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IMPORTANT - READ THESE TERMS OF SERVICE AND LICENSE AGREEMENT ("TERMS") CAREFULLY BEFORE DOWNLOADING THIS SOFTWARE. BY DOWNLOADING OR USING THIS SOFTWARE, WHETHER YOU OBTAINED THIS SOFTWARE ON YOUR OWN BEHALF OR ANOTHER INDIVIDUAL OR ENTITY OBTAINED IT FOR YOU, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS, YOU UNDERSTAND THEM, AND YOU AGREE TO BE BOUND BY THEM. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD THE SOFTWARE OR USE THE CONTENT.
DEFINITIONS. In these Terms, the following capitalized terms will have the following meanings.
Software and Content are available to individuals aged 13 and older; however, Software and Content must be purchased by an individual aged 18 and older, who can make purchases with a credit card. If you are under 18, you should review these Terms with your parent or guardian to ensure that you understand these Terms.
REGISTRATION. To Download the Software and access Content, you must complete the registration process. Your Download and use of the Software and your access of any Content are governed by these Terms, which, by your completion of the registration process, you explicitly acknowledge as having read and understood. Your completion of the registration process will be treated as your acceptance of and agreement to be bound by these Terms.
FEES. The Software and certain Content are currently offered to you at no charge, other than the fees charged by your Carrier for data access or for SMS text messages. Subscription Content is available for a fee, which fee will be presented to you prior to purchase and will not be charged without your completion of the subscription process. Subscription Content will be available to you during your Service Commitment. We reserve the right to change prices and institute new fees at any time.
MODIFICATION OF FEES; WITHDRAWAL OF SOFTWARE OR CONTENT. You understand and acknowledge that we may modify, suspend or cancel the availability of the Software and any Content, including Subscription Content at any time, and that we may charge a fee for the Software or certain Content that may have been previously provided at no charge. We are not liable to you or to any third party for any modification, suspension or discontinuance of the Software or any Content.
FEES TO ACCESS SOFTWARE AND CONTENT. You acknowledge and agree that any fees or charges imposed by your Carrier for your use of the Software or Content, including, without limitation, costs for sending or receiving SMS text messages, downloads, updates, e-mail, or any other data transmission or use costs, are your sole responsibility.
SUBSCRIPTION. To Download Subscription Content, you must: (i) provide billing and contact information, including your legal name, mobile phone number, e-mail address, credit card and other information about you as prompted to do so during the purchase process (such information must be current, complete and accurate), and (ii) maintain and update this information within twenty days of any change or as otherwise necessary to keep it current, complete and accurate.
CUSTOMER'S ACCOUNT, PASSWORD AND SECURITY. Upon purchasing Subscription Content, an account will be created for you, and you may receive a username and password. You are the only authorized user of your account, except if expressly specified otherwise in your service plan, and you must comply with these Terms. You must keep your password confidential so that no one else may use the Software or access Content through your account. You agree to accept responsibility for all activities that occur through your account. Please notify us immediately upon discovering any unauthorized use of your account. Usernames and passwords are our property and we may alter or replace them at any time.
RENEWAL. Your Service Commitment for Content will automatically renew for like periods unless terminated. Fees for Subscription Content will billed to your credit card or other form of payment selected by you at the original purchase of the Subscription Content for each Service Commitment period. If you do not wish to renew a Service Commitment for particular Subscription Content, you must cancel your Service Commitment in writing prior to the expiration of the then current Service Commitment. Customers are responsible for any charges to their account. We are not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from our charges to your credit card or other method of payment.
DELINQUENT ACCOUNTS. Delinquent accounts may be suspended or canceled at our sole discretion; however, subscription fees will continue to accrue until you have terminated your Service Commitment. We may impose interest at a rate of 1.0% per month on any outstanding balance, or the maximum interest rate permitted by law, whichever is less. You must reimburse us for all costs incurred (including internal administrative expenses and reasonable attorneys' fees) in the collection of your past due accounts. We may assess you with an additional charge to reinstate a suspended account. If we terminate your account for failure to pay fees or any default of these Terms before the end of the Service Commitment, or if you terminate your account before the end of the Service Commitment for any reason, you agree to pay us, in addition to all other amounts owed, an early termination tee of US $35.00.
