IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, PLEASE DO NOT REGISTER FOR OR USE ANY OF THE SERVICES.
YouMail reserves the right at any time to modify the Terms or this Agreement and to impose new or additional terms or conditions on your use of Services. YouMail may notify you of any such change by sending an email message to your email address on your YouMail account or by a posting on the Website requiring your assent. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the Services will be deemed acceptance thereof.
You can review the current Terms at any time at: https://www.youmail.com/terms.
Please review the YouMail Privacy Notice (https://www.youmail.com/privacy), which also governs your use of the Services, to understand our practices. The YouMail Privacy Notice is a part of the Terms and this Agreement.
2. Registration Restrictions and Obligations
You affirm that you are over the age of 13, as the Services are not intended for persons under 13. If you are under 13 years of age, your use of the Services is prohibited.
In consideration of your use of the Services, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Services under the laws of the United States or any other applicable jurisdiction. If you provide any information that is untrue, inaccurate, incorrect or incomplete, or YouMail has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, YouMail has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
Upon completing the registration process, you will receive a YouMail account and a password and/or PIN. You are responsible for maintaining the confidentiality of your password/PIN and are fully responsible for all activities that occur under or via your account. You agree to notify YouMail immediately of any unauthorized use of your account or any other breach of security.
Without limiting any other provision of the Terms and this Agreement, YouMail cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 2.
3. REGISTRATION; TERMINATION
To subscribe (opt-in) to any of the Services, you can register for a YouMail account from our Website, our mobile applications, or our mobile Website(s). YouMail accounts are based on telephone numbers and must be created with your real identity and with a telephone number owned by you. YouMail reserves the right to change account information that may be considered misleading, false, or in conflict with data from industry standard telephone number and name databases from carriers and other standard sources.
You may terminate your YouMail account and access to the Services by logging into the Website, clicking the link that says "Close Your Account", and following the instructions.
You agree that YouMail may, without prior notice, immediately terminate, limit your access to, or suspend, your account and access to the Services. Cause for such termination, limitation of access or suspension shall include, but not be limited to (a) breach or violation of the Terms or other incorporated agreements or guidelines, (b) a request by law enforcement or other government agency, (c) discontinuance or material modification to the Services (or any part thereof), (d) unexpected technical or security issues or problems, (e) extended periods of inactivity, (f) engagement by you in fraudulent or illegal activities, (g) nonpayment of any fees owed by you in connection with the Services, and/or (h) participation by you in any way in any legal action or claim against the Company. Further, you agree that all terminations, limitations of access and suspensions for cause may be made in YouMail's sole discretion and that YouMail shall not be liable to you or any third-party for any termination, limitation, or suspension, of your account or access to the Services.
Termination, limitation, or suspension, of your account may include, at YouMail's sole discretion, any or all of the following: (a) removal of access to all or part of the offerings within the Services, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), (c) the playing of an “out of service” message to all parties who call your telephone number(s), and (d) the barring of any further use of all or part of the Services.
4. YOUMAIL'S VOICEMAIL SERVICE
One of the Services is the YouMail Voicemail Service. This Service provides a number of "automatic extensions" to traditional voicemail services, and these extensions may have an impact on you or your callers with respect to privacy matters or telephone carrier service usage and related charges. YouMail generally makes these features "opt-out" and generally provides settings to customize their behavior and/or turn them off, though YouMail is not responsible to provide any ability for users to customize or limit any Service.
These extensions include, but are not limited to:
- "Smart Greetings", which allows customized greetings depending on who is calling you and automatically greets your callers with both your name and their name. Smart Greetings can be overridden by your selection of a greeting that you or someone else has recorded.
- "Auto replies", which under certain circumstances (a) provides callers a text message confirming to callers that they have left a voicemail message successfully, (b) may include a custom message, and (c) permits callers to see and modify the information shown with respect to their caller ID. You can opt-out or customize aspects of who receives auto replies from you and under what conditions.
- "Message sharing", which allows you to share messages by providing a URL to that message, where the voicemail can easily be played by anyone with knowledge of that provided URL. There is a YouMail privacy setting that can make your voicemails "un-shareable".
