This Agreement is between Bigfoot Communications Limited ("Bigfoot")
and you ("you", "your" or the "User"),
as an authorized user of the services provided by Bigfoot, and governs
the terms and conditions of your use of any services offered by Bigfoot
and access to the Site (as defined herein). Bigfoot, through its website
www.bigfoot.net (the "Site"), provides (a) computing and
information services and (b) telecommunications services, including,
email management, SMS, Domain Registration, the Bigfoot Conference
Call Manager, Bigfoot WebMailTM, Bigfoot Anti-SpamTM, Bigfoot MyDirecotries
and other services to be added, to those persons ("Users")
who access the Site and utilize its services (collectively the "Bigfoot
Services"). By accessing the Site and using any of the services
offered or provided by Bigfoot, you confirm your acceptance of, and
agree to be bound by, (i) all of the conditions of use set forth in
this Agreement, (ii) any of the rules, policies and terms and conditions
of use published on the Site that apply to each of the individual
services provided or offered by Bigfoot, and (iii) the Privacy
Policy. This Agreement, together with the Privacy
Policy, any operating rules, policies, pricing schedules, conditions
of use or other documents on the Site or expressly incorporated herein
by reference constitute the entire agreement between Bigfoot and the
User, and supersede all prior agreements between the parties regarding
the subject matter of this Agreement. Notwithstanding the foregoing,
your use of any software that may any time be provided by Bigfoot
relating to any of the Bigfoot Services shall be pursuant to a separate
agreement governing the use of such software.
1. Member Account, Password and Security
If a particular product or service offered on the Site requires you
to open an account, you must complete the registration process by
providing us with current, complete and accurate information as prompted
by the applicable registration form. You further agree that the Registration
Data you provide will be maintained and updated to keep it true, accurate,
current and complete. Bigfoot reserves the right to terminate your
use of the Services and refuse to provide you with any and all current
or future use of the Services if Bigfoot, in its sole discretion,
determines that any of your Registration Data is untrue, inaccurate,
not current or incomplete. You may be asked to choose a password and
a user name, and you are entirely responsible for maintaining the
confidentiality of your password and account. Furthermore, you are
entirely responsible for any and all activities that occur under your
account. You agree to notify Bigfoot immediately of any unauthorized
use of your account or any other breach of security. Bigfoot will
not be liable for any loss that you may incur as a result of someone
else using your password or account, either with or without your knowledge.
However, you could be held liable for losses incurred by Bigfoot or
another party due to someone else using your account or password.
You may not use anyone else’s account at any time, without the
permission of the account holder.
As part of the registration process, the Service software automatically
collects certain information from your computer (including your Internet
address, browser type, operating software, computer language and e-mail
type and other computer registry information). You agree to allow
Bigfoot, through its software, to obtain this information and further
agree not to manipulate or falsify such information.
2. Bigfoot for LifeTM and Email Services
I. Bigfoot offers a lifetime email address, Bigfoot for LifeTM, through
which users can utilize various email management features, including
email forwarding, distribution, filtering, consolidation, spam blocking,
reminder, auto responder and PermaWeb. Bigfoot, through the Site,
offers three categories of membership relating to its email services
(collectively the "Email Services"):
A. Bigfoot for Life Basic. Membership Fee: Free. Basic Forwarding:
Forwards up to 50 e-mails a day
B. Bigfoot for Life Premium. Membership Fee: $9.95 per quarter.
Premium
Forwarding: Forwards up to 500 e-mails a day. This includes but is
not limited to:
1) Distribution. Bigfoot distributes copies of all your email to up
to twenty email accounts.
2) Filtering. Bigfoot delivers your incoming email to multiple addresses
or rejects it based on your preferences.
3) Consolidation. Bigfoot consolidates messages from multiple email
accounts to your Bigfoot for Life address.
4) Anti-Spam Defense System. Bigfoot blocks email from the web's most
notorious spammers.
5) Reminder Service. Bigfoot reminds you of important holidays, birthdays,
and anniversaries.
6) Auto-Responder. Bigfoot automatically responds to incoming mail
while you're away.
7) PermaWeb. Bigfoot gives you a permanent Web address. If you move,
change service providers, or alter your URL, netizens can always find
you at http://www.bigfoot.net/~yourname.
C. Bigfoot for Life Ultra. Membership Fee: $19.95 per quarter.
Ultra Forwarding:
Forwards an unlimited number of e-mails a day. This includes but is
not limited to:
1) Distribution. Bigfoot distributes copies of all your email to up
to twenty email accounts.
2) Filtering. Bigfoot delivers your incoming email to multiple addresses
or rejects it based on your preferences.