PAYMENT QUESTIONS. If you have a question about fees we charge to your credit card or other payment method, please contact us by e-mail at support@handmark.com or by sending 'HELP' to 46275 by SMS text message. All charges are considered valid unless disputed in writing within 60 days of the billing date. Adjustments will not be made for charges that are more than 60 days old.
LINKS. Links to other World Wide Web sites or resources may be available to you through the Software or certain Content. We have no control over such sites or resources. You acknowledge and agree that we are not responsible for the availability of such external sites or resources. We do not endorse and are not responsible or liable for any content, advertising, goods, services or other materials on or available from such sites or resources. You further acknowledge and agree that we are not liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, advertising, goods, services or other materials available on or through any such site or resource.
USE OF SOFTWARE AND CONTENT. Your use of the Software and any Content is at your own risk. You must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
SUBMISSIONS. You may submit suggestions, questions, or other information (collectively, "Submissions") to us through the Software. If you do make a Submission, and unless we indicate otherwise, you grant us a non-exclusive, royalty-free, perpetual, irrevocable, and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display the Submission throughout the world in any media. You also grant us the right to use the name under which you posted the Submission, if we choose. You represent that you own or otherwise control all of the rights to the Submissions that you post; that the Submissions are accurate; that our use of the Submissions you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify and defend us from all claims resulting from Submissions you supply. We take no responsibility and assume no liability for any Submission.
ADVERTISING. You acknowledge that advertisements in various forms may, from time to time, appear within, adjacent to, or as a part of the Content. You agree that advertising is a part of the Content, including Subscription Content. Some Content may include the advertising of third parties. We have no control over, and we are not responsible or liable for such third party advertising.
PRIVACY. You understand and agree that by using the Software and accessing Content, we will collect personally identifiable information about you. You consent to our collection, use and disclosure of this information in accordance with our privacy policy http://www.handmark.com/company/privacy.php.
When you create an account or use the Software to communicate with us, you are communicating with us electronically. Your creation of an account or communication with us via e-mail will be deemed to be your consent to receive communications from us electronically. We will communicate with you by posting a message through the Software or Content, by e-mail or by posting notices on www.handmark.com. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
When you sign up for our SMS text alerts, you agree that we may communicate with you through SMS text until you terminate your subscription. We do not charge you to participate in our SMS text alert program, but your Carrier's standard SMS text messaging charges will apply.
HOW TO OPT-IN: By changing your account preferences or by sending 'EXPRESS' to 46275 by SMS text message. You will receive one SMS text message confirming your subscription.
HOW TO OPT-OUT: By changing your account preferences or by sending 'STOP' to 46275 by SMS text message. We will immediately unsubscribe you from our SMS text alert service. You will NOT receive a SMS text message to confirm your cancellation.
HOW TO GET HELP OR SUPPORT: By sending 'HELP' to 46275 by SMS text message.
LICENSE GRANT. Subject to these Terms, we grant you a personal, non-transferable and non-exclusive right and license to Download, install and use the object code of the Software on a single Device solely for your personal use, and not in any networked environment, Internet, or Intranet environment. Subject to these Terms, we also grant you a personal, non-transferable and non-exclusive license to use the Documentation, in connection with your use of the same. Subject to these Terms and our license with the applicable Provider, we grant you a personal, non-transferable and non-exclusive right and license to Download, install and use the object code of, or remotely access and use, as applicable, the Content through your use of the Software.
RESTRICTIONS. Unless otherwise set out in a separate agreement with us, you must not: (i) copy or distribute the source code of the Software to any third party; (ii) reverse engineer, disassemble or decompile the Software or any Content or otherwise attempt to discover or re-create the source code to the Software or any Content; (iii) fail to strictly comply with all applicable laws, including U.S. export control laws, applicable to the Software; (iv) make any modification, adaptation, improvement, enhancement, translation, or derivative work of or to the Software, the Documentation or any Content; (v) remove, alter, or obscure any proprietary notices (including copyright notices) from the Software, the Documentation or any Content; (vi) interfere with or disrupt the use and enjoyment of the Software or Content by other users; (vii) sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software or any Content; (ix) attempt to obtain unauthorized access to the Software or Content; or (x) access the Content by any means other than through the Software.
