IF YOU ACKNOWLEDGE AND ACCEPT THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT ("LICENSE") AND THE EFAX.COM TERMS OF SERVICE ("ETS") PROVIDED BELOW, CLICK "YES" BELOW AND CONTINUE TO INSTALL THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, CLICK "NO" BELOW.
SOFTWARE LICENSE AGREEMENT
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1. License. If you accept this License, eFax.com, Inc. ("eFax.com") hereby licenses to you one electronic copy of the computer program(s) you are about to install and related documentation (the "Software"). eFax.com retains all right, title and interest in and to the Software. That Software and all parts thereof are the subject matter of various proprietary rights, including without limitation copyrights, trade secrets, patents and other similar intellectual and industrial property rights ("Proprietary Rights").
This License permits you to use the Software on a single personal computer or workstation and to make one copy of the Software in machine-readable form for backup purposes only. Within any such copy, you must reproduce the copyright notices and any other proprietary legends that were on the original downloaded copy of the Software. No license, right or interest in any trademark, trade name or service mark of eFax.com or any third party is granted under this License. You acknowledge that neither this License, nor your subsequent registration of the Software (should you choose to register the Software, and thereby enable additional use or functionality), shall in any way be construed to provide an express or implied license to use, modify or improve any of the content of the Software, including without limitation any works, inventions, discoveries, technology or other items which are the subject matter of eFax.com's Proprietary Rights, or otherwise to use or exploit the Software or the Proprietary Rights in any matter not expressly permitted herein.
2. Restrictions. You may not attempt to create or derive any of the source code or other technology or data within the Software by disassembly, reverse engineering or any other method, or otherwise reduce the Software to a human-perceivable form. You may not modify or translate any part of the Software. You may not use, disclose, distribute, make or have made any copies of the Software, in whole or in part, nor rent, lease or lend the Software without the prior written authorization of eFax.com, provided, however, that you may maintain a backup copy of the Software during the term of this License. You agree to provide notice to eFax.com immediately after learning of or having reason to suspect a breach of any of the provisions set forth in this License.
3. Termination. This License is effective until terminated. You may terminate this License at any time by destroying the Software, and all copies thereof. This License will terminate immediately without notice from eFax.com if you fail to comply with any provision of this License. Upon termination, you must destroy the Software and all copies thereof.
4. Disclaimer of Warranty. REGARDLESS OF WHETHER YOU LATER CHOOSE TO REGISTER YOUR COPY OF THE SOFTWARE, THE SOFTWARE AND RELATED DOCUMENTATION ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, AND EFAX.COM EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, OR ANY WARRANTIES OF NON-INFRINGEMENT OF ANY THIRD PARTY'S PATENT(S), TRADE SECRET(S), COPYRIGHT(S) OR OTHER INTELLECTUAL PROPERTY RIGHTS. EFAX.COM DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.
Furthermore, eFax.com does not warrant or make any representations regarding the use or the results of the use of the software or related documentation in terms of their correctness, accuracy, reliability, or otherwise. No oral or written information or advice given by eFax.com or eFax.com's authorized representative shall create any warranty or in any way increase the scope of this warranty. Should the Software prove defective, you (and not eFax.com or eFax.com's authorized representative) assume the entire cost of all necessary servicing, repair or correction. Some states do not allow exclusion of implied warranties, so the above exclusion may not apply to you. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state.
5. Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL EFAX.COM BE LIABLE FOR ANY LOST REVENUE OR PROFITS OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE THE SOFTWARE OR RELATED DOCUMENTATION, EVEN IF EFAX.COM OR EFAX.COM'S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL EFAX.COM'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU FOR THE SOFTWARE.
6. Controlling Law. This License shall be governed by and construed in accordance with the substantive laws of the State of California, notwithstanding the conflicts of law provisions of that state or any other jurisdiction. All disputes arising out of this license shall be subject to the exclusive jurisdiction of federal and state courts located in Santa Clara County, California.
7. Complete Agreement. This License constitutes the entire agreement between the parties with respect to the use of the Software and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.