- "Smart Blocking", which automatically plays an "out of service" message to phone numbers that YouMail deems to be problematic or that are on a user-created and maintained block list, and which automatically places in a spam folder messages from phone numbers deemed by YouMail to be sometimes problematic. You can use a YouMail setting to control this behavior, and you can allow list individual phone numbers to ensure that such numbers are never blocked or put into a spam folder when they call you.
YouMail's voicemail service is not static and continues to evolve over time, with new features and changes to how existing features behave. YouMail reserves the right at any time to modify, limit, suspend, or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that YouMail shall not be liable to you or to any third-party for any modification, limitation, suspension or discontinuance of the Services (or any part thereof).
YouMail will use reasonable efforts to notify you of certain changes that would likely materially affect you or your callers' experience with the Services. These notifications, as well as service announcements and/or administrative messages will be sent to your email address provided to and kept on file with YouMail, and you agree that you will keep such email address accurate and up to date, and that any email notification sent to such address shall be deemed suitable notice of such changes. You also agree that a similar voice-message notice from YouMail left for you in your voicemail inbox will also be deemed suitable notice of such changes.
5. YOUMAIL AS YOUR AGENT
You agree that YouMail is your "agent" for answering and responding to calls, and fully operates on your behalf, as if YouMail were your personal secretary. YouMail therefore relies on your continuing representation that you have obtained, and that YouMail, as your agent, holds at all times, all necessary permissions to (a) answer all incoming calls to telephone numbers you forward to, or obtain from, YouMail, (b) access any and all contact information you provide, (c) take messages, (d) deliver messages to the email address you provide, and (e) send text or email messages to you and to your callers in response to any call or voicemail. Further, if you add additional phone numbers from YouMail, YouMail has permission to make outbound calls and send and receive text messages on your behalf.
You also agree that YouMail is your "agent" for blocking and/or otherwise answering unwanted or illegal phone calls, and that YouMail may block a call by any means, including, but not limited to, by suppressing the ring and/or ring notices on your phone, by playing an “out of service” message, or by taking messages and routing them to a spam folder. Further, you agree that (a) YouMail may decide as your agent which calls to block and how to block them while providing you mechanisms to customize YouMail's behavior, and (b) YouMail may analyze captured audio and/or messages and associated calling and called numbers and use these data to identify and block calls made to others, as well as to share these findings and your underlying data with telephone service providers, enforcement authorities, and others for the purpose of preventing and/or prosecuting illegal or unwanted calls being made to you, other YouMail users, or any other person or entity that might be the recipient of such calls.
6. STANDARD AND PREMIUM SERVICES; ABUSE OF THE SERVICES
YouMail provides a rich set of features and capabilities in its standard services. YouMail does not charge for the standard Services or to become a Registered User.
YouMail also offers services and features that require explicit agreement to fees prior to the use of such service or feature ("Premium Services"). Examples of Premium Services include certain greetings recorded by artists and/or professional voice talent (which may have an associated fee for usage), plans that provide access to YouMail's professional automated virtual receptionist, plans that include voicemail transcription services, and other offerings that YouMail may make available as "fee-based" offerings. No fee payable to YouMail will ever be charged to you unless you have taken specific action to order the Premium Service in question.
The standard Services are solely for your personal, non-commercial use. Users using any of the Services for commercial purposes are required to select and pay for one or more of the Premium Services.
YouMail’s Services are designed for use by a single user and may not be used for any purpose other than as expressly identified by YouMail. Without limiting the foregoing, YouMail Services never include the right to scrape data from, or to reproduce, reconstruct or “reverse engineer”, any portion of, YouMail’s databases or derived data, or to test telephone numbers to learn if such telephone numbers are being blocked or identified as suspicious by YouMail. Any of the foregoing, and any use not expressly identified by YouMail in this Agreement or in a separate signed agreement with YouMail, is an “Abuse of the Services”. The price and availability of Premium Services are subject to change without notice, and YouMail reserves the right to limit any product sold, or prohibit a sale altogether, at any time. YouMail also reserves the right to reject or cancel orders that use a coupon code obtained in violation of any coupon restriction.
