Site Terms | Service Terms

This page states terms and conditions under which Benchmarkemail.com ("BME") authorizes you to use this Web site (this "Agreement"). Please read this page carefully. If you do not accept this Agreement, do not use this Web site. BME may update this Agreement at any time by this simple posting. You agree to review this Agreement periodically so that you are aware of any such modifications, at which time you may either agree to such changes or discontinue the further use of this Web site. Your use of this Site after BME posts such changes will constitute your agreement to the amended Agreement.

Trademarks

The logo, trademarks, and look-and-feel, of BME and its affiliates are owned exclusively by BME. All other trademarks, product names and company names or logos cited herein are the property of their respective owners.

Copyrights

The Content (defined below) is protected by copyright laws under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. All BME Content on this Web site is subject to and protected by: Copyright © 2003 Benchmarkemail.com ALL RIGHTS RESERVED.

Limits on Use.

This Web site is owned and operated by BME, and is for your personal, noncommercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell in any way any information, documents, graphics, software, products or services obtained from this Web site ("Content"), except that you may view the Content in its present form and you may download on any single computer one (1) copy of the Content for personal, noncommercial home use, provided that you keep intact all copyright and other proprietary notices. 4. Disclaimer of Warranties.

THE CONTENT PUBLISHED ON THIS WEB SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. BME DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE CONTENT IN THIS SITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT BME) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

BME DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ITS WEB SITE CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS WEB SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

BME MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE CONTENT CONTAINED ON THIS WEB SITE FOR ANY PURPOSE. ALL SUCH CONTENT IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BME HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE CONTENT, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.

5. Disclaimer of Consequential Damages.

IN NO EVENT SHALL BME, ITS CONTENT SUPPLIERS, OR ANY THIRD PARTIES MENTIONED AT THIS WEB SITE, BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THIS WEB SITE OR WITH THE DELAY OR INABILITY TO USE THIS WEB SITE, OR FOR THE CONTENT OBTAINED THROUGH THIS WEB SITE, OR OTHERWISE ARISING OUT OF THE USE OF THIS WEB SITE, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF BME HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

You acknowledge and agree that this Web site may contain Content provided by other users, Content suppliers and other third parties. BME makes no representations with respect to, nor does it guarantee, warrant or endorse the quality, non-infringement, accuracy, completeness, timeliness, reliability or correct sequencing of such third party Content or any other Content that such third party Content may access. BME expressly disclaims responsibility and liability for all third party provided Content contained or accessible through this Web site.

7. User Submissions.

Generally, any communication, which you post to this Web site, is considered to be non-confidential. If particular pages on this Web site permit the submission of communications that will be treated by BME as confidential, such a fact will be stated in "Legal Notices" on those pages. By posting communications to this Web site, you automatically grant BME a royalty-free, perpetual, irrevocable nonexclusive license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display the communication alone or as part of other works in any form, media, or technology, whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicenses.

As a user of this Web site ("User"), you are responsible for your own communications and are responsible for the consequences of their posting. You must not do the following things: Post content that is copyrighted, unless you are the copyright owner or have the permission of the copyright owner to post it; post content that reveals trade secrets, unless you own them or have the permission of the owner; post content that infringes on any other intellectual property rights of others or on the privacy or publicity rights of others; post content that is obscene, defamatory threatening, harassing, abusive, hateful, or embarrassing to another User or any other person or entity; post sexually-explicit image; post advertisements or solicitations of business; post chain letters or pyramid schemes; or impersonate another person.

BME and its Content suppliers do not represent or guarantee the truthfulness, accuracy, or reliability of any of communications posted by other Users or endorse any opinions expressed by Users. You acknowledge that any reliance on Content posted by other Users will be at your own risk.

BME does not screen communications in advance and is not responsible for screening or monitoring Content posted by Users. If notified by a User of communications, which allegedly do not conform to this Agreement, BME may investigate the allegation and determine in good faith and its sole discretion whether to remove or request the removal of the communication. BME has no liability or responsibility to Users for performance or nonperformance of such activities. BME reserves the right to expel Users and prevent their further access to this Web site for violating this Agreement or the law and the right to remove communications which are abusive, illegal, or disruptive.