EFAX.COM TERMS OF SERVICE
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1. The standard eFax.com fax-to-email service, also known as eFax Free ("Standard Service" or "Service(s)"), owned and operated by eFax.com ("eFax.com"), are provided to you ("Member") under the terms and conditions of this eFax.com Terms of Service ("ETS") and any operating rules, policies, price schedules, or other supplemental documents which are expressly incorporated herein by a reference in this ETS and published from time to time by eFax.com. The ETS (which includes such expressly incorporated supplemental documents) comprises the entire agreement between Member and eFax.com and supersedes all prior agreements between the parties regarding the subject matter contained herein. Notwithstanding the foregoing, Members use of any software which is provided by eFax.com and may be related to the Service(s) shall be pursuant to a separate agreement governing Member's use of such software. BY COMPLETING THE INSTALLATION PROCESS AND CLICKING THE "I ACCEPT" BUTTON, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE ETS, INCLUDING, BUT NOT LIMITED TO, USE OF THE SERVICES IN COMPLIANCE WITH SECTION 11, MEMBER CONDUCT.
2. DESCRIPTION OF SERVICES
eFax.com is providing Member with a capability to receive fax documents using electronic mail ("email") pursuant to the terms set forth herein. Member must: (1) provide all equipment necessary to receive email; (2) provide its own email address to which the fax documents will be routed; and (3) provide for its own access to an email service and pay any access, service or other fees associated with such email services. In consideration for the Service(s), Member agrees to: (1) provide certain limited information about Member as prompted to do so by the Service (such information to be current, complete and accurate) and (2) maintain and update this information as required to keep it current, complete and accurate. The information requested on original sign up shall be referred to as registration data ("Registration Data"). Although eFax.com will take reasonable measures to exclude Member's name, mailing address, email address, account and phone number from any disclosures, eFax.com may (i) in certain cases where Member accesses eFax.com's site from other third party sites, release Member's email address to such third party, and (ii) as Member expressly directs eFax.com, release Member's email address to any other person Member may specifically designate. Notwithstanding the foregoing, due to the existing legal and regulatory environment, eFax.com cannot ensure that Member's personally identifiable information or Member's private communications will not be disclosed to third parties. By way of example (without limiting the foregoing), eFax.com may be forced to disclose information to the government or third parties under certain circumstances, or third parties may unlawfully intercept or access transmissions or private communications. Further, eFax.com can (and Member hereby authorizes eFax.com to) disclose Registration Data or any information about Member to law enforcement or other government officials as eFax.com, in its sole discretion, believes necessary or appropriate. Therefore, eFax.com does not promise, and Member should not expect, that personally identifiable information or private communications will always remain private.
2.1 TERMS OF STANDARD SERVICE
eFax.com will not charge Member in its Standard Service for the fax number, fax receptions, fax compression and conversions, and email transmissions provided by the Standard Service.
3. PRIVACY POLICY
The eFax.com current privacy policies, which are incorporated herein by this reference, are available at http://www.efax.com/privacy.html. By accepting this ETS, Member expressly consents to disclosures of Member's personal identification and other personal information to third parties, and to eFax.com's use of Member's information, as enumerated in eFax.com's then-current privacy policies. Although eFax.com acts as a passive conduit for Member to receive information of Member's own choosing, Member acknowledges and agrees that certain technical processing of, and access to fax and email messages and their content may be required to: (1) route the messages; (2) conform to connecting networks' technical requirements; (3) conform to the limitations of the Service; (4) prevent or minimize disruptions to the Service; or (5) conform to other similar requirements.
4. MODIFICATIONS TO TERMS OF SERVICE AND PRIVACY POLICIES
eFax.com may automatically amend this ETS or its privacy policies at any time by (i) posting a revised eFax.com Terms of Service document or privacy policies document on the eFax.com World Wide Web site, and/or (ii) sending information regarding the ETS or privacy policies amendment to the email address Member provides to eFax.com. Member is responsible for regularly reviewing the eFax.com World Wide Web site to obtain timely notice of such amendments. Member's continued use of Member's membership account after such amended terms or policies have been posted or information regarding such amendment has been sent to Member shall be deemed acceptance by Member of the amended ETS or privacy policies. Otherwise, this ETS and the privacy policies may not be amended except in writing signed by both parties.
5. MODIFICATIONS TO SERVICE
eFax.com reserves the right to modify or discontinue the Service with or without notice to Member. eFax.com shall not be liable to Member or any third party should eFax.com exercise its right to modify or discontinue the Service.