Subscriptions to any Premium Service may be cancelled at any time. All cancellations and downgrades are processed automatically. All Premium Services are prepaid for the period selected (monthly, yearly or otherwise) and are non-refundable, both for the initial purchase and subsequent monthly and annual renewals, except that if a specific plan offers a “risk-free guarantee” for a specific time period to the subscriber, YouMail will provide a refund upon the subscriber’s request to YouMail for such a refund within the risk-free time period if (a) this is the first order of a given Premium Service by a given individual or entity, (b) no phone number associated with such plan has been ported into or out of YouMail, and (c) the order was not made via an in-app purchase mechanism billed through an iOS or Android app store.
YouMail may, as part of various services and features, provide additional phone numbers to an individual user account, which include personalized access numbers and secondary phone numbers. Those phone numbers may be ported to an alternative carrier, however:
- A phone number may only be ported from YouMail while there is an active, premium YouMail subscription that includes that phone number, and no numbers may be ported during any "free trial" or "risk-free trial" period.
- YouMail may charge a service fee for porting numbers from YouMail to an alternative carrier; In these cases, such "port-out" fees must be paid prior to completing the porting of the number.
- In cases, where the phone number to be ported was obtained via YouMail, YouMail may charge you an additional fee for replacing the ported number with a substantially similar phone number.
Except as prohibited by law, we may assess late charges if you do not pay on time. You must pay these late charges when we bill you for them. The late charge will be calculated and applied each month at the lesser of one percent (1%) of the unpaid amount per month or the maximum rate permitted by law. We may use a third-party to collect past-due amounts. You must pay all costs we incur to collect any past-due amounts, including reasonable attorneys' fees and other legal fees and costs. We may suspend or cancel your Services if you fail to pay all amounts owed to YouMail in full and on time.
7. LIMITATIONS ON USAGE
YouMail provides the Services on a limited basis that permits reasonable usage of the Services by you.
YouMail may choose at any time to modify and/or enforce such limitations at its sole discretion. Reasonable usage may be defined as the average reasonable customer usage levels of any Service or feature, the usage limits explicitly communicated at or after the time of purchase, or YouMail's own determined levels of usage. YouMail reserves the right to terminate any Service, change packaging and pricing, or otherwise take any action as necessary to prevent customer abuse and/or inappropriate or unauthorized use of Services, including without limitation Abuse of the Services. You acknowledge that YouMail may establish general practices and limits concerning use of the Services, including, without limitation, the maximum number of days messages are retained, the maximum number of messages retained, the maximum number of calls made and/or answered and/or forwarded and/or texts sent or received, the maximum storage space allotted with respect to Services on your behalf, the maximum number of times (and the maximum duration for which) you may access YouMail, and the maximum number of minutes used by the Service on your behalf, including, but not limited to, to play greetings, record messages, make phone calls, and the like. You agree that YouMail has no responsibility or liability for the deletion of, or failure to store, any messages and/or other communications.
You acknowledge that YouMail has the right to delete accounts that are inactive for an extended period of time or that YouMail determines, in its sole discretion to be involved in an Abuse of the Services, as well as to remove all information associated with those accounts, such as but not limited to stored voicemails, call history, and settings. YouMail considers any account to be inactive if it does not have a record of at least one the following activities within a 90-day period: (a) a customer or application login and/or active session for that account, (b) a received voicemail or missed call, or (c) a payment to the account.
8. POTENTIAL SERVICE-PROVIDER CHARGES; AVOIDANCE OF SUCH CHARGES
YouMail supports AT&T, Verizon Wireless, Sprint and T-Mobile, as well as many other U.S. carriers (the "Cellular Providers"). Standard airtime, text and data charges of your cellular provider and the cellular providers of your callers may apply when interacting with the Services. It is generally possible for you to minimize or eliminate charges from your cellular provider in connection with the Services, which may relate to three areas: telephone access number access, data connectivity, and text messages.
- Access Numbers. YouMail's Voicemail Service provides you with a YouMail telephone access number to which your missed telephone calls are forwarded, as well as a YouMail telephone access number you can call to retrieve your messages (which number may be the same for any given user). When calls are forwarded to a YouMail telephone access number or you call to retrieve messages, normal toll and/or long distance and plan minute usage may apply. To reduce the chance of unexpected charges, we strongly recommend you have a "nationwide" plan that includes sufficient minutes to account for any incremental forwarding or retrieval call minutes. We also recommend retrieving messages online via YouMail’s desktop or mobile website or through our mobile apps whenever it is convenient.
