PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY.
Scope of Services
You may initiate the Services via telephone, via the Site, or other means made available by or on behalf of PlumChoice. We will use commercially reasonable efforts to answer your technology question and resolve your technology problem for a fee as set forth on the Site or as quoted on the telephone, as applicable. We may provide certain portions of the Services via remote control session, online chat, e-mail or on-site. We may set forth limits to the technology we support. Certain Services may have minimum system, bandwidth or other technology requirements. Certain of the Services may only be available on a one-time basis, for a fee (“Individual Services”), as well as certain other subscription Services which are an entitlement to access and use of a Service more than once over a period of time, for a one-time or recurring fee (“Subscription Services”).
We reserve the right to change or modify the Terms at any time.
Your privacy is important to PlumChoice. PlumChoice will treat your personal information in accordance with its current available at http://www.plumchoice.com/privacy.asp, subject to change from time to time. By accessing or using the Services, you agree to our collection, use and disclosure of information about you, your Device, your account and your use of the Services as outlined therein.
Authorization to Access Your Device
You hereby authorize us to access and control your computer or device (collectively, a “Device”) for the purposes of providing Services and/or Software to you.
In connection with delivering the Services, we may also download, install and use software, gather system data, take remote control of your Device and access or modify your Device settings. By accepting these Terms, you hereby grant us the right to connect to your Device, download, install and use software on your Device to gather system data, repair your Device, take remote control of your Device and change the settings on your Device while performing the Services. Other than as set forth in the warranty section below, you agree that PlumChoice has no responsibility or liability under any circumstance at any time for any loss or harm that may arise from or may be related to the Services or the Software.
YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING AND BACKING UP ALL INFORMATION, DATA, TEXT OR OTHER MATERIALS (COLLECTIVELY “CUSTOMER DATA”) AND SOFTWARE STORED ON YOUR DEVICE AND STORAGE MEDIA BEFORE ORDERING THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT PLUMCHOICE OR ITS REFERRAL PARTNERS HAVE NO RESPONSIBILITY OR LIABILITY UNDER ANY CIRCUMSTANCE AT ANY TIME FOR ANY LOSS OR CORRUPTION OF CUSTOMER DATA, SOFTWARE OR HARDWARE THAT MAY ARISE OUT OF THE SERVICES.
Use of Software and Tools
In connection with delivering the Services, we may need to download, install and/or run software on your Device, including, without limitation, software that: provides Device system information to PlumChoice which helps us diagnose and resolve your technology problem; allows PlumChoice to remotely control your Device and modify its settings or software; and generally consists of utilities and other tools to improve Device performance and help resolve your technology problem.
You acknowledge and agree that access and use of all PlumChoice software and third party software and tools accessed, downloaded, installed or otherwise provided or made available with the Services (collectively “Software”) are subject to these Terms as well as the license agreements that may appear or be referenced in connection with your access, download, install and/or use of such Software (“Additional Third Party Software Licenses”). You may not access, download, install or use any Software without agreeing to these Terms and the terms and conditions of any such Additional Third Party Software Licenses without modification. You hereby authorize us to download, install and utilize certain third party Software and accept the terms and conditions of any applicable Additional Third Party Software Licenses on your behalf. Alternatively, we may instruct you to review and accept such terms if they are agreeable to you. You acknowledge and agree that certain of the Software may include trial versions that will expire and cease to function after a certain period of time (usually 30 days) unless you purchase a separate license to continue using such Software. You agree that we may, but are not obligated to, remove any Software downloaded to your Device during the Services after we have completed or terminated the Services.
With regard to any Software and related end-user documentation (including any corrections, updates and upgrades of the foregoing made available to you) for which your acceptance of a separate license agreement is not required (collectively, “PlumChoice Software”), you are hereby granted a revocable, non-exclusive, non-transferable license by PlumChoice to access and use the PlumChoice Software for the sole purpose of receiving the benefit of the Services purchased by you. You may not make any copies of the PlumChoice Software. You agree that the PlumChoice Software is the confidential information of PlumChoice or its third party licensors, providers or suppliers, which you shall not disclose to others or use except as expressly permitted herein. The PlumChoice Software contains copyrighted material, trade secrets, trademarks, patented or patentable inventions and/or methods, and other proprietary information owned or licensed by PlumChoice or its third party licensors, providers, or suppliers. You may not de-compile, reverse engineer, disassemble, attempt to discover any source code or underlying ideas or algorithms of the PlumChoice Software, or otherwise reduce the PlumChoice Software to a human readable form, modify, rent, lease, loan, use for timesharing or service bureau purposes, reproduce, sublicense or distribute copies of the Software, or otherwise transfer the PlumChoice Software to any third party. You may not remove or alter any trademark, trade name, copyright or other proprietary notices, legends, symbols, or labels appearing on or in copies of the PlumChoice Software. You are not granted any title or rights of ownership in the PlumChoice Software. You acknowledge that this license is not a sale of intellectual property and that PlumChoice or its third party licensors, providers or suppliers continue to own all right, title and interest, including but not limited to all copyright, patent, trademark, trade secret, and moral rights, to the PlumChoice Software. The PlumChoice Software may be accessed and used in the United States and Canada only, and any export of the PlumChoice Software to any country, or access or use of the PlumChoice Software from any other country, is strictly prohibited.