6. MEMBER ACCOUNT, PIN, PASSWORD, AND SECURITY
As part of the registration process, Member shall be required to provide an email address. Once Member becomes a member of the Service, a personal identification number (PIN) and fax number will be automatically sent to Member by email. Member may change Member's PIN and set a password to protect Member's faxes by accessing the My Account section of the web site. Member is entirely responsible if Member does not maintain the confidentiality of Member's PIN, password, fax number and account information. Furthermore, Member is entirely responsible for any and all activities which occur under Member's account. Member agrees to immediately notify eFax.com of any unauthorized use of Member's account or any other breach of security known to Member. MEMBER UNDERSTANDS AND AGREES THAT MEMBER IS NOT THE OWNER OF ANY FAX NUMBER ASSIGNED TO MEMBER BY EFAX.COM. ALL SUCH FAX NUMBERS ARE OWNED SOLELY BY EFAX.COM. MEMBER UNDERSTANDS AND AGREES THAT FOLLOWING THE TERMINATION OF SERVICE FOR ANY REASON, SUCH FAX NUMBER MAY BE RE-ASSIGNED IMMEDIATELY TO ANOTHER MEMBER AND MEMBER AGREES THAT EFAX.COM WILL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES) ARISING OUT OF ANY SUCH RE-ASSIGNMENT, AND MEMBER HEREBY WAIVES ANY CLAIMS WITH RESPECT TO ANY SUCH RE-ASSIGNMENT, WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF EFAX.COM HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
7. DISCLAIMER OF WARRANTIES
MEMBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT MEMBER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EFAX.COM 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. EFAX.COM MAKES NO WARRANTY THAT THE SERVICE WILL MEET MEMBER'S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES EFAX.COM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY COMMUNICATIONS OR TRANSMISSIONS, OR THE ACCURACY OF ANY TRANSLATION OR ALTERATION OF MEMBER'S TRANSMISSIONS OR DATA, OR THE ACCURACY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE, OR THE ACCRACY OR RELIABILITY OF ANY FILTERING TECHNOLOGY USED IN CONNECTION WITH THE SERVICE, OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. MEMBER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT MEMBER'S OWN DISCRETION AND RISK AND THAT MEMBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO MEMBER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA. EFAX.COM MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. EFAX.COM ASSUMES NO RESPONSIBILITY FOR THE DELETION OR FAILURE TO STORE FAX AND EMAIL MESSAGES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MEMBER FROM EFAX.COM OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO MEMBER.
8. LIMITATION OF LIABILITY
IN NO EVENT SHALL EFAX.COM OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF MEMBER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF EFAX.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EFAX.COM LIABILITY TO MEMBERS OR ANY THIRD PARTIES IS LIMITED TO $50. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO MEMBER.
9. NO RESALE OR COMMERCIAL USE OF THE SERVICE
Member's right to use the Service is personal to Member. Member may be either an individual or a corporation or business entity, but Member agrees not to resell the use of the Service.
9.1. SERVICES PROVIDED BY OTHER SERVICE PROVIDERS
eFax.com offers the Service to its Members as a capability, consistent with the terms and conditions hereof, for generating, acquiring, storing, transforming, processing, retrieving, utilizing or making available information via telecommunications services purchased from telecommunications carriers ("Carriers") and information services purchased from other ISPs. eFax.com does not provide or resell telecommunications services, but where necessary may obtain and integrate telecommunications services from Carriers as part of the Service it offers to its Members.
10. FAX AND EMAIL MESSAGE STORAGE AND OTHER LIMITATIONS
eFax.com has set no fixed upper limit on the number of fax messages a Member may receive through the Service, however, Member shall take no actions which impose an unreasonable or disproportionately large load on eFax.com resources (as determined by eFax.com in light of the load imposed by other Members generally). Distribution of unsolicited commercial faxes ("junk faxes") through the Service is prohibited, and at eFax.com's option and without further notice, eFax.com may use technologies and procedures, such as filters, that may terminate such junk faxes without delivering them. Of course, if Member's fax number is one of the target numbers for such junk faxes, Member may not receive such faxes by email.
11. MEMBER CONDUCT
Member is solely responsible for the contents of his or her transmissions through the Service, and, as stated above, eFax.com simply acts as a passive conduit for Member to receive information of Member's own choosing. However, eFax.com reserves the right to take any action with respect to the Services that eFax.com deems necessary or appropriate in eFax.com's sole discretion if eFax.com believes Member or Member's information may create liability for eFax.com, compromise or disrupt the Service for Member or other eFax.com members, or cause eFax.com to lose (in whole or in part) the services of eFax.com's ISPs or other suppliers. Member's use of the Service is subject to all applicable local, state, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination or false advertising). Member agrees: (1) to comply with US law regarding the transmission of technical data exported from the United States through the Service; (2) not to use the Service for illegal purposes; (3) not to interfere or disrupt networks connected to the Service; (4) to comply with all regulations, policies and procedures of networks connected to the Service; (5) not to use the Service to infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; and (6) not to transmit through the Service any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Member further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. The Service makes use of the Internet for Member to receive information of Member's own choosing; therefore, Member's conduct is subject to Internet regulations, policies and procedures. Member will not use or reference the Service for chain letters, junk fax or junk mail, spamming or any use of distribution lists to any person who has not given specific permission to be included in such a process, and will not attempt to gain unauthorized access to other computer systems. Member shall not interfere with another Member's use and enjoyment of the Service or another entity's use and enjoyment of similar services.