8. Links to Other Sites.

This Web site may contain links to third party Web sites. These links are provided solely as a convenience to you and not as an endorsement by BME of the Content on such third party Web sites. BME is not responsible for the Content of linked third party Web sites and does not make any representations regarding the Content or accuracy of any Content on such third party Web sites. If you decide to access linked third party Web sites, you do so at your own risk.

9. Software Licenses.

From time to time, software may be made available for downloading from this Web site ("Software"). Such Software is protected by copyright and may be protected by other rights. The use of such Software is governed by the terms of the software license agreement or designated "Legal Notice" accompanying such Software ("License Agreement"). The downloading and use of such Software is conditioned on your agreement to be bound by the terms of the License Agreement.

10. Limitation of Liability.

Unless otherwise expressly provided in a Software License or Legal Notice, the aggregate liability for BME and its Content suppliers to you for all claims arising from the use of the Content (including Software) is limited to $100.

11. Indemnity.

You agree to defend, indemnify, and hold harmless BME, its officers, directors, employees, agents and Content suppliers, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from your use of this Web site and the Content (including without limitation, Software) or your breach of this Agreement. BME shall provide notice to you promptly of any such claim, suit, or proceeding and shall assist you, at your expense, in defending any such claim, suit or proceeding.

12. Export Control.

The United States controls the export of products and information. You agree to comply with such restrictions and not to export or re-export the Content (including Software to countries or persons prohibited under the export control laws. By downloading the Content (including Software), you are agreeing that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of the Content.

13. User Information.

BME and its Content suppliers may collect, use and disclose the IP addresses and zip codes of all of our Web site's Users on an Aggregate Basis. For the purposes of this Agreement, "Aggregate Basis" means that we combine anonymous parts of your information with anonymous parts of the information from our other Users without including any of your personally identifiable information, such as but not limited to your name and e-mail address, in the combination. An example of "Aggregate Basis" without limitation is our tracking the most popular parts of the BME Web site among the Users.

14. General.

This Agreement is effective until terminated by either party. You may terminate this Agreement at any time by destroying all Content obtained from any and all BME Web sites and all related documentation and copies and installations thereof, whether made under the terms and conditions of this Agreement, or otherwise. This Agreement will terminate immediately without notice from BME if, in BME sole discretion, you fail to comply with any of the Terms and Conditions is Agreement. Upon termination, you must destroy all Content obtained from this Web site and any and all other BME Web sites and all copies thereof, whether made under the terms and conditions of this Agreement, or otherwise.

This Web site is based in Long Beach, California, U.S.A. BME makes no claims that the Content is appropriate or may be downloaded outside of the United States. Access to the Content (including Software) may not be legal by certain persons or in certain countries. If you access this Web site from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. This Agreement is governed by the internal substantive laws of the State of California, U.S.A, without respect to its conflict of laws principles. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sales of Goods. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remainsmalling provisions of this Agreement, which shall remainsmall in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. Except as expressly provided in a particular "Legal Notice" or Software License or Content on particular Web pages, this Agreement constitutes the entire Agreement between you and BME with respect to the use of this Web site. BME reserves the right to make changes to this Web site and to this Agreement at any time without notice.

15. Cancellation Policy

We require that you fax us your cancellation request. This is required due to the sensitive nature of the information that you keep within your account. We want to make sure we have your written permission before we delete your account.
We do require a 30 days notice before cancelling your account.
Please download this pdf file, fill it out and fax back to 562-961-5591.
Refunds - If you prepaid for an annual plan and you wish to cancel, then the refund is only for 1/2 of the year. The refund request must be made in the first half of the year. No refunds are allowed on price guarantee custom plans.

