Video Email The following describes the terms and conditions which Video Email offers access to Video Email. By using this website, you agree to comply with and be bound by the following terms of use, so please read this User Agreement carefully. If you do not agree to these terms and conditions, please do not register for or participate in Video Email. Introduction Welcome to Video Email. By using the services available from the domain and sub-domains of http://videoemail.com (the “Site”) you are agreeing to the following terms, including those available by hyperlink (the “Agreement” or “User Agreement”) with Video Email, Inc. and the general principles for the websites of our subsidiaries and international affiliates. If you have any questions, please refer to the Help section on the Site Before you may become a member of Video Email, you must read and accept all of the terms and conditions in, and linked to, this User Agreement and the Privacy Policy. Video Email strongly recommends that, as you read this User Agreement, you also access and read the linked information. Video Email may, in its sole discretion, modify or revise this User Agreement at any time, and you agree to be bound by such modifications or revisions. By accepting this User Agreement, you also agree that your use of other Video Email branded websites will be governed by the User Agreement and Privacy Policy posted on those websites The Video Email User Agreement contains our general terms and conditions relating to your use of Video Email. The Video Email Privacy Policy contains our policies relating to how Video Email collects, protects, and uses your personal information. In the event of an inconsistency between the Video Email User Agreement and the Video Email Privacy Policy, the Video Email User Agreement shall control. Nothing in this Agreement shall confer any rights or benefits upon a third party. This Agreement is effective May 1, 2007 for current users, and upon acceptance for new users. 1. Description of Service. Video Email is a free e-mail application. Users can record or upload audio, video and images, and create text messages from a computer and send to an e-mail address. In the future, users may also subscribe for other pay to use features. These descriptions constitute (the "Service"). You understand and agree that the Service may include content-targeted ads or other related information. You understand and agree that Video Email provides the Service on an AS IS and AS AVAILABLE basis. Video Email disclaims all responsibility and liability for the availability, timeliness, security, or reliability of the Service. Video Email also reserves the right to modify, suspend, or discontinue the Service with or without notice at any time and without any liability to you. 2. Personal Use. The Service is made available to you for your personal use only. You must be at least eighteen (18) years of age to use this Service You must provide current, accurate identification, contact, and other information that may be required as part of the registration process and/or continued use of the Service. You are responsible for maintaining the confidentiality of your user ID and password. Video Email shall not be responsible for unauthorized access resulting from a person without access privileges using your user ID and password. Video Email shall use their best endeavors to provide the Service on a 24/7 basis, except for (a) scheduled maintenance shutdowns, (b) unscheduled shutdowns to correct a fault or (c) power outages and other "Acts of God." Video Email shall not be responsible if you attempt to use the Service when it is not operating. Video Email reserves the right to deny the Service to anyone at any time for any reason and without notice. 3. Proper Use. You agree that you are responsible for your own Video Email communications and for any consequences thereof. Your use of the Service is subject to your acceptance of, and compliance with, the Agreement. You agree that you will not use the Service for any purpose that is unlawful or contrary to this Agreement. You also may not use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party's use and enjoyment of the Service. You agree that you will use the Service in compliance with all applicable local, state, regional, national, and international laws, rules and regulations, including any laws regarding the transmission of data exported from your country of residence. You are responsible for all activities that occur in your account and you agree to notify us immediately of any unauthorized use of your account. Video Email is not responsible for any loss that you may incur because of any unauthorized person using your account or your password. Without limiting the generality of the foregoing, you shall not use the Service to: i. Upload, transmit, publish or otherwise distribute any content that is unlawful, defamatory, libelous, harassing, abusive, hateful or harmful on the basis of religion, sexual orientation, disability, age, race, ethnicity or gender, constitutes or encourages a criminal offense, is fraudulent, harmful to minors, vulgar, pornographic, obscene, contains or is otherwise objectionable as reasonably determined by us; ii. Upload, transmit, publish or otherwise distribute any content that infringes another party's intellectual property rights, including copyrights, or other proprietary, contractual or fiduciary rights, privacy rights or other obligations; iii. Sell, trade, resell, advertise or otherwise promote, market, sell or exploit any item or service for