You may use the Software only in connection with the Services and for no other purpose. Your right to access and use the Software under these Terms shall remain in full force and effect unless and until terminated by PlumChoice, its third party licensors, providers or suppliers, or until your customer account is terminated. Upon termination of the Services for any reason, you must cease all use of the Software and immediately delete the Software from your Device(s).
As part of the Services, PlumChoice may suggest or deploy certain third party services to you. If you choose to subscribe to or otherwise use any third party services, your use of any such services is subject to the terms of service of such third party service provider. You agree to comply with such provider's terms of service and that the third party provider is solely responsible for delivery of its service(s) to you and your use of them. Third party services include, but are not limited to technical support, portal, training, music, gaming and storage services that PlumChoice may elect to make available from time to time. Violation of such third party provider's terms of service may, in PlumChoice's sole discretion, result in the termination of your customer account and use of service.
You must cooperate with PlumChoice and promptly respond to our requests for information and comply with our requests to take actions to resolve your technology problem.
You agree to promptly notify PlumChoice whenever your personal or billing information changes (including for example, your name, address, telephone number, and credit card number and expiration date). You understand that PlumChoice relies on the information you supply and that providing false or incorrect information, or failing to notify PlumChoice of a change of information, may result in Services being withheld or delayed, or in the suspension or termination of your customer account.
We reserve the right to update or change the Software from time to time, and you agree to cooperate in performing such steps as may be necessary to install any updates, corrections or upgrades to the Software.
Registration, Passwords and Security
In order to access or use certain Software or Services, we may require that you register as a member or user of such Software or Services. During the registration process, you may be asked to designate, or we may designate for you, a user name and password. You are responsible for maintaining the confidentiality of any password or account information you receive from PlumChoice, and are responsible for all activities that occur using that password or other account information. You must provide complete and accurate identification, contact, and other information required as part of the registration process. You must notify PlumChoice immediately upon learning of any unauthorized disclosure or use of your password or other account information. PlumChoice has no liability for any unauthorized use of the Software or any Services under your account or on your Device.
Pricing and Payment
PlumChoice fees and charges for the Services you select are supplied to you during the ordering process and may be available on the Site. You agree to pay the charges applicable to your selected Services, as well as any applicable taxes and other charges including but not limited to activation fees, minimum service fees, no-show fees, fail to cancel fees, termination fees, other nonrecurring charges and set-up fees. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, due to insufficient credit or insufficient funds. Set up fees, activation fees, installation fees and other non-recurring fees, if applicable, will be included in your first bill. Whether you are accessing the Services from your home or away from your home, you are responsible for all telephone, Internet and other communication charges.
Monthly recurring charges for certain Subscription Services will be billed one month in advance; usage charges will be billed in arrears; and Individual Services and certain Subscription Services will be billed and paid in advance, if applicable. PlumChoice or its agent will bill you directly, or charge your credit card, as you request and as approved by PlumChoice.
As part of any Subscription Services purchased by you, you acknowledge and agree that PlumChoice may retain some of your personally identifiable information or billing information for purposes of record retention and for purposes of billing any renewals of the subscription Services.
In connection with Services to be performed on-site, if you do not contact PlumChoice a minimum of 24 hours prior to your appointment for such Services to cancel or otherwise reschedule such appointment, you will be charged, at our option, a missed appointment fee equal to $45.
In connection with Services to be performed via remote control session, if you do not contact PlumChoice a minimum of two (2) hours prior to your appointment for such Services to cancel or otherwise reschedule such appointment, you will be charged, at our option, a missed appointment fee equal to $25.