16. Venues.

You agree that any disputes involving this Web site shall be adjudicated to any federal or state court located in Long Beach, California. You also agree to submit to jurisdiction and venue in any state or federal court in Long Beach, California.

Service Terms | Site Terms

ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE

The BME Product/Service owned and operated by BME is provided to you ("End User", "You", or "Your") under the terms and conditions of this End User Terms of Service, and any revisions, operating rules or policies that may be published by BME on the BME Web site (collectively, "TOS" or "Terms of Service"). The TOS, and any attachment expressly referenced in this TOS, is the complete and exclusive statement of the agreement between BME and You and supercedes any prior agreement, oral or written, relating to the subject matter of the TOS. BY USING THE BME PRODUCT, YOU AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS HEREIN. IF YOU DISAGREE WITH ANY PART OF THESE TERMS OF SERVICE, DO NOT USE OR REGISTER FOR THE USE OF BME PRODUCT/SERVICE.

PRODUCT/SERVICE DESCRIPTION

The BME Product/Service provides End User with the capability to send electronic messages via the Internet, with the capability of embedding rich media content, including but not limited to images, video, music and sounds and other audiovisual or interactive elements ("Messages"). Unless explicitly stated otherwise, any new features that augment or enhance the current BME Product, including among other things the release of new BME products or services, shall be subject to the TOS.

End User must at no cost to BME: (a) provide for End User's own access to the Internet and pay any service fees associated with such access, and (b) provide all equipment necessary for End User to make such connection to the Internet, including without limitation a computer and modem or a broadband Internet connection.

REGISTRATION OBLIGATIONS

In consideration of Your use of the BME Product/Service, You agree to: (a) provide true, accurate, current and complete information about yourself as requested from time to time by BME (such information being the "Registration Data") and (b) mainsmalltain and promptly update the Registration Data to keep it true, accurate, current and complete. If You provide any information that is untrue, inaccurate, not current or incomplete, or BME has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, BME has the right to suspend or terminate Your account and refuse any and all current or future use of the BME Product (or any portion thereof) by You.

INTELLECTUAL PROPERTY

End User acknowledges that all content and materials provided to End User through the BME Product/Service, including but not limited to text, software, music, sound, photographs, graphics, video, and animation (collectively, "Content"), provided by BME and its licensors as identified below are protected by copyright law, patent law, moral rights law, trade secret law, confidential information law, trademark law, unfair competition law or other similar rights (collectively, "Intellectual Property Rights").

BME and the Licensors retain full and complete title to all Intellectual Property Rights, including without limitation any application or right to apply for registration of any such rights, in the Content. BME and the Licensors grant to End User a limited, nontransferable, nonexclusive license to send, compose, read, print, save and forward Messages containing the Content as described and limited in these Terms of Service. End Users are not permitted to utilize the Content for any other purpose or alter it in any way, including without limitation removing any proprietary rights notices. End User's use of the BME Product in no way transfers title of the Content to End User. End User will not otherwise copy, transmit, distribute, sell, license, de-compile, reverse engineer, disassemble, modify, publish, participate in the transfer or sale of, create derivative works from, perform, display, incorporate into another Web site, or in any other way exploit any of the Content or any derivative works thereof, in whole or in part for commercial or non-commercial purposes.

End User acknowledges that some of the Content is provided by the Licensors. End User agrees to adhere and comply with Licensor's license to End User, including without limitation those licenses attached hereto, and to not violate Licensor's Intellectual Property Rights, as described below.

USER PRIVACY

BME considers the Messages to be the private correspondence between the sender and recipient. BME will not monitor, edit or disclose the contents of a End User's private communications without End User's prior permission, except that End User agrees BME may do so: (a) as required by law; (b) to comply with legal process; (c) if necessary to enforce the Terms of Service; (d) to respond to a good faith belief or third party claims that such contents violate the rights or interests of a third party or the Terms of Service; (e) to protect the rights or property of BME or others. End User understands and agrees that technical processing of the Messages is and may be required (w) to send and receive the Messages; (x) to conform to the technical requirements of connecting networks; (y) to conform to the limitations of the BME Product; (z) to conform to other, similar technical requirements, or as otherwise stated in the BME Privacy Policy, as updated from time to time, incorporated herein by reference.