commercial purposes unless approved in writing by the management of Video Email; iv. Publish messages or send e-mails that contain any unsolicited or unauthorized advertising, promotional materials, or any other form of solicitation, or that can be characterized as "junk mail," "spam," "chain letters," or "pyramid schemes"; iv. Disclose or transfer any Video Email account information; v. Commit a fraudulent or inappropriate act; vi. Send e-mails in violation of anti-spam laws; vii. Imitate or impersonate another person; viii. "Stalk" or otherwise harass another person; ix. Create false accounts; x. Prevent others from using the Service; xi. Send e-mails to persons who have requested not to receive them; xii. Send unsolicited e-mails to significant numbers of e-mail addresses belonging to individuals and/or entities with whom you have no pre-existing relationship; xiii. Do any act or thing that infringes Video Email intellectual property rights in the Service or otherwise causes us competitive harm; or xv. Do any other act or thing that violates the Video Email User Agreement or the Video Email Privacy Policy. If you violate any of the above conditions, Video Email may immediately cancel your right to use the Service, terminate the Agreement, subject you to state and federal penalties and hold you responsible for the legal consequences of your actions. If your membership is terminated because you have violated this Agreement, you shall not be entitled to a refund of any unused portion of subscription fees, should any exist. Video Email reserves the right, but shall have no obligation, to investigate your use of the Service in order to determine whether a violation of the Agreement has occurred or to comply with any applicable law, regulation, legal process, or governmental request. 4. Fair Use. All services offered free or under unlimited subscription are provided on a fair use basis. Video Email reserves the right to ask you to moderate your usage at any time if in the opinion of Video Email, your use is excessive and it is impacting on our ability to provide the Service to all customers. In the future, Video Email may introduce limits to the amount of free usage and offer high volume users the ability to upgrade to a paying plan. 5. Fees and Services. Joining Video Email and using Video Email is free. The fees schedule may change from time to time. Changes to that Policy are effective after Video Email provides you with at least fourteen days’ notice by posting the changes on the Site. Video Email may choose to temporarily change the fees for our services for promotional events or new services, and such changes are effective when Video Email posts the temporary promotional event or new service on the Site. 6. Content of the Service. Video Email takes no responsibility for any content published including, without limitation, any viruses or other disabling features, or third party content such as advertising or the content of audio, video, images, or text messages. Nor does Video Email have any obligation to monitor such content. Video Email shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any content that is available via the Service. Without limiting the foregoing, Video Email reserves the right to remove or refuse to distribute any content that violates this Agreement, or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content. Video Email also reserves the right to access, read, view, preserve, and disclose any information that Video Email reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process, or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security, or technical issues (including, without limitation, the filtering of spam), (d) respond to user support requests, or (e) protect the rights, property, or safety of Video Email, its users, and the public. Video Email will not be responsible or liable for the exercise or non-exercise of our rights under this Agreement. In the future, we may add ways for you to personalize the look of your message (we refer to the look of your message, including any image you use to personalize your message, as the “player skin”) including any image you use to personalize your message. When you personalize your player skin, you accept full responsibility for the form and content of any images, photos, text and other personal features. Without limiting the generality of the foregoing, you agree that you will not personalize your player skin to (a) impersonate another person, (b) defame, harass, ridicule, mock, abuse or offend another person, (c) include a pornographic or obscene photo or text, (d) infringe the copyright or intellectual property rights of a third party, or (e) in any other respect violate the conditions of "Proper Use" set out in clause 3. In the event of any violation, Video Email may deny you access to your account, revoke your right to use the Service, and take such other action as we deem necessary and appropriate. The personalized player skin used for a single message can not be changed after the message has been published. 7. Release. If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to existing in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” 8. Spam. Video Email is concerned about controlling unsolicited commercial e-mail, or "spam." We have a strict policy prohibiting the use of Video Email to send spam. Video Email will not sell, lease, or rent our subscriber lists to third parties. To further safeguard against spam, to preserve bandwidth, and to protect the integrity of the Service, we reserve the right to limit the number of times that a single message can be viewed. 