- Data Connectivity. YouMail's mobile apps require a data connection to our servers to operate. We recommend that you have a data plan that covers your data usage to avoid incremental charges for data use.
- Text Messages. YouMail provides features that can result in text messages being sent to your phone, which may result in additional Cellular Provider charges. For example, under certain circumstances, you can have YouMail send text messages to your phone when a new voicemail or missed call occurs ("Text Alerts"). If you use these features, we recommend that you have a text-messaging plan that includes enough text messages to avoid unexpected "per text" text-message charges from Text Alerts.
Anyone may text "STOP" from any mobile phone to any phone number used by YouMail to send a text message and YouMail will not be able to send that phone any further text messages for any purpose, beyond a single confirmation text. Alternatively, you can control what text messages are sent from the "Settings" section of the Website.
Based upon certain user-controlled settings, YouMail may generate text messages to your callers, such as replying to incoming calls with a text message to the caller, either individually or by using "Auto Replies". This may result in Cellular Provider charges for both you and your callers. By using these features, you are representing that we are acting as an intermediary on your behalf and at your request in sending these text messages, as part of our acting as your agent for answering and responding to calls. YouMail is not responsible for any third-party fees (including but not limited to airtime, text or data charges) incurred by you or your callers.
9. HELP AND SUPPORT
Users of YouMail's non-Premium Services have access to community-based support, along with "answers to common questions" through the "Help" link on the Website and mobile applications. You may report bugs, problems or complaints to [email protected]. YouMail does not guarantee communications from non-Premium Service users will be responded to and/or acted upon.
Users of YouMail's Premium Services have access to various additional levels of support, including live customer support that may be accessed via phone at 1-800-374-0013 or email at [email protected]. Customer support is staffed Monday through Friday from 9:00am to 5:00pm Pacific Time.
10. NO REUSE OR RESALE OF SERVICES
By registering and/or using the Services, you agree that you will not reproduce, duplicate, copy, sell, resell, make available for gain or exploit for any commercial purpose, any portion of the Services, use of the Services, or access to the Services, without an express and specific written commercial agreement with YouMail. Without limiting the foregoing, as identified elsewhere in this Agreement, such are, and may be deemed to be by YouMail in its sole discretion, to be an Abuse of the Services.
11. PROPRIETARY RIGHTS; INTELLECTUAL PROPERTY; INFRINGEMENT
The Company owns and retains proprietary rights in the Services. The Services contain and utilize copyrighted material, databases and derived data, trademarks, patented technology, and other proprietary information of the Company, its licensors and licensees, and are protected by intellectual property and other laws. The Company's property includes all content included on its websites or in its mobile applications or accessed through phone calls, including all text, graphics, logos, button icons, images, audio clips, digital downloads, data and content compilations, and software. You agree that all of YouMail's trademarks, trade names, service marks, logos and brands are property of YouMail (the "YouMail Marks") and that you will not, without the prior permission of YouMail, display or use the YouMail Marks in any manner.
You shall be solely responsible for any content you provide or publish in connection with the Services, including but not limited to greetings, incoming or outgoing messages and photographs. You affirm, represent, and/or warrant that: (a) you own or have the necessary licenses, rights, consents, and permissions to upload/record without restriction and without infringing the rights or any other party all such content; and (b) without limiting the foregoing, you have the written consent, release, and/or permission of each and every identifiable individual person in such content to use the name or likeness of each and every such identifiable individual person in such content. You, and not YouMail, are entirely responsible for all content that you upload, post, email, transmit or otherwise make available in connection with YouMail, the Services or otherwise.
12. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
THE COMPANY PROVIDES THE SERVICES TO YOU ON AN "AS IS" BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES. WITHOUT LIMITING THE FOREGOING, THE COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
THE COMPANY DOES NOT WARRANT THAT YOUR USE OF ANY OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, AVAILABLE, OR ERROR-FREE, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT ANY DEFECTS IN THE SERVICES WILL BE CORRECTED. THE COMPANY DISCLAIMS LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, THE CONNECTIVITY AND AVAILABILITY OF THE SERVICES.
