TERMS AND CONDITIONS
This Agreement is made by and between Venali, Inc. ("Venali") and
you ("you" or "Customer"), as an authorized Customer of
Venali eMessaging Services, and governs the terms and conditions of your use
of the Venali eMessaging Services. This Agreement, together with any operating
rules, policies, price schedules, or other supplemental documents expressly
incorporated herein by reference and published from time to time by Venali
(collectively, the "Agreement"), constitutes the entire Agreement
between Venali and you regarding the Venali eMessaging Services, and supersedes
all prior agreements between the parties regarding the subject matter of this
Agreement. For purposes of this Agreement, "Venali eMessaging Services"
or "Venali Services" or "Services" are defined as any
and all services provided by Venali to you either now or in the future. By
using Venali eMessaging Services, you confirm your acceptance of, and agree
to be bound by, this Agreement.
USER NAME AND PASSWORD: If Venali accepts your Application, it will open an
account in your name and will assign a user name and password to you that
will enable you access to our Web Site and use
of our Services. Please remember that your user name and password are unique
to you and should
not be communicated to any other person. UNDER NO CIRCUMSTANCES WILL ANY REPRESENTATIVE
OR EMPLOYEE OF VENALI ASK FOR YOUR PASSWORD. By accepting this Agreement,
you represent and warrant to Venali that you will not communicate your user
name and/or password to anyone other than yourself. You agree to assume sole
responsibility for all harm resulting from the use of the user name and/or
password by other than yourself.
MINIMUM CHARGE: The minimum charge for Services for any month during the Term
shall consist of
Five Hundred dollars ($500.00)
CHARGES: All charges for Services will be charged according to the
method you selected on the Venali Application for New Account form (the "Application").
Venali reserves the right to conduct a credit check using the information
you provided in the Application.
FORMS OF PAYMENT: We currently accept credit cards (Visa, MasterCard, American
Express) as well
as wire transfers and company checks. To register, Customer must send Venali
Application for New Account form providing its full billing information, including
Customer's name, company, address, telephone and fax number, email address,
credit card type, name as it appears on the credit card,
card number and expiration date. Customer agrees to pay reasonable cost of
collections, including legal fees. Customer's submission, via fax, of Venali
Application for New Account form attests to financial responsibility, ability,
and willingness to pay invoices within the stated terms and conditions under
this Agreement.
BILLING: Customers will be invoiced monthly via email one (1) day before payment
is automatically charged. Customers needing a printed invoice can print one
from our Web Site. Monthly invoicing
by mail is available for an additional fee.
CHARGE BACKS: If a charge back is submitted against a credit card used to
purchase service, the account(s) in question will be suspended immediately.
There is a $200 processing fee to re-activate.
BILLING POLICIES AND PRICES: We reserve the right to change our policies or
prices at any time.
Prices are guaranteed for the period of pre-payment only.
CONTENT: Venali has no control of the content of the information passing through
Venali accounts. Venali does not represent or endorse the accuracy or reliability
of any opinion, advice or statement made through a Venali account, and shall
have no liability for any harassing, offensive or obscene material distributed
through a Venali account, for any material distributed through a Venali account
which is distributed in violation of any third party's copyright or other
intellectual property right, or
for any use of its services that may violate federal, state, or local laws
or regulations.
PERMITTED USAGE: Customer represents and warrants that it will only use Venali's
services for lawful purposes and that its use of Venali's services will be
in compliance with all federal, state and local laws and regulations including,
without limitation, the provisions of the Telephone Consumer Protection Act.
Customer represents and warrants that it will not use Venali's services to
transmit any unlawful, harmful, threatening, abusive, libelous, vulgar, obscene,
profane, hateful, or otherwise objectionable information of any kind, including,
but not limited to, encouraging conduct that would constitute a criminal offense,
infringe third party rights, give rise to civil liability or otherwise violate
any local, state, federal or other law or regulation. Customer represents
that and warrants that it will not use Venali's services to upload, post,
reproduce or distribute, in any way, any information, software or other material
protected by copyright or any other intellectual property right without first
obtaining the permission of such right holder. Customer further warrants and
represents that its use of Venali's services will comply with all applicable
laws, regulations and conventions, including those related to data privacy,
international communications, exportation of technical or personal data, and
the sending of certain unsolicited facsimiles.
REGULATIONS REGARDING SENDING FACSIMILES: There are laws and regulations in
Canada, the United States and other countries that regulate the sending of
facsimiles. Generally, the content provider must include its name and contact
information so that a recipient may contact them at no additional cost. Additionally,
it is a violation of U.S. federal law to send an unsolicited advertisement
to a facsimile machine where certain approvals or waivers have not been obtained.
Civil or criminal penalties may exceed $1,500 for each transmission in violation
of these laws or regulations. Venali expressly forbids the unlawful use of
its services or of business lists which may violate any applicable law or
regulation.