The Services may be denied or discontinued without notice to you if your credit card provider denies or discontinues providing credit to you for any reason, or you fail to make payment when due or provide us with a new credit card expiration date before the existing one expires.
If any portion of your bill is not paid by the due date, PlumChoice may charge you a late fee on unpaid balances and may also terminate or suspend your Services without notice. In the event PlumChoice utilizes a collection agency or resorts to legal action to recover monies due, you agree to reimburse us for all expenses incurred to recover such monies, including attorneys' fees.
By authorizing PlumChoice to charge your credit card for your Subscription Services, you further authorize PlumChoice to continue to charge your credit card (or a replacement card, if the credit-issuing entity informs PlumChoice that a replacement card has been issued) for all fees associated with the Subscription Services, including renewals. You must contact PlumChoice if you do not wish to renew your Subscription Services. If you do not contact PlumChoice, the Subscription Services that you selected will automatically renew for the same subscription duration that you initially selected, at PlumChoice’s then-applicable fees. PlumChoice reserves the right to charge service fees to your credit card up to eight (8) weeks after the conclusion of service.
Availability of Services
The Services may not always be available in your time zone or geographic location. The Services may not always be available due to system maintenance or Internet service disruptions, and may not be available in the format generally marketed. Moreover, some Devices may be unable to receive the Services even if initial testing shows that your connection was qualified or your Device environment was suitable. PlumChoice or its suppliers may, at any time, without notice or liability, restrict the use of the Services or limit its time of availability in order to perform maintenance activities and to maintain session control.
Use of the Services and Software
Your access and use of the Services and Software is only for your personal and internal business purposes on your Device(s), and not for commercial use, including resale or transfer to others. You may not sell, lease or rent access to or use of the Services or the Software. You may not allow manufacturers, suppliers or vendors of your Device(s), or providers of services relating to such Device(s), to access or use the Services or the Software.
You may not use, download or copy any information, data, text, photographs, graphics, video, or other materials provided with the Services (“Content”) unless: (1) you use the Content solely for personal, informational and non-commercial purposes; (2) PlumChoice’s trademarks and copyright symbol and statement set forth on each page of the Site appears on each downloaded or copied page; and (3) no modifications are made to the Content. PlumChoice reserves the right to revoke the authorization to view, download and print the Content available through the Services at any time, and any such use shall be discontinued immediately upon notice from PlumChoice. Except as expressly provided herein, you may not use, download, upload, copy, print, display, perform, reproduce, publish, license, post, transmit or distribute any Content from the Services in whole or in part without the prior written permission of PlumChoice. Any rights not expressly granted herein are reserved by PlumChoice.
You shall not: (a) “mirror” any Content or Software on any other server without PlumChoice’s prior written permission; (b) use the Services, Content or Software for any illegal purpose; (c) misuse, abuse or make any unauthorized use of any property, network, website, personnel or equipment of PlumChoice or its customers, its partners and its suppliers, including but not limited interfering with or otherwise disrupting networks connected to the Services and/or the Software; (d) engage in any activities or actions in connection with the Content, Services and/or Software that infringe or misappropriate the intellectual property rights of others, including without limitation, copyright, patent, trademark, trade secret and confidential information; (e) engage in any activities that violate the personal privacy or publicity rights of others; (f) access, monitor or use data, traffic, computers, systems, facilities or networks provided with or accessible from the Services and/or the Software, without proper authorization, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; (g) send unsolicited commercial messages (e.g., “SPAM”), advertising, informational announcements or communications in any form in connection with the Services or the Software; or (h) interfere with the Services, the Software or any system, service, network, or person accessible from the Services or the Software, including, without limitation, deliberate attempts to overload a system by the multiple postings of messages.
Modifications to the Services
We reserve the right, for any reason, in our sole discretion and without notice to you, to modify, terminate, change, suspend or discontinue any and all aspects of the Services, including Content, Software, features and/or hours of availability, and, except as otherwise provided below under the heading “Termination,” we will not be liable to you or to any third party for doing so.
You agree that your access and use of the Services, the Software and the Internet, without limitation, is your sole responsibility, is solely at your own risk, and you will comply with all applicable local, state, national and international laws and regulations.
You agree that the Internet is not owned, operated or managed by, or in any way affiliated with PlumChoice, and PlumChoice is not responsible and has no control over the information, content or other materials, some of which may be offensive, malicious or destructive in nature, which may be accessed through use of the Services and/or the Software. You further agree that PlumChoice does not own or control all of the various facilities and communications lines through which Services and the Software may be provided, nor does PlumChoice guarantee access to or through websites, servers or other facilities on the Internet, whether or not such facilities are owned or controlled by PlumChoice.