3) Consolidation. Bigfoot consolidates messages from multiple email
accounts to your Bigfoot for Life address.
4) Anti-Spam Defense System. Bigfoot blocks email from the web's most
notorious spammers.
5) Reminder Service. Bigfoot reminds you of important holidays, birthdays,
and anniversaries.
6) Auto-Responder. Bigfoot automatically responds to incoming mail
while you're away.
7) PermaWeb. Bigfoot gives you a permanent Web address. If you move,
change service providers, or alter your URL, netizens can always find
you at http://www.bigfoot.net/~yourname.
Bigfoot also offers a unique feature, through
which users can manage their Bigfoot for LifeTM accounts comfortably
as it takes care and makes sure you get the mail that you want and
need, Spam free! Bigfoot offers:
D. Bigfoot Anti-SpamTM.
Membership Fee: $5.95 per quarter with free 5 Mb Bigfoot WebMailTM
storage capacity.Available to:
1) Bigfoot for Life Basic members
2) Bigfoot for Life Premium members
3) Bigfoot for Life Ultra members
Description: Bigfoot Anti-Spam -- reduces Spam to a manageable proportion.
E. MyDirectories
Bigfoot
offers a free directory listing search service with features such
as the following:
1) Directories Search History - Bigfoot displays user's most current
contact information searches, up to the last 5 searches.
2) My Profile - User's can manage and update their personal and or
company information listing.
3) Manageable Privacy Options - You can set your directory listing
to 3 different viewing options, depending on how you want others to
view your listing: Public, Private or Screened.
3. Use of the Services
By accessing the Site and using the Services, each User agrees to
be bound by all of the Conditions of Use set forth in this Agreement
as well as any of the rules and policies published on the Site that
apply to each of the individual Email Services (such as Bigfoot for
Life, Premium Membership, Ultra Membership) as well as the other services
offered by Bigfoot that you may use (i.e., SMS, Domain Registration,
Web Mail and Bigfoot Conference Call Manager).
4. Billing
By accessing the Site and using the Services, each User agrees to
the following terms and conditions concerning billing, charges and
payment for use of the Services:
PLEASED BE ADVISED:
(a) You expressly agree that all charges for payment of the Email
Service or any other Bigfoot Service are final and non-refundable.
You are responsible for all charges resulting from your use of the
Email Service or any other Bigfoot Service. Once you sign up for the
Email Service or any other Bigfoot Service and provide a form of payment,
Bigfoot will not provide you a refund for any charge made on your
credit card, debit card or any payments. (b) If you believe that you
have been improperly charged for any Service, you must notify Bigfoot
within (5) days of any invoice or credit card statement, provide Bigfoot
any information necessary to review the claim, and Bigfoot will attempt
to resolve the claim in a timely manner.
BIGFOOT DOES NOT CONDONE FRAUD:
In the event of any unauthorized use of your account or unauthorized
credit card charges or debit card charges, you must notify Bigfoot,
and you will be responsible for such unauthorized use or charges until
you notify Bigfoot. You must also adopt any steps necessary to prevent
further unauthorized use of your account or unauthorized charges.
RENEWALS:
Upon expiration of the subscription for the Email Service (or any
other Bigfoot Service), Bigfoot shall automatically renew your subscription
and charge your credit or debit card. If you do not wish to renew,
you must notify Bigfoot at subscriptionrenewal@bigfoot.com
no less than 5 days prior to the expiration of your subscription,
otherwise you shall be responsible for all fees and charges incurred
for such renewal. Bigfoot shall have the right to terminate your account
immediately, and you shall have no right to a refund of any service
fees or charges, in the event you in any manner violate these Terms
and Conditions or the Privacy Policy or any other applicable Bigfoot
policy, rule or conditions of use. While you may choose to terminate
your account voluntarily at any time, you will not have a right to
any refund of any service fees or charges.
5. No Commercial Use.
No User may reproduce, or otherwise utilize, for commercial purposes
the information provided by Bigfoot through the Site or the Bigfoot
Services without the written permission of Bigfoot. Consequently,
without such written permission, no User may resell or commercially
exploit the names, addresses or other data obtained by use of any
of the Bigfoot Services. Your right to use the Bigfoot Services is
personal to you, and you hereby agree not to resell the use of the
Bigfoot Services.
