We may, in our sole and absolute discretion, change or modify this Agreement, any policies or agreements which are incorporated herein, and any limits or restrictions on the Services, at any time, and such changes or modifications shall be effective immediately upon posting to this Site. Your use of the Services after such changes or modifications shall constitute your acceptance of this Agreement and any limitations to the Services as last revised. If you do not agree to be bound by this Agreement and any Service limitations as last revised, do not continue to use the Services. We may occasionally notify you of changes or modifications to this Agreement by email. It is therefore very important that you keep your account information current. We assume no liability or responsibility for your failure to receive an email notification, if such failure results from an inaccurate email address being listed under your account.
1. Cheers Video Mail Services.
1.1 Cheers Video Mail is engaged in the business of providing certain video email production and communication services, including creating and delivering email (including video email) content provided by independent clients / subscribers to individuals or groups indicated and acknowledged by such clients as consented contacts of the client and, at the option of each client, engage privacy and security to delivering each and any selection of enhanced emails and/or video messaging. Under this Agreement, Cheers Video Mail provides you with certain EMail / video messaging Delivery Services; Cheers Video Mail does not grant you a license to any software under this Agreement. You will use the Services only for your personal or direct internal business purposes only and you will not use the Services or any Software for the benefit of a third party.
1.2 As part of the registration process, you will identify an email address for your Cheers Video Mail system account. Cheers Video Mail reserves the right to refuse registration or cancel accounts it deems inappropriate. You are responsible for maintaining the security of your account, passwords and files, and for all uses of your account and of the Services in your name.
1.3 Cheers Video Mail will provide Video Email Services set forth on the plans page for subscribers and per subscriptions and fees set forth in Subscription and Billing. Cheers Video Mail may, from time to time and at its sole discretion, enhance and otherwise change the hardware, software and/or system used for its Email Distributions.
2. Content; Contacts & Groups.
2.1 Creation and Management. “Content” means any and all text, pictures, sound, video, data or other information that you provide for an email communication. You acknowledge that Cheers Video Mail is acting as a passive conduit of the Content and that Cheers Video Mail has no obligation, and undertakes no responsibility, to review any of the Content to determine whether it may incur liability to anyone. However, notwithstanding anything herein to the contrary, if it comes to the attention of Cheers Video Mail that any of the Content is, in the sole opinion of Cheers Video Mail, obscene, threatening, abusive, libelous or otherwise objectionable, you agree that Cheers Video Mail may refuse to publish or distribute such Content, and may suspend your account.
2.3 Content, groups and Schedule Delivery. You will be solely responsible for providing your own content at Cheers Video Mail in the format(s) specified. In addition, you will provide your own contacts at Cheers Video Mail to which you are responsible for consent and accuracy.
2.4 Subscriber Information. Cheers Video Mail does not sell, rent or otherwise make data regarding members, subscribers, and their contacts available to third parties unless you have obtained your contacts’ permission and you have asked Cheers Video Mail to do so. You will be solely responsible for (a) informing your contacts that a third party administers your email communication and (b) obtaining your subscribers’ consent to the use of their personally identifiable information in connection with the email delivery services.
3. Fees and Payment.
3.1 Fees. The current schedule of fees for the Cheers Video Mail services is set forth in the plan pricing page as well as the Subscription and billing section. Cheers Video Mail may revise such schedule from time to time, provided that the revised fees will be effective only with regard to video email communication services that you request after the revised fees have been posted and after your current subscription expires unless it is an upgrade.
3.2 Payment. You must pay Cheers Video Mail monthly or annually in advance for each term in which you want to use Cheers Video Mail services. In addition to the listed fee, you will pay all sales, use, excise and other taxes that may be levied upon either party in connection with this Agreement or on activities related to the Email delivery. All fees are non-refundable; you acknowledge and agree that you will not be entitled to receive any refund and/or credit in connection with any prepaid fees.
4. Term and Termination.
5. Representations, Warranties, Covenants; Disclaimers.
5.2 Cheers Video Mail represents and warrants that it will use commercially reasonable efforts in providing all Services. Cheers Video Mail does not, however, guarantee continuous or uninterrupted email delivery Services; in the event of an interruption to the Services, Cheers Video Mail’s sole obligation will be to restore service as soon as reasonably possible.