"Federal law (and some states' laws) prohibit the sending of unsolicited faxes in some circumstances. By requesting service from eFax.com, you are representing that you have a prior connection or relationship with the proposed recipient such that it is reasonable to expect that your fax transmission will not be an unwelcome, unsolicited fax by the recipient."
12. INDEMNIFICATION
Member agrees to indemnify and hold eFax.com, its parents, subsidiaries, affiliates, officers and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Member's use of the Service, the violation of this ETS by Member, or the infringement by Member, or other user of the Service using Member's computer, of any intellectual property or other right of any person or entity.
13. TERMINATION
eFax.com may immediately terminate Member's membership and right to use the Service (1) if Member breaches this ETS, (2) if eFax.com is unable to verify or authenticate any information Member provides to eFax.com, (3) if such information is inaccurate, (4) if Member uses the Service for the receipt of less than two fax transmissions per month, or (5) if eFax.com decides, in its sole discretion, to discontinue offering the Service. eFax.com shall not be liable to Member or any third party for termination of Service. Member may terminate the Service with or without cause at any time and effective immediately by written notice to eFax.com. Should Member object to any terms and conditions of the ETS or any subsequent modifications thereto or become dissatisfied with the Service in any way, Member's only recourse is to immediately: (1) discontinue use of the Service; (2) terminate Service membership; and (3) notify eFax.com of termination. Upon termination of the Service, Member's right to use the Service immediately ceases. Member shall have no right and eFax.com will have no obligation thereafter to forward any unread or unsent messages to Member or any third party. eFax.com reserves the right to refuse the Service to any Member who has cancelled any number of previous Service accounts.
14. PARTICIPATION IN PROMOTIONS OF ADVERTISERS
Member may enter into correspondence with or participate in promotions of the Advertisers showing their products on the Service. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between the corresponding Member and the Advertiser. eFax.com assumes no liability, obligation or responsibility for any part of any such correspondence or promotion.
15. PROPRIETARY RIGHTS TO CONTENT
Member acknowledges that content, including but not limited to text, software, music, sound, photographs, video, graphics or other material contained in either sponsor advertisements or email-distributed, commercially produced information presented to Member by the Service ("Content") by eFax.com or eFax.com's Advertisers, is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws; therefore, Member is only permitted to use this Content as expressly authorized by the Service or the Advertiser. Member may not copy, reproduce, distribute, or create derivative works from this Content without expressly being authorized to do so by the Service or the Advertiser.
16. GENERAL TERMS
This ETS is governed in all respects by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents. The UN Convention on Contracts for the International Sale of Goods is expressly disclaimed. Both parties submit to personal jurisdiction in California and further agree that any cause of action relating to this ETS shall be brought in a court in Santa Clara County, California. If any provision of this ETS is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. eFax.com's failure to act with respect to a breach by Member or others does not waive eFax.com's right to act with respect to subsequent or similar breaches. Member may not assign or transfer this ETS or any rights hereunder, and any attempt to the contrary is void. eFax.com shall not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond eFax.com's reasonable control. Member agrees that eFax.com may communicate with Member via email and any similar technology for purposes relating to Member's membership or the Service and any other services provided or which may in the future be provided by eFax.com or on eFax.com's behalf. This ETS sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof. Parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist Member in limiting access to material that is harmful to minors, although such technology may not be effective with regard to receipt of e-mail messages as provided as part of the Service. If Member is interested in learning about these protections, information is available at http://www.worldvillage.com/wv/school/html/control.htm or other analogous sites providing information on such protections. The Service hereunder is offered by eFax.com, located at 1378 Willow Road, Menlo Park, CA 94025. eFax.com's phone number is (650) 470-6996. If Member is a California resident, Member may have this same information emailed to Member by sending a letter to the foregoing address with Member's email address and a request for this information.
The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