6. Intellectual Property.
Each User acknowledges that Bigfoot has copyrighted the contents of
the Site and Bigfoot Services as a compilation copyright and that
reproductions, redistribution or publication of such content is prohibited
without the express written consent of Bigfoot. Further, each User
acknowledges that the Site and Bigfoot Services may include or contain
material of Bigfoot or third parties protected by copyright, trademark
or other laws and that the use or reproduction thereof without express
consent shall be prosecuted to the fullest extent of the law. The
Bigfoot name, the Bigfoot logo, and other marks and service marks
are trademarks or service marks of Bigfoot Communications and are
protected by intellectual property laws of the United States and several
other countries worldwide and that the use or reproduction thereof
without express consent shall be prosecuted to the fullest extent
of the law.
7. Deny Access.
Bigfoot reserves the right in its sole discretion to deny access to
the Site or any or all of the Bigfoot Services to any User for any
reason whatsoever.
8. Use of Information.
By providing information to Bigfoot, each User hereby grants permission
for Bigfoot to use such information in accordance with and subject
to the Bigfoot Privacy
Policy unless a restriction on such use is transmitted by the
User to Bigfoot by email prior to such use (in which event Bigfoot
may deny your use of any of the Services).
9. Indemnification.
Each User hereby indemnifies Bigfoot, its subsidiaries, affiliates,
employees, agents, and representatives and each of its licensors and
service providers against any and all liabilities, expenses (including
attorney's fees) and damages relating to Bigfoot's use of information
provided by such User. You further agree to indemnify Bigfoot and
each of its licensors and service providers from and against any and
all liabilities, expenses (including attorneys' fees) and damages
arising out of claims based upon your use of any of the Bigfoot Services,
including any violation of this Agreement or any other Bigfoot policy,
rule or conditions of use posted on the Site or relating to any Bigfoot
Service, by User or any other person using your account, any claim
of libel, defamation, violation of rights of privacy or publicity,
any loss of service by other customers, any infringement of intellectual
property or other rights of any third parties.
10. Other Bigfoot Members.
Each User agrees to discontinue any communication with persons listed
in the Bigfoot directory upon the request of such persons.
11. Content and Submissions.
(a) Bigfoot undertakes no responsibility to review the contents of
any information provided to Users, including but not limited to information
accessed through links to other sites and forwarded email, and by
using the Email Service, Web Mail (and any of the other Bigfoot Services).
Each User agrees that Bigfoot shall have no liability for such contents.
Furthermore, any dealings with third parties (including advertisers)
included within the Bigfoot Site/Services or participation in promotions,
including the delivery of and the payment for goods and services,
and any other terms, conditions, warranties or representations associated
with such dealings or promotions, are solely between you and the advertiser
or other third party. Bigfoot shall not be responsible or liable for
any part of any such dealings or promotions. (b) Bigfoot does not
claim ownership of the materials you provide to Bigfoot (including
feedback and suggestions) or post, upload, input or submit (each a
"Submission" and collectively "Submissions").
However, by posting, uploading, inputting, providing or submitting
("Posting") your Submission you are granting Bigfoot, its
affiliated companies and necessary sub licensees permission to use
your Submission in connection with the operation of their Internet
businesses, including, without limitation, the license rights to:
copy, distribute, transmit, publicly display, publicly perform, reproduce,
edit, translate and reformat your Submission; to publish your name
in connection with your Submission; and the right to sublicense such
rights to any supplier of a Bigfoot Service. No compensation will
be paid for any Submission, and by posting any Submission you represent
that you own or otherwise control all rights therein.
12. Compliance with Laws; Junk Mail and Spam.
Use of the Email and Web Mail Services (and the other Bigfoot Services)
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). Each User agrees:
(1) To comply with all laws regarding the transmission of technical data exported from any country through the Bigfoot Services; (2) Not to use the Bigfoot Services
for illegal purposes; (3) Not to interfere or disrupt
networks connected to the Bigfoot Services or to upload or disseminate
files that contain viruses, Trojan Horses, worms, time bombs,
cancelbots, corrupted files or any other similar programs or
software that may damage the operations of Bigfoot or of another’s
computer or property; (4) To comply with all regulations,
policies and procedures of networks connected to the Bigfoot
Services; (5) Not to use the Bigfoot Services
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
Bigfoot Services any unlawful, harassing, libelous, defamatory,
abusive, threatening, harmful, vulgar, obscene, profane or otherwise
objectionable material of any kind or nature or disseminate
any material or information that incites discrimination, hate
or violence towards one person or a group because of race, religion
or nationality; (7) Not to harvest or otherwise
collect information about others, including e-mail addresses
or download or otherwise copy, or provide (whether for a fee
or not) to a person or entity any directory of users of Bigfoot
or other usage information or any portion thereof; (8) Not to use the Services for
chain letters, 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 further agree not to attempt
to gain unauthorized access to other computer systems. Bigfoot
will immediately terminate any account which it believes, in
its sole discretion, is transmitting or is otherwise connected
with any spam or other unsolicited bulk email. If actual damages
cannot be reasonably calculated, you agree to pay Bigfoot liquidated
damages of $10 for each piece of spam or unsolicited bulk email
transmitted from or otherwise connected with your account, otherwise
you agree to pay Bigfoot's actual damages, to the extent such
actual damages can be reasonably calculated; (9) 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; (10) Not to interfere with another Customer's use and
enjoyment of the Bigfoot Services; (11) That Bigfoot for Life addresses may not be utilized
as return addresses for commercial email solicitations, advertising,
offensive or illegal communications, communications which infringe
intellectual property rights, or communications which harass,
intimidate or otherwise violate the rights of others.