You agree that PlumChoice cannot and does not guarantee or warrant that data available for downloading through the Services or the Software will be free of defects, infection or viruses, worms, Trojan horses or other code that manifest contaminating, malicious or destructive properties. You are responsible for implementing adequate procedures to satisfy your particular requirements for accuracy of data input and output and for maintaining a means external to the Services and the Software for the reconstruction of any lost data.
You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information you transmit or receive over the Internet. PlumChoice is not responsible for invalid destinations, transmission errors, or corruption or security of your data.
Currently, the Services are only available for residents of the United States and Canada. We may, from time to time, offer access and use of the Services, and/or other promotions to residents of other countries. You agree to comply with all applicable laws and regulations, including without limitation, United States export laws and regulations. You represent and warrant that you are not on the United States’ prohibited party list and not located in or a national resident of any country on the United States’ prohibited country list.
We respect the proprietary rights of software and hardware manufacturers and will not install or support unlicensed materials. The Services, and the Software and Content provided with the Services, are protected by law including copyright, trademark, service mark, patent or other proprietary rights and laws. PlumChoice is the copyright owner or licensee of the Services, Software, and Content, unless otherwise indicated. If you make use of the Services, Software or Content, other than as expressly provided herein, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. We do not grant any license or other authorization to any user of our trademarks, registered trademarks, service marks, other copyrightable material, patents or any other intellectual property by including them with the Services, the Software and/or the Content.
COPYRIGHT NOTICE: Copyright © 2001- 2011 PlumChoice, Inc. All Rights Reserved.
PlumChoice, the PlumChoice logo and all other product names, service names, slogans, and related logos are registered trademarks or trademarks of PlumChoice in the United States and other countries. Except as otherwise permitted under the heading “Use of the Service,” you are not permitted to use these trademarks, or any other PlumChoice trademarks, without the prior written consent of PlumChoice. All other trademarks, product names, trade names, and logos used or displayed through the Services are the property of their respective holders. Use of other company trademarks, trade names, product names and logos or images of the same does not necessarily constitute: (1) an endorsement by such company of PlumChoice and its products and services, and (2) an endorsement of the company or its products or services by PlumChoice.
Links from and to the Site; Other Third Party Software
The Site may contain hyperlinks to Web sites that are not controlled by PlumChoice. PlumChoice is not responsible for and does not endorse or accept any responsibility over the contents or use of these Web sites, including, without limitation, the accuracy or reliability of any information, data, opinions, advice or statements made on these Web sites.
You may not provide any type of link to the Site without the express written permission of PlumChoice. We reserve the right, however, to deny any request or rescind any permission granted by us to link through such other type of link, and to require termination of any such link to the Site, at our discretion at any time.
We may refer other third party services and software to you through the Site or otherwise in connection with the Services and/or the Software. Although we may link or otherwise refer you to such products and services offered by third parties, unless expressly stated to the contrary, such references, links and/or displays in no way mean, imply, suggest or constitute any evaluation or approval by us of those merchants or their products or services. We are not responsible in any way for any other Web sites, products, services or information. Your dealings with other entities promoted on or through the Site, Services and/or the Software, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such other entity. You agree that PlumChoice shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the promotion of such other entities on the Site or otherwise in connection with the Services and/or Software. Likewise, any third parties that may refer you to the Services and/or the Software have no responsibility or liability for the Services and/or the Software provided by PlumChoice.
PLUMCHOICE RESERVES THE RIGHT TO CEASE PROVIDING THE SERVICES AND SOFTWARE FOR ANY REASON AT ANY TIME AND INSTEAD, AS YOUR SOLE AND EXCLUSIVE REMEDY, REFUND THE PRE-PAID, UNUSED FEES PAID BY YOU FOR THE APPLICABLE SERVICES AND SOFTWARE FOR THE TIME PERIOD, IF ANY, AFTER TERMINATION OF THE SERVICES OR SOFTWARE, AS APPLICABLE. IF YOU BREACH THE TERMS, NO REFUND WILL BE PROVIDED. OTHER THAN PROVIDING A REFUND WHEN WE TERMINATE FOR OUR CONVENIENCE, PLUMCHOICE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR TERMINATION OF THE SERVICES FOR ANY REASON. YOU ACKNOWLEDGE AND AGREE THAT UPON TERMINATION, PLUMCHOICE MAY IMMEDIATELY DEACTIVATE OR DELETE YOUR USER ACCOUNT AND ALL RELATED INFORMATION AND FILES IN YOUR USER ACCOUNT AND/OR BAR ANY FURTHER ACCESS TO THE SERVICES.