It is solely the responsibility of the Customer to ensure that all such laws
and regulations, including without limitation, regulation of unsolicited advertising,
are adhered to. Customers expressly absolve Venali of all responsibility for
their use of Venali's services and warrant that they are in full compliance
with all laws and regulations regarding sending facsimiles. Venali strongly
recommends that Customers seek legal advice to ensure they are in compliance
with all such laws and regulations, prior to use of Venali's services.
VENALI'S WEB SITE: Conditioned on your continued compliance with this Agreement,
Venali grants you
a non-exclusive, non-transferable, limited license to personally use, access
and display our Web Site ("Site"), all software, graphics and design
elements contained in this Site ("Proprietary Elements") and
all other information and materials contained in this Site ("Content").
Except as expressly permitted
by Venali in writing, you may not copy, upload, post, transmit, download,
modify, distribute, sell, sublicense, transfer, mirror, frame or create derivative
works of this Site or any part thereof, or any Proprietary Elements or Content.
Further, you may not use any meta tags or any other "hidden text"
utilizing Venali's name or any Proprietary Elements without Venali's prior
written consent.
SITE MONITORING: You agree that Venali may elect to, but has no obligation
to, electronically view, monitor and record your communications on this Site
without notice or permission from you. However, under no circumstances shall
Venali be required to or responsible for screening, policing, editing, or
monitoring use of this Site. If Venali is notified of an allegation that this
Site contains, or that your use of the Site includes, infringing, defamatory,
damaging, illegal or offensive communication, Venali may investigate the allegation
and determine, in its sole discretion, whether to disclose such communication
to the appropriate officials.
NATURE OF THE INTERNET: You hereby acknowledge and agree that the nature of
the Internet is such that Venali cannot and does not guaranty access to the
Site or its Service. Venali may, from time to time, have to temporarily suspend
your access without any prior notice to you. Moreover, you understand and
agree that Venali will not be liable for any direct, indirect, incidental,
special or consequential damages relating to any pranks, hoaxes, viruses,
bugs or any other form of technological failure, natural disaster or security
breach that may prevent or interrupt access to or use of the Site, or cause
information or communications transmitted through Venali's accounts to be
publicly disseminated or otherwise misdirected, or for any other mistake,
omission, deletion of information
or communications or error.
LINKS: Venali makes no claims or representations regarding the quality, content,
nature or reliability
of sites accessible by hyperlink from this Site or sites linking to this Site,
and you agree that Venali has no responsibility for such links. Any linked
sites are not under Venali's control, and it is not responsible for the content
of any linked site or any link contained in a linked site, or for any review,
changes or updates to any such sites. Any linked sites are provided to you
only as a convenience. The inclusion
of any link does not imply affiliation, endorsement or adoption by Venali
of the linked site or any information contained therein. When leaving this
Site, you should be aware that Venali's terms and policies may no longer govern
your use of linked sites, and, therefore, you should review the applicable
terms, conditions and policies, including privacy and data gathering practices,
of each linked site.
CONFIDENTIALITY ON THE INTERNET: Use of the Internet is solely at your own
risk and is subject to
all applicable local, state, national and international laws and regulations.
You agree that Venali is not responsible for the security of any communication
or information transmitted over the Internet by or for you. You assume all
risks in transmitting information or communications to or from this Site,
you must make your own determination as to these matters and Venali is not
responsible for making any recommendations whatsoever to you.
WAIVER OF LIABILITY: AS A MATERIAL INDUCEMENT FOR VENALI TO PROVIDE THE SERVICES
HEREUNDER, CUSTOMER AGREES THAT UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE,
SHALL VENALI OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING
THE VENALI SERVICES, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL
OR CONSEQUENTIAL DAMAGES THAT RESULT FROM: 1) THE USE OF, OR INABILITY TO
USE, VENALI'S SERVICES; 2) FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION
OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR TRANSMISSION; 3) ANY FAILURE
OF PERFORMANCE; 4) CLAIMS BASED ON VIOLATIONS OF ANY LAW OR REGULATION DUE
TO USE OF VENALI'S SERVICES.
DISCLAIMER: The Site and any information or communication transmitted from
or through the Site is provided "AS IS," "AS AVAILABLE,"
and all warranties (whether express, implied or statutory) are hereby disclaimed
(including, but not limited to, any implied warranties of merchantability
and fitness for a particular purpose). The Site may contain bugs, errors,
problems or other limitations. Venali and its affiliated parties has no liability
whatsoever for your use of the Site. In particular, you agree that Venali
and its affiliated parties are not liable for any indirect, special, incidental
or consequential damages (including damages for loss of business, loss of
profits, litigation, or the like), whether based on breach of contract, breach
of warranty, tort (including negligence), product liability or otherwise,
even if advised of the possibility of such damages. The negation of damages
set forth above is a fundamental element of the basis of the bargain between
Venali (and its affiliates) and you. This Site and the Services offered would
not be provided without such limitations. No advice or information, whether
oral or written, obtained by you from us through the Site shall create any
warranty, representation
or guarantee not expressly stated in this Agreement.