"SPAMMING"

End User shall not use the BME Product in any way, form or manner for chain letters, junk e-mail, "Spamming" (defined below) or any use of distribution lists to any person who has not given specific permission to be included in such a process, including without limitation the collection, storage or transmission of information for such a distribution list. An e-mail advertisement which is (a) addressed to a recipient with whom the initiator does not have an existing business or personal relationship and (b) is not sent at the request of or with the express consent of the recipient to receive such communications from You ("Spam" or "Spamming") is strictly prohibited by BME. If any End User uses the BME Product for Spamming, BME reserves the right to immediately terminate End User's access to the BME Product and to seek appropriate legal recourse as necessary. If You believe that others may be using the BME Product for Spam, You agree to promptly notify BME.

NOTICES

BME may give notice to You by e-mail, a posting on the BME Web site, or other reasonable means. You must give notice to BME in writing via e-mail. BME may broadcast, distribute or display notices or messages through the BME Product to inform End User of changes to the TOS, the BME Product, or other matters of importance; such broadcasts, distributions or displays shall constitute notice to End User.

NO RESALE OR COMMERCIAL USE OF THE SERVICE

End User's right to use the BME Product is personal to End User. End User shall not resell or make any commercial use of the BME Product or otherwise seek financial gain from providing the BME Product or access to the BME Product to any third party without the express, prior, written consent of BME.

CONDUCT

As a condition of End User's use of the BME Product, End User represents and warrants to BME that End User will not use the BME Product for any purpose that is unlawful or prohibited by these Terms of Service. The BME Product makes use of the Internet to send and receive certain messages; therefore, End User's conduct is subject to Internet regulations, policies and procedures. By way of example, and not as a limitation, End User shall not:

• Use the BME Product or Content in connection with unsolicited surveys, contests, pyramid schemes;
• Defame (including without limitation libel and slander), abuse, harass, stalk, embarrass, threaten or otherwise violate the legal rights (such as but not limited to rights of privacy and publicity) of others;
• Publish, distribute or disseminate any inappropriate, profane, vulgar, defamatory, infringing, obscene, adult-oriented, pornographic, tortious, indecent, unlawful, immoral or otherwise objectionable material or information, including without limitation through using or modifying the Content;
• Harm minors in any way;
• Harvest or otherwise collect information about others, including without limitation e-mail addresses and e-mail interception, without their consent;
• Use the BME Product to record the conversations or communications of other people without their consent;
• Create a false identity for the purpose of misleading others as to the identity of the sender or the origin of a Message or forge message headers or manipulate identifiers to disguise origin of transmission;
• Transmit or upload any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
• Transmit or upload any material that contains software or other material protected by Intellectual Property Rights (as defined above in the Content Section and including but not limited to copyright, trademark and patent rights), rights of privacy or publicity or any other applicable law unless End User owns or controls the rights thereto or has received all necessary consents;
• 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;
• Interfere with or disrupt the BME Product, networks or servers connected to the BME Product or violate the regulations, policies or procedures of such networks or servers;
• Attempt to gain unauthorized access to the BME Product, other accounts, computer systems or networks connected to the BME Product, through password mining or any other means;
• Violate any applicable laws or regulations including, without limitation, laws regarding the transmission of technical data or software exported from the United States through the service and any other applicable local, state, national and international laws and regulations;
• Interfere with another person's use and enjoyment of the BME Product or another individual's or entity's use and enjoyment of similar services;
• Use the BME Product to promote illegal activities;
• Use the BME Product for illegal purposes;
• Use the BME Product for gambling or betting or to promote the use of alcohol, firearms or tobacco products;
• Use the BME Product to e-mail links to World Wide Web sites that violate the TOS; or
• Engage in any other conduct, which, in BME's sole discretion, is considered unauthorized or objectionable.