5.3 Disclaimer. Other than as expressly stated in Section 5.2, Cheers Video Mail provides all services “AS IS” and without any warranty of any kind. You acknowledge that, except as expressly provided herein, Cheers Video Mail has not made any representations, warranties or covenants, express or implied, regarding the email delivery services, including any implied warranty of Merchantability, Title, Non-Infringement or Fitness for a Particular Purpose or implied warranties arising from course of dealing or course of performance.
6. Intellectual Property; Confidentiality.
6.1 As between yourself and Cheers Video Mail, Cheers Video Mail is and will remain the sole and exclusive owner of all right, title and interest in and to Services and all intellectual property rights embodied therein. You will not, directly or indirectly: reverse engineer; decompile; disassemble; or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through, the Services or any software, documentation, or data related to the Services (“Software”). If you are using the Services in any country in the European Community, the prohibition against reverse engineering, decompiling, disassembling or creating derivative works based on the Services or the Software does not affect your rights under any legislation implementing the E.C. Council Directive on the Legal Protection of Computer Programs.
6.2 “Confidential Information” means information disclosed, furnished, communicated or otherwise made available by one party to the other concerning technology, know-how, product development plans, business plans, pricing, subscriber count, subscriber identity and subscriber data, whether communicated verbally or in writing; however, Confidential Information does not include any information that (a) can be shown was already known to the receiving party at the time of disclosure, (b) is independently developed by the receiving party without any use of or reference to the disclosing party’s information, (c) is provided to the receiving party by a third party without violation of the disclosing party’s rights or (d) is already in or enters into the public domain by some action other than breach of this Agreement. Each party agrees, for the term of this Agreement and 3 years thereafter, to hold the other party’s Confidential Information in strict confidence, not to disclose such Confidential Information except as authorized by the disclosing party and not to use such Confidential Information except as permitted hereunder. The prohibition on disclosure will not apply to the extent that Confidential Information is required to be disclosed as a matter of law or by order of a court, provided that the receiving party uses reasonable efforts to provide the disclosing party with prior of such requirement and reasonably assists in obtaining a protective order therefor. Confidential Information of a party is and will remain the property of such party, notwithstanding any permissible disclosure under this Agreement.
7.1 Obligation. Each party will defend, indemnify and hold harmless the other party and its directors, officers, agents and employees for any and all losses, damages, costs, liabilities or expenses, including without limitation reasonable attorneys’ and expert witnesses’ fees (collectively, “Liabilities”), incurred or arising from any breach of such party’s respective representations, warranties or covenants in Section 5. You further agree to defend, indemnify and hold harmless Cheers Video Mail, its directors, officers, agents and employees for any Liabilities incurred or arising from any claims arising from the sale or license of goods or services in connection with any Email delivery.
7.2 Mechanics. All defense and indemnity obligations are contingent upon the indemnified party: (a) providing prompt notice to the indemnifying party of any claim, action or proceeding giving rise to an indemnifiable event; (b) granting sole control of the defense and/or settlement negotiations to the indemnifying party (except that the indemnified party’s prior written consent will be required where any settlement reasonably can be expected to require a material affirmative obligation of, or result in any ongoing material liability to, the indemnified party); and (c) providing reasonable cooperation and, at the expense of the indemnifying party, assistance in the defense or settlement.
8. Limitations on Liability.
Except for each party’s obligation assumed in Section 7, in no event will either party be liable for any special, indirect, incidental or consequential damages (including but not limited to such damages arising from breach of contract or warranty or from negligence or strict liability), or for lost data, interrupted communications or lost profits arising out of or in connection with this Agreement. Except for each party’s obligation assumed in Section 7, under no circumstances will either party be liable to the other for an amount greater than the amounts paid by you to Cheers Video Mail under this Agreement.
9. General Provisions.
This Agreement will be governed by the laws of the Province of Ontario - Canada without giving effect to principles of conflict of laws. Each party agrees to submit to jurisdiction in Ontario. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will continue in full force. The waiver by either party of a breach of any provision of this Agreement will not operate as a waiver of any other or subsequent breach. Cheers Video Mail may subcontract all or a portion of its responsibilities hereunder. If the performance of this Agreement or any obligation hereunder, except the making or payments, is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected party, the party so affected will be excused from such performance to the extent of such prevention, restriction or interference. The parties to this Agreement are independent entities; no agency, partnership, joint venture or employee-employer relationship is created by this Agreement. Any notices will be given to the appropriate party at the address specified on the first page or at such other address as the party has specified in writing. This Agreement, including the attached exhibits, sets forth the entire agreement of the parties and supersedes any other communications between the parties as to the subject matter of this Agreement. It may be changed only by a writing signed by both parties.