TERMS OF USE
THESE TERMS OF USE (“TERMS OF USE”) DESCRIBE THE CONDITIONS SUBJECT TO WHICH PITNEY BOWES INC. (“WE”, “US” OR “PITNEY BOWES”) OFFERS YOU (“YOU” OR A “USER”) ACCESS TO THE PBSMART™MOBILE WEBSITE (THE “PBSMARTMOBILE WEBSITE”), AND THE SERVICES AVAILABLE ON THE PBSMARTMOBILE WEBSITE, INCLUDING WITHOUT LIMITATION, MOBILE WEBSITE DEVELOPMENT AND HOSTING SERVICES (THE “SERVICES”). BY CLICKING THE “I AGREE” BUTTON BELOW YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE, AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN, AS AMENDED FROM TIME TO TIME BY PITNEY BOWES IN ITS SOLE DISCRETION. IF YOU DO NOT AGREE TO BE BOUND BY ANY OF THE TERMS AND CONDITIONS OF THESE TERMS OF USE, YOU MAY NOT USE THE PBSMARTMOBILE WEBSITE OR THE SERVICES.
1. Acceptance of Terms of Use.
This agreement constitutes a legally binding agreement between you and Pitney Bowes. By accessing or using the pbSmartMobile Website or the Services, you acknowledge that you have read, understood and agree to be bound by these Terms of Use and the terms of our privacy statement located at www.pitneybowes.us/legal/privacy-statement.shtml (the “Privacy Statement”), which is incorporated into these Terms of Use. If you do not agree to these Terms of Use, you may not use the pbSmartMobile Website or the Services. You should check these Terms of Use and the Privacy Statement periodically. By posting updated versions of these Terms of Use and/or the Privacy Statement on the pbSmartMobile Website, or otherwise providing notice to you, Pitney Bowes may modify these Terms of Use, the Privacy Statement or any Services in its sole discretion. All changes will become effective upon the posting of revisions on the pbSmartMobile Website or upon your receipt of notice from Pitney Bowes. By accessing or using the pbSmartMobile Website or these Services after these Terms of Use and/or the Privacy Statement are revised, you accept those revisions.
2. User Requirements.
a. Users must be at least eighteen (18) years of age. By using the pbSmartMobile Website and/or the Services, you represent and warrant that you are not less than eighteen (18) years of age and that your use of the pbSmartMobile Website and/or Services does not violate any applicable law or regulation. We may terminate these Terms of Use with you without warning if we have reason to believe you are less than eighteen (18) years of age.
b. We will accept the instructions of any individual who claims to be authorized to direct changes to your account so long as such person presents your username and password or provides other appropriate account identifying information to us. Pitney Bowes will not be responsible or liable for the actions of any individuals who misuse your PB Account (as defined below) or other assets using your username and password or other appropriate account identifying information.
c. When you sign up to the pbSmartMobile Website on behalf of a business with which you are associated, you represent and warrant that you, as the individual who completed the registration and verification processes for such business, (i) have the authority to provide such information, (ii) that the information you have provided to us is true and correct, and (iii) you have full power and authority to act on behalf of that business entity and to bind it to these Terms of Use.
3.Registration and Services Use.
a. Registration. To utilize the pbSmartMobile Website and the Services, you will be required to set-up an account with us (a "PB Account"). When you create a PB Account, you are required to:
(i) provide accurate, current and complete information about your company, as prompted by the registration form while creating a PB Account and prior to using the pbSmartMobile Website and the Services (the "Registration Information"), and
(ii) maintain and promptly update the Registration Information to keep it accurate, current and complete. If you provide any information we believe to be inaccurate, not current or incomplete, we may suspend or terminate your PB Account and remove your access to the pbSmartMobile Website and/or the Services.
b. Account. You will create a password for your PB Account when completing the registration process and providing the Registration Information. As part of the registration process, you will be asked to select a username and password. We may refuse to grant a username that impersonates someone else, is or may be illegal, is or may be protected by trademark or other proprietary rights law, is vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion. You are responsible for maintaining the confidentiality of your username and password and PB Account and are fully responsible for all activities that occur under your password or PB Account. You agree to notify us immediately of any unauthorized use of your password or PB Account, or if you believe your password has been lost or stolen or subject to any other breach of security.
c. MobiSite Development. Through the pbSmartMobile Website and the Services, we will provide you with the ability to create your own mobile website (the “MobiSite”) through our proprietary developed templates (the “pbSmartMobile Templates”). You will provide us with certain relevant content, whether in digital, pictorial, audio, video or other format (the “Customer Content”) for us to upload to the MobiSite. You will have sole control over the Customer Content, and we will not supplement, modify or alter any Customer Content, except as directed by you.
