a breach of this TOS.
Breach: A breach by Customer of any of the terms and provisions of this TOS, AUP, or Website Information, whether specifically stated therein as a breach, is a breach of this TOS. In the event of Customer's breach, Provider, at its sole discretion, may terminate the Service immediately and seek redress as provided in this TOS. The remedies provided in this TOS are in addition to remedies available to Provider in law and at equity. Without limiting that which is set forth under the headings of "Refunds" and "Disputes", in the event of a breach by Customer, there shall be no refunds, reimbursements, chargebacks, or otherwise.
Decline to Renew or Supply Additional Services: Without limiting any other provision in this TOS, Provider retains the right, at its sole discretion, to decline to supply additional Services to or renew Services with Customer or terminate Services to Customer.
Waiver of Rights: No failure to exercise, and no delay in exercising, on the part of Provider, of any right hereunder or at law or in equity shall operate as a waiver thereof. No modification or waiver of any provision of this TOS or AUP, or Website Information, nor consent to departure therefrom, shall be effective unless in writing, by electronic mail, by instant messaging, or electronically, and no waiver or modification shall extend beyond the particular case and purpose involved, and any waiver or modification does not constitute waiver as to Provider's rights in the future.
Severability: In the event any term or provision in this TOS is found by a tribunal of competent jurisdiction to be invalid, the remainder of the TOS shall remain in full force and effect.
Headings: Headings are for ease of reference and are not made a part of this TOS.
Gender: The use of words, without limitation, such as, "he", "she", "it", "they", "his", "hers", "its", or "theirs" shall include the masculine and the feminine, the singular and the plural.
Changes to TOS and other documents: Provider reserves the right to change at any time, without notice, the terms of this TOS, the AUP, the Website Information, or to add additional documents to its website. Provider will endeavor to provide notice to Customer of any changes or additions, but is not obligated to do so. Any notice which may be given will be given at http://manage.packetflip.com. Customer agrees to keep itself informed and to review regularly for any and all changes to this TOS, AUP, Website Information or other documents. Customer's continued use of the Service following such changes constitutes consent to such changes.
Incorporation by Reference: The terms, conditions, and provisions of Provider's AUP and Web Information are incorporated herein by reference and made a part hereof, as though they are fully set forth herein.
Governing Law: The laws of the State of California shall govern the interpretation and enforcement of this TOS, without consideration given to its conflict of laws.
Entirety of Understandings: This TOS, AUP, and Website Information embody all the understandings between Provider and Customer.
Read, Understood, and Agreed to this TOS: Customer represents and warrants that it has read, understood, and agreed to this TOS in its entirety before executing this TOS.
Electronic Signature: Customer agrees and accepts the terms and provisions of this TOS, AUP, and Website Information by selecting "Complete Order" on Provider's website. By selecting "Complete Order" on Provider's website, Customer agrees that it has authorized Provider to bill Customer for Services.
Websites to Which There is No Access Through Provider's Services
(As of December 2, 2011)
|AOL Webmail||mail.aol.com, webmail.aol.com|
|Hotmail/Live Webmail||mail.live.com, mail.services.live.com|
|My Year Book||myyearbook.com|
|Nothing But Software||nothingbutsoftware.com|
|TicketMaster||ticketmaster.com, ticketmaster.ca, ticketmaster.co.uk|
|Tru Med Canada||truemedcanada.com|
|White Pages||whitepages.com, whitepages.ca, phonenumber.com|
Software Prohibited in Use with Provider's Services
(As of January 10, 2011)
|ScrapeBox Blog Commenter|