eList eXpress - Service Agreement

eList eXpress

SERVICE AGREEMENT

THIS AGREEMENT WAS LAST UPDATED ON APRIL 7, 2001.

ACCEPTANCE THROUGH USE

By using our services, you agree to all the terms, conditions and notices contained in this Service Agreement, which may be updated from time to time. A complete description of our services and current pricing information can be found on our web site at <http://www.elistx.com/>. Please read this document carefully. If you do not agree to these terms, conditions and notices contained in this Service Agreement, do not use our services. By using our services, you are also certifying to us that you are at least 18 years old, and agree to be legally bound and to abide by this Service Agreement, just as if you had signed this Service Agreement.

MODIFICATIONS

We reserve the right, at our discretion, to modify, update or revise this Service Agreement at any time and in any manner. By using our services, you agree to familiarize yourself with this Service Agreement and to periodically review the current version at <http://www.elistx.com/> for changes. Your continued use of our services following modification to this Service Agreement shall be conclusively deemed as acceptance of such changes.

We may modify or discontinue our services at any time, with or without notice to you, without liability to you, any other user or any third party.

PASSWORDS

When registering to use our services you will select a unique password. You are responsible for maintaining the confidentiality of your password and are responsible for all uses of your password or account, whether or not actually or expressly authorized by you.

FEES AND PAYMENTS

Current rates for using our services are posted at <http://www.elistx.com/>. Fees and charges incurred in connection with your account will be billed to you according to the billing preferences you designated during the registration process. You agree to pay all fees and charges incurred in connection with your account at the rates in effect when the charges are incurred. We reserve the right to change or add any fees or surcharges at any time effective upon thirty (30) days' prior notice. You agree to pay all sales, use, value-added, personal property or other governmental taxes or levies imposed on the services billed to your account, other than taxes based on net income or profits of eList eXpress LLC. All fees and charges are nonrefundable. If we do not receive the full amount of your account balance within thirty (30) days of invoice date, an additional 1.5% (or the highest amount allowed by law, whichever is lower) late charge will be added to your bill and shall be due and payable. You also agree to pay for all attorney and collection fees arising from our efforts to collect any unpaid balance on your account. You are responsible for any fees or charges incurred to access our services through an Internet access provider or other third party service.

You agree to provide us with accurate, complete, and updated information required by the registration for our services, including legal name, address, telephone number(s), email address and applicable payment data. You agree to notify us promptly but in no event later than thirty (30) days of any changes in your registration data. Failure to comply fully with this provision may result in immediate suspension or termination of your account.

PROPRIETARY RIGHTS AND LIMITATIONS ON USE

You alone are responsible for the contents of messages communicated and stored when using our services as well as the consequences of any such messages. You agree that you will not use our services for chain letters, junk mail, "spamming" or to engage in illegal activities. You also agree that you will not through any third party send chain letters, junk mail, "spam" from, or engage in illegal activities through, any other on-line service in which the domain name, trademarks or service marks, or Internet address of eList eXpress are in any way associated, implicated or identified. You further agree not to falsify, forge or otherwise tamper with any portion of the header or tracking data of any message.

Only content that is not subject to any copyright or other proprietary rights protection, or content in which the author has given express authorization for on-line distribution may be distributed or transmitted on our services. We assume no liability for any damage resulting from any infringement of trademarks, service marks, copyrights, or other proprietary rights.

You further agree not to use our services to send, receive or store any message or material that is unlawful, could give rise to civil liability or otherwise violates our standards. We prohibit the transmission or storage through our services of any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable material of any kind, including, but not limited to, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law.

CONTENT

You understand that all information: data, text, software, music, sound, photographs, graphics, video, messages, or other materials, whether publicly posted or privately transmitted, are the sole responsibility of the person transmitting or posting such information. You are solely responsible for all information you transmit or store through our services. Any opinions, advice, statements, services, offers, or other information or content expressed or made available by third parties, including you, or any other user of our services, are those of the respective author(s) or distributor(s) and not of eList eXpress LLC. Neither eList eXpress LLC nor its members, managers, employees or agents guarantees the accuracy, completeness, or usefulness of any information distributed or stored through our services, nor its merchantability or fitness for any particular purpose.

Under no circumstances will eList eXpress LLC be liable for any loss or damage caused by reliance on any information obtained or distributed through our services.

eList eXpress LLC'S RIGHTS

We may disclose any content, records or electronic communications of any kind (i) to satisfy any law, regulation or authorized governmental request, (ii) if such disclosure is necessary to operate our services, or (iii) to protect our rights or property or those of our other users, or other third parties. We reserve the right to remove any recipient from any and all email lists upon such recipient's request or to refuse to transmit any email or other information to any intended recipient.

We may elect to electronically monitor communications through our services for adherence to this Service Agreement and/or our policies. We reserve the right to prohibit conduct, communication, or content that we deem in our discretion to be harmful to users or recipients, eList eXpress' or other third-party's rights, or to violate any applicable law. Notwithstanding the foregoing, we do not have the practical ability to restrict conduct, communication or content prior to transmission or storage on our services. Accordingly, we do not assume liability for any action or inaction with respect to conduct, communication or content on or through our services.