d. MobiSite Hosting and Support. We will provide hosting services and support for the MobiSite in accordance with these Terms of Use (“Hosting”). Hosting will meet reasonable commercial standards for, among other things, packet loss, accessibility, latency, availability, and throughput. We will use commercially reasonable efforts to minimize downtime of the MobiSite and our servers on which the MobiSite is hosted, for maintenance, updates and revisions to the pbSmartMobile Website and other software, hardware and equipment associated therewith. Except as expressly set forth in these Terms of use, we make no representation, warranty, guaranty or other assurances regarding up-time of the MobiSite or the availability or accessibility of the MobiSite. We will maintain a complete and current copy of the MobiSite on a server located at a remote location. In the event that service is interrupted to the MobiSite, the remote server will be activated so that access to the MobiSite continues without interruption. You will provide us with such cooperation as we reasonably request with respect to our obligations under these Terms of Use.
e. Professional Services. If you choose to employ our professional services to create the MobiSite for you (the “Professional Services”), and you pay the appropriate fee as set forth in Section 5 below, we will provide the design, programming and other consulting services as specified in a statement of work or other work schedule that we provide you. We will perform the Professional Services in accordance with any delivery schedule included in the applicable statement of work.
f. Analytics. We may analyze on your behalf, or offer you the ability to analyze, certain data with respect to the MobiSite, for example, the number of visitors, the number of page views, the duration of page views, the number of views that translate into purchases of your products or services, or the use of promotions offered (“Analytics”).
g. Domain Name. Pitney Bowes will be responsible for choosing, obtaining and paying for the domain name under which you will receive a subdomain name for use with the MobiSite. We will provide you with assistance in obtaining the applicable subdomain name. We will own all right, title and interest in and to the domain name and all intellectual property rights related thereto.
4. Use of Wireless Devices.
You acknowledge and agree that SMS, WAP and mobile services are provided via wireless systems which use radios (and other means) to transmit communications over complex networks. We do not guarantee that your use, or any of your customers’ use, of the MobiSite will be private or secure, and we are not liable to you for any lack of privacy or security you or your customers may experience. Separate charges for mobile services from mobile carriers may apply to individuals’ use of the MobiSite, and we are not responsible or liable for any such charges.
5. Fees and Payment.
a. Subscription Fees. For the Services, in the absence of any special offer, discount or promotion to the contrary, you will pay monthly or annual subscription fees, or such other fees agreed upon by Pitney Bowes and you, as evidenced by your selection of options during registration on the pbSmartMobile Website (“Subscription Fees”), and the applicable Subscription Fees or other fees shall be determined in accordance with the fee schedule that Pitney Bowes sets forth from time to time in its sole discretion on the pbSmartMobile Website (the “Fee Schedule”). If you have an annual subscription for access to the pbSmartMobile Website and the Services, that subscription will automatically renew at the end of the initial period, and each subsequent period, for another one year period, and you will be charged in accordance with this Section, unless you notify Pitney Bowes of your intention not to renew the subscription at least sixty (60) days prior to the expiration of the then-current subscription term. We will notify you of the upcoming renewal prior to the sixty (60) day notice period.
b. Professional Service Fees. In addition to the subscription fees described in subsection (a) above, and in accordance with your applicable Fee Schedule, if you elect to use Professional Services in the creation of the MobiSite then you will be responsible for paying a charge (the “Professional Services Fee”) at the rate set forth in your applicable Fee Schedule.
c. Payment. You will pay any monthly or annual Subscription Fees in advance until your account is terminated, by providing Pitney Bowes with your valid credit card and authorization to charge such credit card the fees, or your Purchase Power Account (as defined below) if you have one, in accordance with the Fee Schedule. You will pay any monthly or annual Subscription Fees on the date you first opened your account for the initial period, and on the anniversary of that first payment date for each subsequent annual period and on the same day of the month for each subsequent monthly period during which you are receiving Services. You will pay any Professional Services Fees upon your election of any such Professional Services. Pitney Bowes may, at any time, and from time to time, in its sole discretion, offer discounts or promotions that affect the fees to be paid under any applicable Fee Schedule, and in order to qualify for such discounts or promotions, Users may have to comply with separate terms and conditions.
d. Purchase Power® Account. You may participate in Pitney Bowes’ Purchase Power® program, by providing the requisite information and thereafter ordering meter refills, office supplies, or other services, including the pbSmartMobile Services, through the Purchase Power® program (your “Purchase Power® Account”). When you or an employee or agent of yours with express, implied, or apparent authority to do so places such an order under your Purchase Power® Account “on line”, by telephone or otherwise, your Purchase Power® Account will be charged for the amount of postage, products, and services requested and the related fees, if applicable.