BME has no obligation to monitor the BME Product, End User's use of the BME Product or to retain the content of any End User session. However, BME reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request or to enforce the Terms of Service, in BME's sole discretion. End User agrees that BME shall not have liability for any such monitoring, lack of monitoring, review, lack of review, retention, lack of retention or disclosure of information. End User agrees to be solely responsible and liable for the contents of End User's Messages sent through the BME Product.

USER ACCOUNT, PASSWORD, AND SECURITY:

You will receive a password and an account. You are responsible for mainsmalltaining the confidentiality of Your password and account. Furthermore, You are entirely responsible and liable for any and all activities that occur under Your account, including among other things the content of transmissions sent through the BME Product from Your account. You may change Your password at any time by following instructions made available at the BME Web site or other on-line user information. End User agrees to immediately notify BME of any unauthorized use of End User's account or any other breach of security known to End User.

UNSOLICITED SUBMISSIONS

BME welcomes comments regarding its products and services. However, BME's policy is to not accept or consider creative suggestions, ideas, notes, drawings, concepts or other information (collectively, "Information") other than those it has specifically solicited. BME seeks to avoid misunderstandings over the ownership of Intellectual Property Rights in the Information. Accordingly, BME asks that End User not send any Information to BME. If End User sends BME any Information, the Information shall be deemed, and shall remainsmall, the property of BME and End User thereby assigns and transfers all Intellectual Property Rights in the Information to BME. End User further agrees to reasonably effectuate or confirm the assignment described above in all other instruments and documents now or hereafter requested by BME. In addition, End User shall perform any acts that may be deemed desirable by BME to evidence more fully transfer of ownership of the Information to to the fullest extent possible. BME will not compensate End User in any way for the assignment of Intellectual Property Rights in the Information or any related acts by End User, which are requested by BME. BME will not be subject to any obligation of confidentiality on behalf of End User regarding the Information and BME shall not have liability or owe any compensation for any use or disclosure of the Information.

USER-SUBMITTED MATERIALS

End User is solely responsible for any data, text, software, music sound, photographs, graphics, video, messages, files or other materials which are transmitted, posted, or distributed by End User through the BME Product ("End User Materials"), including but not limited to the contents of End User's e-mail communications and photos posted by End User on the BME Web site or through the BME Product. End User shall have sole liability for all End User Materials whether publicly posted or privately transmitted. BME has no obligation to monitor or control the End User Materials provided via the BME Product and, as such, does not guarantee, warrant or make any representations about the End User Materials, including among other things, the accuracy, integrity or quality of the End User Materials. End User understands that by using the BME Product, End User may be exposed to content posted by other users that may be offensive, indecent or objectionable and that BME shall have no liability arising out of such content. Under no circumstances will BME be liable in any way for any End User Materials, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, e-mailed or otherwise transmitted via the BME Product.

INDEMNITY

End User shall defend, indemnify, and hold BME, the Licensors and their officers, directors, employees, contractors, agents and affiliates harmless from any and all liability, claims, causes of action, proceedings, damages, costs and expenses, including without limitation reasonable attorneys' fees, arising out of or relating to End User's use of the BME Product, including without limitation the End User Materials, End User's violation of the Terms of Service and End User's violation of a third party's rights.

STORAGE

BME shall not have responsibility or liability for BME's or End User's deletion of a Message or the failure to send Messages. The amount of e-mail storage space per End User is limited. Additional storage space may be available to End User upon payment of additional fees. BME shall not have responsibility or liability for messages not processed due to space constraints or outbound message limitations.

ADVERTISERS

End User's correspondence with any kind of advertisers or any other merchant (collectively, "Merchants") found on the BME Web site and the BME Product or participation in promotions or sales of goods, tangible or intangible property or services of said Merchants, including without limitation the purchase, sale and delivery of any related goods, tangible or intangible property or services and any other terms, conditions, warranties or representations associated with such advertisements, are solely between End User and the applicable Merchant. End User agrees BME shall not have liability for any loss or damage of any sort arising out of or relating to any dealings with the Merchants or advertisements or as the result of the presence of such advertisements on the BME Web site and the BME Product.