PlumChoice reserves the right to terminate your Subscription Services, upon notice, if PlumChoice determines, in its sole business judgment, that your Subscription Services is being used (a) fraudulently, (b) maliciously, (c) by any person other than you, (d) for any Device other than a registered system, (e) unreasonably, or (f) in excess of five (5) completed, in-scope Service incidents per any 90 day period. In the event that your Subscription Services is terminated, we will refund to you a pro rata portion of any fees that you have prepaid for the Subscription Services. Subscription Services may be subject to additional requirements, limitations, and restrictions depending on the subscription level you purchased. Please refer to the Site for information about those restrictions. Furthermore, you understand and agree that any Software that is installed as part of any of the Services may cease to operate, update or function properly after termination of the Services.
The Services and the Software may not be successful because the problem may be beyond our ability to resolve. If you have purchased an Individual Service, then the following warranty applies: if you experience a problem with the resolution we provided and you call PlumChoice within five (5) days after the day you originally received the Individual Service, we will use commercially reasonable efforts to try to resolve your problem at no additional charge.
As set forth below, there are no other warranties for the Services or the Software.
We make no warranties or representations with respect to advice, guidance, information or other content posted to the Site or otherwise supplied to the Site by any third party, and expressly disclaims all warranties, express or implied, with respect to any third party content available on the Site.
DISCLAIMER OF WARRANTIES; LIMITATIONS OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES AND SOFTWARE ARE PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, WITH ALL FAULTS. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THESE TERMS AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY PLUMCHOICE (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH EQUIPMENT OR SOFTWARE), PLUMCHOICE, ITS THIRD PARTY LICENSORS, ITS SUPPLIERS (INCLUDING, WITHOUT LIMITATION, GLOBAL SERVICE PROVIDERS), ITS CONTRACTORS, ITS PARTNERS AND ITS PROVIDERS OR ANY DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES OF ANY OF THE FOREGOING (EACH OF THE FOREGOING ARE A “PLUMCHOICE PARTY” AND ALL OF THE FOREGOING ARE COLLECTIVELY REFERRED TO AS THE “PLUMCHOICE PARTIES”), DISCLAIM ANY AND ALL WARRANTIES FOR THE SERVICES AND SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE. NO ADVICE OR INFORMATION GIVEN BY ANY PLUMCHOICE PARTY SHALL CREATE A WARRANTY. USE OF THE SERVICES AND THE SOFTWARE IS AT YOUR OWN RISK AND IS NOT WARRANTED.
NO PLUMCHOICE PARTY WARRANTS THAT THE SERVICES AND SOFTWARE WILL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE. PLUMCHOICE SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA, OR IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF YOUR DEVICE, RENDER THE SAME OBSOLETE OR OTHERWISE AFFECT ITS PERFORMANCE. NO PLUMCHOICE PARTY MAKES ANY WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICES OR THE INTERNET. NO PLUMCHOICE PARTY MAKES ANY WARRANTY REGARDING THE CONTENT AND INFORMATION ACCESSED BY USING THE SERVICES OR ANY LINKS DISPLAYED. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICES, THE SOFTWARE AND THE INTERNET GENERALLY. DO NOT USE THE SERVICES OR THE SOFTWARE IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.
IN NO EVENT SHALL THE PLUMCHOICE PARTIES BE LIABLE FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, WHETHER FROM CONTRACT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING FROM DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, SOFTWARE, CONTENT OR YOUR DEVICE AND OTHER TECHNOLOGY INCLUDING, WITHOUT LIMITATION, LOST SALES, LOST REVENUE, LOST PROFITS OR OTHER LOSS OF BUSINESS, LOSS OF OR DAMAGE TO DATA, OR COST OF SUBSTITUTE SERVICES EVEN IF ANY PLUMCHOICE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) ANY CLAIMS AGAINST YOU BY ANY OTHER PARTY.
ALL LIMITATIONS AND DISCLAIMERS STATED IN THESE TERMS APPLY ALSO TO EACH PLUMCHOICE PARTY AS THIRD PARTY BENEFICIARIES.