CONFIDENTIALITY. The structure, organization and code of the Software are our valuable trade secrets and confidential information. Accordingly, you agree to hold the Software and Documentation in confidence and in trust and not to duplicate, reproduce, imitate or disclose the Software in any form, except as expressly permitted by functionality included within the Software (the "share Pocket Express®" function).
OWNERSHIP. The Software and Content is protected by law including, without limitation, the copyright laws of the United States and other countries, and by international treaty provisions. You acknowledge that the Software, the Documentation, all Content, all copyrights, patents, trade secrets, trademarks or other intellectual property rights protecting or pertaining to any aspect of the Software, the Documentation or any Content, are and will remain our sole and exclusive property, or the property of the applicable Provider. Except as expressly stated herein, these Terms do not grant you any intellectual property rights in the Software or Content, and we and our Providers reserve all rights not expressly granted to you.
PROTECTION OF RIGHTS. Some Content may include security components that permit digital materials to be protected from copyright infringement, and use of these materials is subject to usage rules set by us or the applicable Provider. You may not attempt to override or circumvent any of the usage rules embedded into the Content. Any unauthorized reproduction, publication, further distribution or public exhibition of Content, in whole or in part, is strictly prohibited.
You agree that we may collect and use technical data and related information, including, without limitation, information about your Device, software and peripherals, gathered periodically to help us create and deliver to you, improved Content, updates to the Software, support and other services, if any, related to the Software or Content.
NO WARRANTIES. THE SOFTWARE AND ALL CONTENT ARE PROVIDED TO YOU ON AN "AS IS" AND "WITH ALL FAULTS" BASIS. WE AND OUR PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN ADVICE OR INFORMATION PROVIDED BY US, A PROVIDER OR ANY OF OUR AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, AND YOU ARE NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
WE AND OUR PROVIDERS DO NOT WARRANT THAT THE SOFTWARE OR CONTENT IS FREE OF DEFECTS OR ANY COMPUTER CODE OR FILES DESIGNED TO DISRUPT, INTERRUPT, DISABLE, DAMAGE, DESTROY OR LIMIT THE FUNCTIONALITY OF YOUR DEVICE. YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE SOFTWARE AND CONTENT MAY CONTAIN DEFECTS AND/OR ERRORS OR MAY MALFUNCTION. WITHOUT LIMITING ANY OTHER DISCLAIMER OR LIMITATION HEREIN, WE ARE NOT RESPONSIBLE FOR ANY INTERRUPTIONS, CANCELLATIONS, DISRUPTIONS OR INTERFERENCES WITH DOWNLOAD OR USE OF THE SOFTWARE OR CONTENT RELATING TO ANY ACT OR OMISSION OF ANY CARRIER OR PROVIDER, OR THE PROVISION, UNAVAILABILITY, OR DELAY OF ANY CARRIER SERVICE.
LIMITATION OF LIABILITY. IN NO EVENT WILL WE, OUR PROVIDERS AND AFFILIATES OR ANY OF OUR OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR CONTENT, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN WE OR ONE OF OUR REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
IN NO EVENT WILL OUR AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER STATUTORY, CONTRACT OR TORT (INCLUDING NEGLIGENCE) EXCEED THE GREATER OF $50.00 OR THE FEES PAID FOR THE SOFTWARE OR CONTENT THAT IS THE BASIS OF THE CLAIM. THE ABOVE LIMITATIONS WILL APPLY EVEN IF THE FOREGOING REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
NO ACTION MAY BE BROUGHT FOR ANY BREACH OF THESE TERMS OR RELATING TO THE SOFTWARE OR CONTENT MORE THAN ONE YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION.
TERMINATION. You may terminate your license rights under these Terms at any time by destroying all copies, including backup copies, of the Software, Documentation and Content in your possession. Your rights to use the Software and Content terminate automatically if you fail to comply with these Terms. No notice is required from us to effectuate such termination. Additionally, we may terminate these Terms at any time and for any reason and may effect notice of such termination through any means, including but not limited to email, alert messages posted through the Software, or posting notice on www.handmark.com or otherwise publicly proclaiming such termination. Upon termination, you must stop using the Software and any Content and remove all copies from your Device. Rights and obligations under these Terms which by their nature should survive will remain in full effect after termination or expiration of the Terms.