13. MEMBER CONDUCT
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such Content originated. This means that you, and not YouMail, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available via YouMail, the Internet or otherwise. YouMail does not control the Content posted by users via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. You understand that by using the Services, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will YouMail be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services.
Moreover, you agree to not to commit any Abuse of the Services or to use the Services to:
- upload, post, email, transmit, or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable;
- harm any minor in any way;
- impersonate any person or entity, including, but not limited to, a YouMail official, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- upload, post, email, transmit, or otherwise make available any Content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange, or the NASDAQ, and any regulations having the force of law;
- make automated calls or texts that in YouMail’s sole judgment could violate any law or regulation, including without limitation, the Traced Act and the TCPA.
- provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
- "stalk" or otherwise harass another; and/or
- collect or store personal data about other users in connection with the prohibited conduct and activities set forth in paragraphs (a) through (h) above.
You acknowledge that YouMail has the right (but not the obligation), in its sole discretion, to remove any Content that is available via the Services. Further, you acknowledge that YouMail will not provide any refund if any part of your service is terminated or suspended in connection with a breach of this agreement.
You acknowledge, consent and agree that YouMail may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Content violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of YouMail, its users, and the public.
14. LIMITATION OF LIABILITY
WITHOUT LIMITING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL THE COMPANY OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THE USE OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF THE COMPANY KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL THE COMPANY'S AND ITS AFFILIATES’ AGGREGATE LIABILITY, ON ANY FORM OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, EXCEED THE PRICE PAID BY YOU TO THE COMPANY IN CASH IN CONNECTION WITH YOUR ACCOUNT. YOUR CORRESPONDENCE OR BUSINESS DEALINGS WITH, OR PARTICIPATION IN PROMOTIONS OF, ADVERTISERS FOUND ON OR THROUGH THE SERVICES, INCLUDING PAYMENT AND DELIVERY OF RELATED GOODS OR SERVICES, AND ANY OTHER TERMS, CONDITIONS, WARRANTIES OR REPRESENTATIONS ASSOCIATED WITH SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND SUCH ADVERTISER. THE COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES OR LOSSES RESULTING FROM ANY CORRESPONDENCE OR BUSINESS DEALINGS WITH THIRD-PARTY ADVERTISERS OR RESULTING FROM THE PRESENCE OF SUCH ADVERTISERS ON THE SERVICE.
15. INDEMNITY BY REGISTERED USER
You agree to defend, indemnify and hold harmless the Company, its officers, directors, employees, contractors, agents, attorneys and accountants from and against any and all claims, demands, losses, judgments, damages (including potential loss of revenue, harm to brand or corporate reputation, or increased expenses), and liabilities, actual and potential (including reasonable attorneys' fees), whether or not involving a third-party, that relate to or arise out of your use, mis-use, Abuse of the Services, or failure to properly use or limit any of the Services, including any breach by you of the Terms or this Agreement, or any result any of the foregoing may have on YouMail, or any of your callers or any other third party, including without limitation any violation of the rights of YouMail or any other person or entity.
16. NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement other than YouMail affiliates, officers, directors, employees, contractors, agents, attorneys and accountants.
FORCE MAJEURE. YouMail shall not be responsible for any failure to perform any obligation or provide service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, in any such case which are being experienced by providers of telecommunications services generally and not targeted or directed at YouMail specifically, or (d) other similar force beyond YouMail's reasonable control.
INTERPRETATION; AMENDMENT; WAIVER; SEVERABILITY. No provision of this Agreement or any exhibit or annex hereto shall be construed strictly against any party hereto, including, without limitation, the drafter hereof or thereof. No failure to exercise, and no delay in exercising and no course of dealing with respect to any right hereunder shall operate as a waiver thereof. Nor shall a waiver by any party hereto of a breach of any provision herein be deemed a waiver of any subsequent breach.