IN NO EVENT SHALL THE TOTAL LIABILITY OF THE PLUMCHOICE PARTIES TO YOU IN THE AGGREGATE FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OR YOUR USE OF THE SERVICES, SOFTWARE OR CONTENT EXCEED THE GREATER OF THE AMOUNT PAID FOR THE SERVICES AT ISSUE OR US$100.00.
ANY RIGHTS OR LIMITS STATED HEREIN ARE THE MAXIMUM FOR WHICH THE PLUMCHOICE PARTIES ARE COLLECTIVELY RESPONSIBLE.
THE REMEDIES EXPRESSLY SET FORTH IN THIS HEREIN ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW OR LIMIT THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, OUR EXCLUSIONS OR LIMITATIONS APPLY TO YOU TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.
PLUMCHOICE RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICES OR FOR YOUR BREACH OF THE TERMS (INCLUDING ANY POLICIES RELATING TO THE SERVICES.
You agree to defend, indemnify and hold harmless PlumChoice, its parents, subsidiaries and affiliates and their respective officers, directors, employees and agents from and against all liabilities, costs and expenses, including reasonable attorney's fees, related to or arising from: (a) any violation of applicable laws, regulations or these Terms by you (or any parties who use your account, with or without your permission, to access the Services or the Software); (b) the use of the Services, the Software or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any parties who use your account, with or without your permission, to access the Services); (c) negligent acts, errors, or omissions by you (or any parties who use your account, with or without your permission, to access the Services or the Software); (d) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with these Terms, except to the extent that such liabilities arise from the active negligence or willful misconduct of the other party; or (e) claims for infringement of any intellectual property rights arising from the use of the Services, Software, or the Internet.
It is agreed that the substantive laws of the Commonwealth of Massachusetts, United States of America, without reference to any conflicts of law principles that would require the application of the laws of any other jurisdiction, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of these Terms. YOU AND PLUMCHOICE CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT LOCATED IN SUFFOLK COUNTY, MASSACHUSETTS FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT, THE SERVICES OR THE SOFTWARE. PlumChoice and you agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Except as otherwise required by law, including Massachusetts laws relating to consumer transactions, any cause of action or claim you may have with respect to the Services or the Software must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. In any action or proceeding arising from or relating in any way to the subject matter of these Terms, you agree that PlumChoice shall be entitled to recover its reasonable attorneys’ fees and costs incurred in connection with said action or proceeding and in the event that PlumChoice prevails. Notwithstanding the foregoing, PlumChoice may bring an action to protect or enforce its intellectual property rights in any applicable jurisdiction.
Notices; Electronic Communications
Notices required under these Terms by you shall be provided to the PlumChoice Customer Service Department. Notices by PlumChoice to you shall be deemed given: (a) when sent to your registered email address, (b) when deposited in the United States mail addressed to you at the address maintained in our records, (c) when hand delivered to your home, or (d) to your email address maintained in our records. Notice of changes to this these Terms will be deemed given upon posting to the pages on the Site.
The information communicated on the Site constitutes an electronic communication. When you communicate with us through the Site or other forms of electronic media, such as e-mail, you are communicating with us electronically. You agree that PlumChoice, on behalf of itself and others who may be involved with delivering the Services (as applicable), may communicate electronically by e-mail and/or may make communications available to you by posting them on the Site, and that such communications, as well as notices, disclosures, agreements and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by us. You understand and agree that (i) the User ID and/or alias of a sender, contained in an e-mail is legally sufficient to verify the sender’s identity and the authenticity of the communication, (ii) an e-mail sent containing your User ID and/or alias establishes you as its originator and has the same effect as a document with your written signature on it, and (iii) an e-mail or any computer printout of it, is a valid proof of the validity of the original content of the electronic communication.
Notices and communications to PlumChoice must be sent to the applicable address given in these Terms or to firstname.lastname@example.org.
This version of the Terms is effective as of November 2011. The failure of PlumChoice to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms 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 remain in full force and effect. PlumChoice may assign or transfer these Terms, in whole or in part, without restriction. You may not assign the Terms or the Services or any of your rights or obligations under the Terms or the Services without PlumChoice’s express written consent. The Terms inure to the benefit of PlumChoice’s successors, assigns and licensees. The headings and titles in the Terms are for convenience only and have no legal or contractual effect. These Terms, together with the other policies and materials specifically referred to herein, all of which are incorporated by reference, constitute the entire agreement between you and PlumChoice with respect to the subject matter hereof and thereof and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to these Terms, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.