INDEMNITY. You release, and will defend and indemnify, us and our directors, officers, employees, agents, successors and assigns from and against all claims or causes of actions, and any liabilities, obligations, judgments, fines, costs and expenses (including reasonable attorneys' fees) incurred by an indemnified party due to such claim or cause of action arising out of (i) inaccurate, invalid or incomplete information you provide to us at registration or at the purchase of Subscription Content, (ii) your breach of these Terms, and (iii) your Download, installation and use of the Software or any Content. You further agree to pay our reasonable attorneys' and expert witnesses' fees and costs arising from any actions or claims by third parties and those incurred in establishing whether this section applies.
EXPORT RULES. You agree that the Software and the Content will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software or any Content is identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including, without limitation Iran, Syria, Sudan, Cuba, and North Korea) and that you are not otherwise prohibited under the Export Laws from receiving the Software. The grant of rights to use the Software and Content is conditioned upon your forfeiture of such rights if you fail to comply with these Terms.
NOTICE TO U.S. GOVERNMENT END USERS. The Software, Documentation and Content are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. We or the respective Provider reserve all unpublished-rights reserved under the copyright laws of the United States.
You agree that the laws of the state of Missouri, without regard to principles of conflict of laws, will exclusively govern the construction of these Terms and any dispute of any sort that might arise between you and us. These Terms will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
ARBITRATION. PLEASE READ THIS PROVISION CAREFULLY. IT MEANS THAT YOU AND WE WILL ARBITRATE OUR DISPUTES. Any dispute relating in any way to your visit to www.handmark.com, the Software or the Content must be submitted to final, binding arbitration in Kansas City, Missouri. Arbitration under this agreement will be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction.
CLASS ACTION WAIVER. WHETHER IN COURT OR ARBITRATION YOU AND WE MAY ONLY BRING CLAIMS AGAINST EACH OTHER IN AN INDIVIDUAL CAPACITY AND NOT AS A CLASS REPRESENTATIVE OR A CLASS MEMBER IN A CLASS OR REPRESENTATIVE ACTION. IF A COURT OR ARBITRATOR DETERMINES IN A CLAIM BETWEEN YOU AND US THAT YOUR WAIVER OF ANY ABILITY TO PARTICIPATE IN CLASS OR REPRESENTATIVE ACTIONS IS UNENFORCEABLE UNDER APPLICABLE LAW, THIS SECTION WILL NOT APPLY, AND YOU AND WE AGREE THAT SUCH CLAIMS WILL BE RESOLVED BY A COURT OF APPROPRIATE JURISDICTION.
JURY TRIAL WAIVER. WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT (AS PROVIDED IN THIS SECTION), YOU AND WE WAIVE ANY RIGHT TO JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN YOU AND US.
MISCELLANEOUS. Any failure to enforce any provision of these Terms will not be construed as a waiver or limitation of our right to subsequently enforce and compel strict compliance with every provision of these Terms. These Terms, together with the license terms of our Providers, our privacy policy and any other policy posted at www.handmark.com are the entire agreement between us and you relating to the Software and Content and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software and Content. If any part of these Terms is found invalid or unenforceable by a court of competent jurisdiction, such finding will not affect the balance of these Terms, which will remain valid and enforceable. You may not assign your rights or delegate your duties under these Terms. Any notice under this Agreement must be delivered by U.S. certified mail, return receipt requested, or by overnight courier to the attention of the Vice President – Corporate Development at 909 Walnut Street, Fourth Floor, Kansas City, Missouri 64106.
POCKET EXPRESS ® is a trademark of Handmark, Inc.
Copyright © 2009, Handmark, Inc. All Rights Reserved.
Associated Press text, photo, graphic, audio and/or video material shall not be published, broadcast, rewritten for broadcast or publication or redistributed directly or indirectly in any medium. Neither these AP materials nor any portion thereof may be stored in a computer except for personal and non-commercial use. AP will not be held liable in any way to the User or to any third party or to any other person who may receive information in the Service or to any other person whatsoever, for any delays, inaccuracies, errors or omissions therefrom or in the transmission or delivery of all or any part thereof or for any damages arising from any of the foregoing or occasioned thereby.
The following is licensed from (c) Uclick, LLC. All Rights Reserved: Dear Abby (c) Jeanne Phillips; NASCAR Insider (c) Cox News Service; Scott Burns (c) Scott Burns; The Last Word in Astrology (c) Eugenia Last; News of the Weird (c) Chuck Shephard.