9. Intellectual Property Rights. You acknowledge that Video Email owns all right, title, trademarks and interest in and to the Service, including without limitation all intellectual property rights (the "Video Email Rights"), and such Video Email Rights are protected by U.S. and international intellectual property laws. You further acknowledge and agree that content contained in sponsor advertisements or otherwise made available through the Service may be protected by applicable intellectual property and other laws and international treaties. Accordingly, you agree that you will not copy, reproduce, alter, modify, resell, or create derivative works or trademarks from the Service or third party advertisers. You also agree that you will not use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service. The Video Email Rights include rights to (a) the Service developed and provided by Video Email; (b) all software associated with the Service, and (c), all images, logos and trade marks associated with the Service. The Video Email Rights do not include third-party content used as part of the Service, including the content of communications appearing on the Service. Video Email does not claim any ownership in any of the content, including any text, data, information, images, photographs, music, sound, video, or other material, that you upload, transmit, or store in your Video Email account. Video Email will not use any of your content for any purpose except as permitted by this Agreement. In connection with User Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Video Email all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Video Email or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business: (v) impersonate another person. Video Email does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Video Email expressly disclaims any and all liability in connection with User Submissions. Video Email does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and Video Email will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. Video Email reserves the right to remove Content and User Submissions without prior notice. Video Email will also terminate a User's access to its Website, if they are determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had a User Submission removed from the Website more than twice. Video Email also reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. Video Email may remove such User Submissions and/or terminate a User's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion. 10. Use of Content Published to Video Email. For content you record or upload and send using Video Email, you represent that you own, or have the necessary license, consent or permission to use the content in that manner. You agree to allow such content be utilized by Video Email for use in analyses, reporting and marketing purposes. 11. Message Storage. Messages are stored on our servers indefinitely; however, this may change in the future. Messages in your trash may be deleted from the system within 24 hours. 12. Representations and Warranties. You represent and warrant that (a) all of the information provided by you to Video Email to participate in the Service is correct and current; (b) you have all necessary right, power and authority to enter into this Agreement and to perform the acts required of you hereunder; and (c) you are at least 18 years old. 13. Privacy. Video Email does not sell or rent your personal information to third parties for marketing purposes without your explicit consent. Video Email uses your information only as described in the Video Email Privacy Policy. As a condition to using the Service, you agree to the terms of the Video Email Privacy Policy, which may be updated from time to time. Video Email understands that privacy is important to you; and Video Email views protection of users’ privacy as a very important community principle. You do, however, agree that Video Email may monitor, edit, or disclose your personal information, including the content of your e-mails, if required to do so in order to comply with any valid legal process (such as a search warrant, subpoena, statute, or court order), or legitimate governmental request, to investigate a complaint or as otherwise provided in this User Agreement and the Video Email Privacy Policy. Personal information collected by Video Email may be stored and processed in the United States or any other country in which Video Email or their agents and service providers maintain facilities. By using the Service, you consent to any such transfer of information outside of your country. You can access and modify the information you provide us and choose not to receive certain communications by signing in to your account. Video Email uses third parties to verify and certify their privacy principles. For a complete description of how Video Email uses and protects your personal information, see the Video Email Privacy Policy. If you object to your information being transferred or used in this way, please do not use our services. 14. Advertisements. As consideration for using the Service, you agree and understand that Video Email will display ads and other information adjacent to, within the content, and/or related to the content of your e-mail. Video Email serves relevant ads using a completely automated process that enables Video Email to effectively target dynamically changing content, such as e-mail. No human will read the content of your e-mail in order to target such advertisements or other information without your consent, and no e-mail content or other personally identifiable information will be provided to advertisers as part of the Service. 