OTHER SITES

BME may provide through the BME Web site or the BME Product, or End Users may include in Messages, links to other Web sites or resources ("Linked Sites"). End User acknowledges and agrees that BME has no control over and is not responsible for the availability of Linked Sites. End User further acknowledges and agrees that BME does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from Linked Sites. End User agrees that BME shall not have responsibility or liability, directly or indirectly, for any damage or loss caused, or alleged to be caused by, or in connection with the use of or reliance on any such content, goods or services available on Linked Sites by End User.

DISCLAIMER OF WARRANTIES

TO THE MAXIMUM EXTENT ALLOWABLE UNDER STATE LAW, USER AGREES THAT USE OF THE BME PRODUCT/SERVICE IS AT END USER'S SOLE RISK. THE BME PRODUCT IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. BME 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, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM BME OR THROUGH OR FROM THE BME PRODUCT SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

END USER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OR FROM THE BME PRODUCT/SERVICE IS DONE AT END USER'S OWN DISCRETION AND RISK AND THAT END USER WILL BE SOLELY LIABLE FOR ANY DAMAGE TO END USER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

BME MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE SILVERPOP PRODUCT OR ANY TRANSACTIONS ENTERED INTO THROUGH THE BME PRODUCT.

LIMITATION OF LIABILITY

End User agrees that BME shall not have any liability for any material or data sent or received or not sent or received through the BME Product, including among other things for the timeliness, deletion, mis-delivery or failure to store any End User communications or End User personalization settings. End User acknowledges and agrees that BME and the Licensors do not endorse the content of any End User or other BME Product user communications and shall not have any liability for any unlawful, harassing, defamatory, privacy invasive, abusive, threatening, offensive, harmful, vulgar, obscene, tortious, or otherwise objectionable End User or other BME Product user content or conduct, or End User or other BME Product user content or conduct that infringes or may infringe the Intellectual Property Rights or other rights of another. End User specifically agrees that BME shall not have any liability for any content sent or received using the BME Product and/or included in the BME Product by any third party.

END USER AGREES THAT BME, THE LICENSORS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS AND AFFILIATES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING OUT OF OR RESULTING FROM (I) THE USE, INABILITY TO USE OR DELAY IN THE BME PRODUCT/SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (III) ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH OR FROM THE BME PRODUCT; (IV) MESSAGES OR CONTENT RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SILVERPOP PRODUCT; (V) UNAUTHORIZED ACCESS TO OR ALTERATION OF END USER'S TRANSMISSIONS OR DATA; OR (VI) INTERRUPTION, SUSPENSION OR TERMINATION OF THE BME PRODUCT/SERVICE REGARDLESS OF WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF BME HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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 END USER.

BME MAKES NO CLAIMS THAT THE BME PRODUCT/SERVICe OR THE CONTENT ARE APPROPRIATE OR MAY BE DOWNLOADED OUTSIDE OF THE UNITED STATES. ACCESS TO THE BME PRODUCT/SERVICE OR THE CONTENT MAY NOT BE LEGAL BY CERTAIN PERSONS OR IN CERTAIN COUNTRIES. END USER'S USE OF THE BME PRODUCT/SERVICe FROM OUTSIDE OF THE UNITED STATES IS AT END USER'S OWN RISK AND END USER IS RESPONSIBLE FOR COMPLIANCE WITH THE LAWS OF END USER'S JURISDICTION.