You agree that we may store the information you provided as part of the registration process, and provide aggregate statistical information about our customers to potential customers and other third parties. You may view our Privacy Policy at <http://www.elist.com/>. We reserve the right, at our sole discretion, to make exceptions to this policy in extraordinary circumstances on a case-by-case basis.

DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY

YOU UNDERSTAND AND AGREE THAT OUR SERVICES ARE PROVIDED ON AN "AS-IS", "AS AVAILABLE" BASIS. WE ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY OR FAILURE TO TRANSMIT OR STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

YOU UNDERSTAND AND EXPRESSLY AGREE THAT USE OF OUR SERVICE IS AT YOUR SOLE RISK. NEITHER eList eXpress LLC, NOR ITS MEMBERS, MANAGERS, EMPLOYEES, AFFILIATES, AGENTS, OR THE LIKE, WARRANT THAT OUR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OUR SERVICES, OR AS TO THE ACCURACY, RELIABILITY OR CONTENT OF ANY INFORMATION, OR SERVICE RECEIVED THROUGH OUR SERVICES.

WE DISCLAIM ALL WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF NON-INFRINGEMENT. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY eList eXpress LLC, ITS MEMBERS, MANAGERS, EMPLOYEES, OR AGENTS OR THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL YOU RELY ON ANY SUCH INFORMATION OR ADVICE.

UNDER NO CIRCUMSTANCES SHALL eList eXpress LLC, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR OPERATING OUR SERVICES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE OUR SERVICES INCLUDING, BUT NOT LIMITED TO, RELIANCE BY A USER OR ANY OTHER PARTY ON ANY INFORMATION DISTRIBUTED BY OR OBTAINED THROUGH OUR SERVICES; OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL OR MISDELIVERY, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO OUR RECORDS, PROGRAMS OR SERVICES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL INFORMATION OR SERVICES AVAILABLE THROUGH eList eXpress LLC. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS OUR LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

IN NO EVENT SHALL THE TOTAL LIABILITY OF eList eXpress LLC, ITS MEMBERS, MANAGERS, EMPLOYEES OR AGENTS, FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, OR OTHERWISE, EITHER JOINTLY OR SEVERALLY, EXCEED THE AGGREGATE DOLLAR AMOUNT PAID BY YOU TO eList eXpress LLC IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIMED INJURY OR DAMAGE. THE FOREGOING PROVISIONS OF THIS SECTION ARE FOR THE BENEFIT OF eList eXpress LLC, ITS MEMBERS, MANAGERS, EMPLOYEES, AND AGENTS, AND EACH SHALL HAVE THE RIGHT TO ASSERT AND ENFORCE THE PROVISIONS DIRECTLY ON THEIR OWN BEHALF.

INDEMNIFICATION

You agree to defend, indemnify and hold harmless eList eXpress LLC, its members, managers, employees, and agents from any claims and expenses, including reasonable attorney's fees, arising from your use of our service, any violation of this Service Agreement by you or by use of your account, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.

TERMINATION

We reserve the right, in our sole discretion and for any reason, to terminate your account, or your access to all or part of our services, with or without notice and without liability to you, any other user or any other third party.

Your only right with respect to any dissatisfaction with any (i) term or policy, guideline, or practice of eList eXpress LLC in operating our services, (ii) performance of our services or any change therein, or (iii) change in the amount or type of fees charged in connection with our services, is to terminate your account by delivering notice to us, effective the day we receive notification of termination or such specified future date as may be acceptable to us.

Upon termination of your account, you shall have no right to access any stored content or email and any such content or email will be forfeited. eList eXpress LLC shall have no responsibility to notify any third-party of such termination, nor for any consequences resulting from lack of notification. In the event of termination, we will make available to you, provided that you have paid the full amount of your account balance with us and are not otherwise in default of the terms of this Service Agreement, upon written request received by us within thirty (30) days of termination, electronic copies in the same format as originally distributed (without conversion or translation) of any email lists and email stored on our service under your account. Notwithstanding the foregoing, we will not make available copies of any stored email or email lists left unattended for more than ninety (90) days.

MISCELLANEOUS

In the event that any portion of this Service Agreement is held to be invalid or unenforceable, the invalid or unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Service Agreement shall remain in full force and effect. The paragraph headings herein are provided only for reference and shall have no effect on the construction or interpretation of this Service Agreement.

The failure of either party to insist upon or enforce strict performance by the other party of any provision of this Service Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of this Service Agreement.

This Service Agreement shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to its conflicts of law rules. Each party irrevocably consents to the exclusive jurisdiction of the courts of the State of Maryland and the federal courts situated in the State of Maryland in connection with any action arising under this Service Agreement or relating to our services. Any cause of action with respect to your account or our services must be commenced within one (1) year after the claim or cause of action arose or be barred.

You agree to comply with and shall be responsible for compliance with all applicable export laws and regulations. Users that access our services from outside the United States do so at their own initiative and are responsible for compliance with local laws.

This Service Agreement constitutes the entire and only agreement between eList eXpress LLC and you with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of this Service Agreement shall be effective only if in writing and signed by eList eXpress LLC.

This Service Agreement may not be transferred without our prior written approval and its transfer is subject to any conditions established by us.

We welcome questions, comments, and suggestions.