INDEMNIFICATION: CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS VENALI,
ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS FROM ANY CLAIMS AND EXPENSES,
INCLUDING REASONABLE ATTORNEY'S FEES, RELATED TO ANY BREACH OF THIS AGREEMENT
OR ARISING FROM THE TRANSMISSION OF ANY MESSAGE, INFORMATION, SOFTWARE OR
OTHER CONTENT USING THE VENALI SERVICES. VENALI SHALL GIVE WRITTEN NOTICE
OF ANY SUCH CLAIM, ACTION OR DEMAND WITHIN A REASONABLE TIME. VENALI SHALL
BE DEFENDED BY ATTORNEYS OF THEIR CHOICE AT CUSTOMER'S EXPENSE.
GOVERNING LAW AND VENUE: This Agreement shall be governed by and construed
in accordance with the laws of the State of Florida. The parties stipulate
to the exclusive jurisdiction of the federal and state courts located in Miami,
Florida to hear any controversy or claim between the parties arising out of
or related to this Agreement. The parties also stipulate to personal jurisdiction
in such courts and expressly agree not to contest venue or jurisdiction in
such courts.
ATTORNEY'S FEES: In the event that Venali uses legal means to enforce any
of its rights under this Agreement against you and is successful, then, in
addition to any other remedy to which Venali is entitled, it shall also be
entitled to be reimbursed by you for all costs and expenses Venali incurs
to enforcing its rights, including, without limitation, reasonable attorneys'
fees.
NOTICES: Except as expressly stated otherwise, all notices to us shall be
sent to 1680 Michigan Avenue, Suite 1014, Miami Beach, Florida 33139. All
notices to you shall be sent to the email address that you provide to Venali
in your Application. It is your responsibility to update your email address
if it changes. Such notice shall be deemed received one (1) business day after
the email is sent.
SEVERABILITY: If any provision or portion of this Agreement shall be held
invalid under any applicable laws, such invalidity shall not affect any other
provision of this Agreement that can be given effect without the invalid provision
or portion, and, to this end, the provisions or portions hereof are severable.
MISCELLANEOUS: This Agreement constitutes the sole agreement between you and
Venali relating to your use of this Site, the Services and the subject matter
hereof, and no representations, statements or inducements, oral or written,
not contained in this Agreement shall bind either party. Any provision of
this Agreement which is determined to be invalid or unenforceable in any jurisdiction
shall be ineffective to the extent of such invalidity or unenforceability
in such jurisdiction, without rendering invalid or unenforceable any of the
remaining terms and conditions of the Agreement or affecting the validity
or enforceability of this Agreement in any other jurisdiction. No waiver of
any right under this Agreement by Venali will be deemed to be either a waiver
of any other right or provision or a waiver of that same right or provision
at any other time. Venali reserves the right to assign, transfer or delegate
any rights and/or obligations hereunder, in part or in whole, without your
prior consent. You may not assign, transfer or delegate your rights or obligations
hereunder, in whole or in part, without Venali's prior written consent. This
Agreement shall be binding upon and inure to the benefit of each party to
this Agreement and to their respective successors and permitted assigns. Any
action or claim against Venali must be brought within one (1) year following
the date on which the claim first accrued or shall be deemed forever waived.
A printed version of this Agreement and of any related notice given in electronic
form shall be admissible in judicial or administrative proceedings based upon
or relating to this Agreement to the same extent and subject to the same conditions
as other business documents and records originally generated and maintained
in printed form.
THIRD PARTY BENEFICIARIES. This Agreement has been made and is made solely
for the benefit of
Venali, and their respective successors and permitted assigns. Nothing in
this Agreement is intended
to confer any rights/remedies under or by reason of this Agreement on any
third party.
TERMINATION: Venali reserves the right to suspend or terminate access to our
Web Site and our Services provided to Customer, at its sole discretion, for
any reason or for no reason at all. Should Venali cancel service, prepaid
monthly fees for service not rendered will be prorated and refunded. Setup
fees are not refundable. If your credit card company does not approve credit
card charges,
you will be in default under this Agreement and Venali reserves the right
to immediately terminate
your access to our Web Site and our Services to you without any notice. Upon
the termination of
your account, you remain liable for all charges to your account. Venali will
not be liable for any damages suffered by Customer due to Venali's suspension
or termination of access to our Web Site
and our Services under this Agreement.
Revision date 3/14/02
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