Bigfoot reserves the right to terminate the Bigfoot for Life
registration of any person who violates this policy.
13. Modification of Agreement.
This Agreement (and any agreement, rule, or policy relating to the
Bigfoot Services) may be modified by Bigfoot at any time by publication
through the Site or by sending each User an email to the User's Bigfoot
for Life address. YOU ARE RESPONSIBLE FOR REGULARLY REVIEWING THE
BIGFOOT WEBSITE TO OBTAIN TIMELY NOTICE OF SUCH MODIFICATIONS. USER
SHALL BE DEEMED TO HAVE ACCEPTED SUCH MODIFICATIONS BY CONTINUING
TO USE THE SITE AND ANY OF THE BIGFOOT SERVICES AFTER SUCH MODIFICATIONS
HAVE BEEN POSTED OR INFORMATION REGARDING SUCH MODIFICATIONS HAS BEEN
SENT TO YOU.
14. Modification of Services.
Bigfoot reserves the right to modify or discontinue any of the Bigfoot
Services with or without notice. Bigfoot shall not be liable to User
or any third party should Bigfoot exercise its right to modify or
discontinue any of the Services.
15. Termination.
Either User or Bigfoot may terminate your account at any time, with
or without cause (for any reason), with or without notice. Any notice
by you to Bigfoot concerning termination or cancellation of your account
shall be in accordance with any procedures that may be established
by Bigfoot from time to time in its sole discretion. Bigfoot also
reserves the right to terminate or suspend your account without prior
notice, provided that Bigfoot will attempt to confirm such termination
or suspension by subsequent notice.
16. Miscellaneous.
(a) Bigfoot may assign this Agreement in accordance with the sale
of all or substantially all of its stock or membership interest or
all or substantially all of its assets to a third party. (b) YOU AGREE
THAT BY ACCEPTING THE TERMS IN THIS AGREEMENT, YOU CONSENT TO RECEIVE
REQUIRED INFORMATION, AND ANY OTHER INFORMATION PROVIDED TO YOU FROM
BIGFOOT, SOLELY BY ELECTRONIC COMMUNICATION.
17. Disclaimer of Warranties; Limitations on
Liability.
EACH USER EXPRESSLY AGREES THAT USE OF THE SITE, THE EMAIL SERVICES,
WEB MAIL AND THE OTHER BIGFOOT SERVICES IS AT THE USER'S SOLE RISK.
NEITHER BIGFOOT NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS WARRANT
THAT THE SITE OR THE BIGFOOT SERVICES WILL BE UNINTERRUPTED OR ERROR
FREE AND NEITHER BIGFOOT NOR ANY OF ITS LICENSORS OR SERVICE PROVIDERS
SHALL BE HELD RESPONSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY
OR INDIRECTLY, FOR ANY COMMUNICATIONS DIFFICULTIES WHICH COULD LEAD
TO THE INTERRUPTION AND/OR DELIVERY OF ANY OF THE SITE OR THE BIGFOOT
SERVICES; NOR DOES BIGFOOT OR ANY OF ITS LICENSORS, EMPLOYEES OR AGENTS
MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE
SITE OR THE BIGFOOT SERVICES. THE SITE AND BIGFOOT SERVICES ARE DISTRIBUTED
ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO
ACCURACY OF INFORMATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE,
OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF
EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE
TO THESE SERVICES. NEITHER BIGFOOT NOR ANYONE ELSE INVOLVED IN CREATING,
PRODUCING, OR DELIVERING THE SITE OR THE BIGFOOT SERVICES SHALL BE
LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF USE OF THE SITE OR THE BIGFOOT SERVICES OR
INABILITY TO USE THE SITE OR THE BIGFOOT SERVICES OR OUT OF ANY BREACH
OF ANY WARRANTY, AND YOU HEREBY WAIVE ANY CLAIMS WITH RESPECT THERETO,
WHETHER BASED ON CONTRACTUAL, TORT OR OTHER GROUNDS, EVEN IF BIGFOOT
OR ANY SUCH LICENSOR OR SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY
OF DAMAGES. THE ENTIRE LIABILITY OF BIGFOOT AND ITS LICENSORS AND
SERVICE PROVIDERS AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE
OF THE SITE AND THE BIGFOOT SERVICES OR ANY BREACH OF THIS AGREEMENT
ARE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR ACCESS TO AND USE
OF THE SITE OR THE BIGFOOT SERVICES DURING YOUR AVERAGE ONE MONTH
PERIOD OF USE. YOU HEREBY RELEASE BIGFOOT AND EACH OF ITS LICENSORS
AND SERVICE PROVIDERS FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND
CLAIMS IN EXCESS OF THIS LIMITATION. YOU SPECIFICALLY AGREE THAT BIGFOOT
SHALL NOT BE RESPONSIBLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION
OF YOUR TRANSMISSIONS OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED
OR NOT SENT OR RECEIVED, OR ANY TRANSACTIONS ENTERED INTO THROUGH
ANY BIGFOOT SERVICE. YOU SPECIFICALLY AGREE THAT BIGFOOT IS NOT RESPONSIBLE
OR LIABLE FOR ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE OR ILLEGAL
CONTENT OR CONDUCT OF ANY OTHER PARTY OR ANY INFRINGEMENT OF ANOTHER'S
RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS. YOU SPECIFICALLY AGREE
THAT BIGFOOT IS NOT RESPONSIBLE FOR ANY CONTENT SENT USING AND/OR
INCLUDED IN THE SITE OR SERVICES BY ANY THIRD PARTY.
18. E-mail Storage.
The amount of memory available for storage of e-mail of each User
will be limited according to policies adopted from time to time by
Bigfoot. Any User exceeding such storage limitations will be notified
by e-mail and provided (10) days to delete stored e-mails or to purchase
additional storage capacity. In the event User takes no action, Bigfoot
will delete stored e-mail, starting with the oldest e-mails, until
the User falls within the prescribed limits. Bigfoot has no responsibility
or liability for the deletion, corruption or failure to store any
messages. You agree that Bigfoot may establish, and modify, the policies
concerning limitations on the frequency of use of the Web Mail service
to send or receive e-mail, and/or limiting the period of time for
which stored e-mails will be retained.
19. Governing Law; Arbitration.
The laws of Hong Kong, Special Administrative Region, excluding its
conflicts-of-law rules, shall govern all matters relating to this
Agreement and use of the Site, the Email Services (and the other Bigfoot
Services). The United Nations Convention on contracts for the international
sale of goods is expressly disclaimed. Any controversy or dispute
arising out of this Agreement, the interpretation of any provision
hereof, or the action or inaction of any party hereto shall be submitted
to arbitration in Hong Kong, SAR, in accordance with the International
Arbitration Rules of the American Arbitration Association (the "AAA
International Rules") then in effect, conducted by one arbitrator
either mutually agreed upon by the parties to this Agreement or chosen
in accordance with the AAA International Rules. Each party shall have
no longer than three (3) days to present its position. Either party
may apply to the arbitrator seeking injunctive relief until the arbitration
award is rendered or the controversy is resolved. Either party also
may, without waiving any remedy under this Agreement, seek any interim
or provisional relief that is necessary to protect the rights or property
of that party pending the establishment of the arbitral tribunal (or
pending the arbitral tribunal's determination of the merits of the
controversy) and for the purposes of seeking such interim relief User
shall consent to the exclusive jurisdiction of the courts of Hong
Kong, SAR. The successful party to the arbitration or any litigation
relating to this Agreement or the Services shall be entitled to an
award for reasonable costs and attorney's fees (including those of
outside and in-house counsel). Any award or decision obtained from
any such arbitration proceeding shall be final and binding on the
parties, and judgment upon any award thus obtained may be entered
in any court having jurisdiction thereof. The parties agree that the
arbitrator shall have the power to award damages and injunctive relief.
20. If any provision of this Agreement is invalid
or unenforceable under applicable law, such provision will
be deemed modified to the extent necessary to render such provision
valid and enforceable and the other provisions of this Agreement will
remain in full force and effect. The failure of Bigfoot to exercise
or enforce any right or provision of this Agreement shall not constitute
a waiver of such right or provision. The section titles in this Agreement
are for convenience only and have no legal or contractual effect.
This Agreement may not be amended except as provided in Section 13.
You may not assign or transfer this Agreement or any rights hereunder,
and any attempt to the contrary is void.