15. Complaints. If you believe that an Video Email customer is using the Service in violation of our User Agreement and Privacy Policy, we encourage you to bring this matter to our attention immediately. Video Email shall investigate your complaint in a conscientious and reasonable manner, commensurate with the seriousness of the violation and with due respect for the rights of the person the target of the complaint. Video Email may ask you to supply evidence in support of your complaint. Likewise, Video Email shall be obliged to investigate in the same manner complaints by third parties concerning your own use of the Service In particular, if you are a copyright owner or an agent thereof and believe that any User Submission or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): i. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; iii. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; iv. Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail; v. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and vi. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Video Email's designated Copyright Agent to receive notifications of claimed infringement is: Video Email, 368 S. Cheryl Lane, City of Industry, CA 91789, e-mail: copyright@VideoEmail.com, fax: 909-869-7250. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Video Email customer service at customerservice@VideoEmail.com. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid. 16. Security. Video Email employs security measures to safeguard your Video EEmail Video Email messages. These measures start with our own personnel policies. Video Email has strict internal operating procedures in terms of hiring staff, training staff, and limiting access to the Video Email servers. Our servers contain robust firewalls, capable of detecting and preventing unauthorized access in most cases. Video Email has installed network security software, including software designed to protect against viruses, Trojan Horses, worms, malicious code and spyware. Our servers automatically download the latest network security patches. Video Email follows standard industry back-up procedures. Video Email believes that, through the foregoing procedures, Video Email has reduced the risk of security breaches resulting from computer hackers, unlawful entry, unauthorized access, theft, disgruntled employees, and other fraudulent acts. However, no network is 100% secure and you accept the Service on the basis that Video Email is not liable for security breaches. 17. Account Inactivity. After a period of inactivity, Video Email reserves the right to disable or terminate a user’s account. If an account has been deactivated for inactivity, the e-mail address associated with that account may be given to another user without notice to you or such other party. 18. Publicity. Any use of Video Email’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features (“Brand Features”) must be in compliance with this Agreement or unless approved in writing by the management of Video Email. 19. Termination and Cancellation. You may cancel your use of the Services and/or terminate this Agreement with or without cause at any time by providing notice to Video Email at customerservice@VideoEmail.com. Video Email may at any time and for any reason terminate the Service, terminate this Agreement, or suspend or terminate your account. Video Email may take these actions without notice. Without limiting the generality of the foregoing, Video Email may terminate the Service or suspend your access to the Service for inactivity, meaning your failure to sign in to the Service for an extended period, as determined by Video Email. Upon termination of this Agreement, your right to use the Service immediately ceases. In the event of termination, Video Email will disable your account and may delete all your messages. Video Email will deny you access to your account or any files or other content contained in your account. However, residual copies of your messages or personal information may remain on the Video Email server. The termination of this Agreement shall not extinguish any clauses that are clearly intended to survive termination, including without limitation, clause 6 (Content of the Service), clause 9 (Intellectual Property Rights), clause 20 (Indemnification), clause 23 (Disclaimers); clause 24 (Limitation of Liability), and clause 25 (Non-Waiver). 20. Indemnification. You agree to hold harmless and indemnify Video Email, and its subsidiaries, affiliates, officers, agents, and employees from and against any third party claim arising from or in any way related to your use of the Service, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. In such a case, Video Email will provide you with written notice of such claim, suit or action. 21. No Agency. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. 22. Warranties. Video Email makes no warranties of any kind whether expressed or implied for the use of the service it provides. Video Email disclaims any warranty of merchantability of fitness for a particular purpose. Video Email will not be responsible for any damage suffered by you from using Video Email including, but not limited to, delays, misdeliveries, service interruptions, your or any other subscribers use of the service, recipients of customers’ Video Email Video Email messages use of the service, including negligence by Video Email or its suppliers and agents. 