19. TERMINATION

If End User is dissatisfied with any portion of the BME Product/Service, or with any provision of the TOS, or any subsequent modifications thereto or becomes dissatisfied with the BME Product in any way, End User's sole and exclusive remedy is to terminate End User's account. End User may terminate End User's account under these Terms of Service for any reason and at any time by notifying BME and discontinuing End User's use of the BME Product/Service and destroying all materials obtained from the BME Product/Service and all related documentation and all copies and installations thereof. Upon termination of the BME Product/Service, End User's right to use the BME Product/Service shall cease immediately. Termination of the TOS shall not have any effect on End User's obligations under any other agreement related to the BME Product/Service. BME shall not have liability to End User or any third party for termination of BME Product/Service. End User shall have no right and BME will have no obligation thereafter to forward any unread or unsent messages to End User or any third party.

BME may immediately terminate the BME Product/Service or End User's access to the BME Product/Service should End User's conduct fail to conform with these Terms of Service, including but not limited to the terms of conduct set forth in Sections 6 and 9, or without prior notice for any reason whatsoever in BME's sole discretion. Upon termination, End User must destroy all materials obtained from the BME Product and all related documentation and all copies and installations thereof. If BME terminates End User, BME may immediately delete all Messages in End User's account and bar any further access to such Messages or the BME Product by End User.

MODIFICATIONS TO THE SERVICE AND TERMS OF SERVICE

BME may modify or discontinue the BME Product/Service upon notice to End User or change the Terms of Service from time to time. End User will be notified of any such changes with a link notifying of a change from the opening page on the BME Web site and via e-mail. End User will be asked to review the new TOS. By continuing to use the BME Product End User agrees to be bound by the modifications to the Terms of Service. End User agrees that BME shall not have liability to End User or any third-party for any modification or discontinuance of the BME Product/Service.

GENERAL PRACTICES REGARDING USE AND STORAGE

You acknowledge that BME may establish general practices and limits concerning use of the BME Product/Service, including without limitation the maximum number of days that e-mail messages or other uploaded Content will be retained by the BME Product, the maximum number of e-mail messages that may be sent from or received by an account on the BME Product/Service, the maximum size of any e-mail message that may be sent from or received by an account on the BME Product/Service, the maximum disk space that will be allotted on BME's servers on Your behalf, and the maximum number of times (and the maximum duration for which) You may access the BME Product/Service in a given period of time. You acknowledge that BME reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that BME reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

GENERAL

THE TERMS OF SERVICE AND THE RELATIONSHIP BETWEEN END USER AND BME SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS. End User and BME agree to submit to the personal jurisdiction of the courts located within the state of California. The failure of BME to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of BME Product/Service remainsmall in full force and effect. End User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the BME Product/Service or the Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainsmallder of that provision and all remainsmalling provisions of the TOS shall be valid and enforceable to the fullest extent permitted by applicable law. BME agrees to perform the BME Products/Services hereunder as an independent contractor, and in no event shall BME's employees and/or agents be deemed End User's employees and/or agents. The Terms of Service constitute the entire agreement between the parties concerning this subject matter, and supersede and cancel any and all prior or contemporaneous agreements or contracts, whether written or oral. Each party acknowledges that it is not entering into this Agreement on the basis of any representation not expressly contained in the Terms of Service. This TOS and all rights and obligations may not be assigned in whole or in part by You without the prior written consent of BME. BME shall not be liable for failure to perform any of its obligations hereunder if such failure is caused by an event outside its reasonable control, including but not limited to, an act of God, war, or natural disaster. All terms which by there nature survive termination of the TOS shall so survive.

End User agrees that BME and its designees may in their sole discretion prohibit End User's use of the BME Product/Service if they believe End User has in any way violated the Terms of Service.

COPYRIGHTS

BME respects the intellectual property of others, and we ask our users to do the same. If You believe that Your work or another party's work has been copied in a way that constitutes copyright infringement, please provide BME the following information:

• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
• A description of the copyrighted work that You claim has been infringed;
• A description of where the material that You claim is infringing is located on the site;
• Your name, address, telephone number, and e-mail address;
• A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• A statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf

VIOLATIONS

Please report any violations of the TOS to:

Legal Department
Benchmarkemail.com
1777 Bellflower Blvd. #100
Long Beach, CA 90815
By phone: (562) 961-5583
By e-mail: service@bmesrv.com