This Agreement and any terms expressly incorporated herein contain the entire Agreement between the parties relating to the subject matter covered and supersedes any previous agreements, arrangements, undertakings or proposals, written or oral, between the parties in relation to such matters. No oral explanation or oral information given by any party shall alter the interpretation of this Agreement. Each party confirms that, in agreeing to enter into this Agreement, it has not relied on any representation save insofar as the same has expressly been made a representation in this Agreement and agrees that it shall have no remedy in respect of any misrepresentation which has not become a term of this Agreement save that this clause shall not apply in respect of any fraudulent misrepresentation whether or not such has become a term of this Agreement. This Agreement may not be amended or modified other than (i) via a writing signed by a duly authorized representative of YouMail, or (ii) pursuant to YouMail's right at any time to modify the Terms or this Agreement, and to impose new or additional terms or conditions on your use of Services, as set forth in the forepart of this Agreement. A person who is not a party to this Agreement has no rights to rely upon or enforce any term of this Agreement. Nothing in this Agreement shall be construed as creating any agency, partnership or other form of joint enterprise between the parties.
The rights and remedies provided by this Agreement are cumulative, and the exercise of any right or remedy by either party hereto (or by its successor), whether pursuant to this Agreement, to any other agreement, or to law, shall not preclude or waive its right to exercise any or all other rights and remedies. The headings or titles of the several paragraphs of this Agreement are inserted solely for convenience and are not a part of, nor shall they be used or referred to in the construction of, any provision of this Agreement.
Words in the singular number shall include the plural, and vice versa. Whenever examples are used in this Agreement with the words "including", "for example", "any", "e.g.", "such as", "etc." or any derivation thereof, such examples are intended to be illustrative and not in limitation thereof. All references to the masculine, feminine or neuter genders shall mean and include all genders.
In case any one or more of the provisions contained in this Agreement for any reason shall be held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, any such provision(s) shall be severed, and such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement or any action in any other jurisdiction. Moreover, if one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad or unreasonable as to the period, scope or geographical area so as to be unenforceable at law, such provision or provisions shall be modified or substituted by the appropriate judicial body so as to cover the maximum period, scope or geographical area permitted by applicable law.
ASSIGNMENT; CHOICE OF LAW; VENUE. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of YouMail. This Agreement is personal to you, and may not be assigned or transferred to any other person or party. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California without giving effect to choice of law. For all disputes arising out of or relating to this Agreement or the Services that are heard in court (and not via arbitration), you and the Company irrevocably consent to the exclusive (and in personam) jurisdiction and venue of the state or federal courts in the City of Los Angeles and waive any objection based on improper venue or inconvenient forum.
NO RIGHT OF SURVIVORSHIP AND NON-TRANSFERABILITY. You agree that your account is non-transferable and any rights to your account or contents within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.
LIMITED TIME TO MAKE A CLAIM. You agree 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.
ARBITRATION; OPT-OUT; NO TRIAL BY JURY. Except if you opt-out pursuant to the procedure below, you agree that all disputes between you and YouMail (whether or not such dispute involves a third party) with regard to your relationship with YouMail, including without limitation disputes related to these Terms and/or your use of any Service, will be resolved by binding, individual arbitration under the American Arbitration Association's rules for arbitration of consumer-related disputes and you and YouMail hereby expressly waive trial by jury. As an alternative, you may bring your claim in your local "small claims" court, if permitted by that small claims court's rules. You may bring claims only on your own behalf. Neither you nor YouMail (with respect to you) will participate in a class action or class-wide arbitration for any claims or events covered by this Agreement. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person's account, if YouMail is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the matter, then either YouMail or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
You may opt out of this agreement to arbitrate. If you do so, neither you nor YouMail can require the other to participate in an arbitration proceeding. To opt out, you must notify YouMail in writing within 30 days of the date that you first became subject to this agreement to arbitrate. You must use this address to opt out:
- YouMail, Inc., Attn.: YouMail Arbitration Opt-out,
43 Corporate Park, Suite 200, Irvine, California, USA.
You must include your name and residence address, the email address and telephone number you use for your YouMail account, and a clear statement that you want to opt out of this agreement to arbitrate.
If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this arbitration section will be null and with respect to such matters. This agreement to arbitrate will survive the termination of your relationship with YouMail indefinitely.