23. Disclaimers. YOU EXPRESSLY UNDERSTAND AND AGREE THAT: i. YOUR USE OF THE SERVICE IS ENTIRELY AT YOUR SOLE RISK. Video Email WILL NOT BE RESPONSIBLE FOR ANY DAMAGE SUFFERED BY YOU FROM USING THE SERVICE INCLUDING, BUT NOT LIMITED TO, DELAYS, MISDELIVERIES, LOST MESSAGES, SERVICE INTERRUPTIONS, USE OF THE SERVICE BY OTHERS, OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR SUPPLIERS AND AGENTS. ii. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. Video Email EXPRESSLY DISCLAIMS 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 iii. Video Email MAKES NO WARRANTY THAT (a) THE SERVICE WILL MEET YOUR REQUIREMENTS, (b) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (c) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (d) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (e) ANY ERRORS IN THE SERVICE WILL BE CORRECTED. iv. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY. 24. Limitation of Liability. Use of the Service is entirely at your own risk. While Video Email shall use all reasonable efforts to ensure a safe and secure environment for the transmission and storage of messages, Video Email accepts no liability for any security breaches, including without limitation, security breaches resulting from computer hackers, unlawful entry, unauthorized access, theft, disgruntled employees and other fraudulent acts. On rare occasions, messages will get lost, corrupted, or undelivered. Video Email accepts no liability for lost, corrupted, or undelivered messages, regardless of the cause. You agree that Video Email has no responsibility or liability for the deletion or failure to store any messages and other communications or other content maintained or transmitted by the Service. Video Email shall not be responsible for any failure, delay or interruption in your use of the Service, including without limitation: System crashes; computer malfunctions; hardware or software faults; system errors; security breaches; theft; telecommunications problems; fire, flood, civil disturbance or any other event commonly referred to as an "Act of God.” To the extent allowed by law, Video Email disclaims all liability, whether in contract or tort, for any loss or damage arising from your use of the Service, including the suspension or interruption of such use, or the termination of such use pursuant to this Agreement. In any case, our maximum liability for damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) will (a) not exceed the actual dollar amount that you paid during the 12-month period prior to the date of the event giving rise to such liability, and (b) not include any incidental, consequential, exemplary or punitive damages, including without limitation, damages resulting from lost messages, undelivered messages, deleted messages, loss of revenues, profits, goodwill, time or savings. You acknowledge that Video Email has fixed charges based upon the limitation of liability in this clause. Nothing in these terms is intended to derogate from any rights users may have under any statutory or legislative provision. 25. Non-Waiver. If Video Email fails to insist upon strict performance of any obligations by you, or if Video Email delays in exercising any of our rights or remedies under this Agreement, our failure or delay shall not constitute a waiver or variation of such obligations or a waiver of any such rights or remedies. 26. Modifications. Video Email reserves the right to update or change this User Agreement from time to time to reflect changes in the Service, changes in the laws affecting the Service, or for other good reasons. You are responsible for regularly reviewing these terms and conditions, and any updates and changes thereto, on the Video Email website. Continued access to, or use of, the Service after any such update or change shall constitute your consent to such update or change. Unless explicitly stated otherwise, any new features that change or improve the Service shall be subject to this User Agreement, as modified from time to time. 27. Severability. Each clause in this Agreement is severable in whole or in part. If any clause is determined to be illegal or unenforceable for any reason, Video Email reserves the right to modify such clause, but only to the extent necessary to make it legal and enforceable. If modification is not possible without materially altering the intent of the clause, Video Email shall sever such clause from this Agreement and, if possible, adopt such other means to reflect our original intent. Notwithstanding such severance, the balance of this Agreement shall continue in full force and effect as if such severed clause was never a part thereof. 28. Choice of Law; Jurisdiction. This User Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to its conflict of law provisions or your actual state or country of residence. Any claims, legal proceeding or litigation arising in connection with the Service will be brought solely in Los Angeles County, California, and you consent to the jurisdiction of such courts. Video Email may amend this Agreement at any time by posting the amended terms on the Site. Except as stated elsewhere, all amended terms shall automatically be effective 30 days after they are initially posted on the Site. Additionally, Video Email will notify you through the Site’s message center tools. This Agreement may not be otherwise amended except in a writing signed by you and us. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. ®VideoEmail Inc. All Rights Reserved.