e. Reimbursement. If you utilize the Services for any part of your subscription period, payment is due for the full subscription period, and Pitney Bowes will not reimburse you in the event that you cancel or otherwise terminate these Terms of Use during the subscription period. Any prepayment of your Subscription Fees or your Professional Services Fees (if applicable) will be non-refundable, and Pitney Bowes will not reimburse you in the event that you cancel or otherwise terminate these Terms of Use.
f. Changing Pricing Levels. For any month for which you have already paid during which you increase the number of pages for your MobiSite or the amount of bandwidth your MobiSite uses to an amount that causes you to go to another pricing level in the Fee Schedule, you will be required to (i) pay fees in a prorated amount at the higher level rate on or before the date due for payment for the following month, and (ii) pay fees for the next subsequent month at the new higher pricing level. For any month for which you have already paid during which you decrease your number of active mobile web pages or bandwidth to an amount that causes you to go to a lower pricing level in the Fee Schedule, Pitney Bowes will have no responsibility to, and will not, refund and/or reimburse you in any manner for such decreased Services in that month; however, Pitney Bowes will appropriately charge you at the applicable lower pricing level on the next subsequent due date.
g. Non-Payment; Sales Tax. If Pitney Bowes is for any reason unable to effect automatic payment via your credit card, we will attempt to notify you via email and the Services provided to you will be disabled until payment is received. Amounts paid for the Services, including prepayments, are not refundable. Pitney Bowes is required to collect and remit sales tax from its customers located in jurisdictions where software delivered as a service is taxable and where Pitney Bowes is deemed to have a tax nexus.
h. Changes to Fee Schedule. You are responsible for reviewing the Fee Schedule from time to time. The Fee Schedule is subject to change at any time in Pitney Bowes’ sole discretion. Pitney Bowes will use good faith efforts to notify you prior to the effectiveness of any changes to the Fee Schedule.
6. Acceptable Use.
a. With regard to the Customer Content, you agree to remain solely responsible, and agree to not submit or otherwise communicate materials that are unlawful, defamatory, abusive, harassing or obscene, or that will result in consumer fraud, product liability, tort, breach of contract, injury, damage or harm of any kind to any person or entity. You also agree that you will not communicate anything to the pbSmartMobile Website or in connection with the Services, or place anything on any website linked to the Customer Content, that violates any right of a third party, including copyright, trademark, privacy or other personal or proprietary right.
b. You will not post, disclose or otherwise make available, personally identifiable information of a third party in any information you provide in connection with Customer Content or elsewhere in connection with the pbSmartMobile Website, the MobiSite or the Services, unless you have permission to do so.
c. You agree that you will not use the pbSmartMobile Website, the MobiSite or the Services for the sending of unsolicited email, and you will comply in all respects to the legal requirements of the CAN SPAM Act of 2003 and all applicable regulations.
7. Prohibited Content and Activities.
a. Pitney Bowes prohibits the use of the pbSmartMobile Website or the Services by any person or entity for the development of a MobiSite that is engaged in:
(i) providing, selling or offering to sell illegal goods or services;
(ii) providing, selling or offering to sell pornography, sexually explicit material or adult sexual novelty items;
(iii) posting or disclosing any personally identifying information or private information about children without their consent (or their parents' consent in the case of a minor);
(iv) providing escort or dating services;
(v) providing, selling or offering to sell pharmaceutical, homeopathic, or "natural" health products, and/or nutritional, herbal or vitamin supplements;
(vi) providing online trading, day trading tips, or stock market related content;
(vii) providing or promoting gambling products or services;
(viii) providing or promoting multi-level and/or affiliate marketing programs or schemes; or
(ix) providing or promoting credit repair, get-out-of-debt information or programs, mortgages and/or loans, or real estate prospecting or listing.
You agree that you will not use the pbSmartMobile Website or the Services to create a MobiSite in connection with any of the above-referenced content or activities.
b. You further represent, warrant and agree that, while using the pbSmartMobile Website and/or the Services, you will not: (a) impersonate any person or entity, whether actual or fictitious, or misrepresent your affiliation with any other person or entity; (b) insert your own or a third party’s advertising, branding, or other promotional content into the pbSmartMobile Website or the Services, or use, redistribute, reuse, republish, repurpose, or otherwise exploit such content or service for any purpose or reason, including without limitation, further commercial or promotional purposes; or (c) attempt to gain unauthorized access to other computer systems through the pbSmartMobile Website or the Services.
c. You represent, warrant and agree that you will not:
(i) Engage in spidering, "screen scraping," "database scraping," harvesting of email addresses, wireless addresses, or other contact or personal information, or any other automatic means of data retrieval, obtaining lists of users or other information from the pbSmartCodes Website, including without limitation any information residing on any server or database connected to the pbSmartCodes Website or the Services;
(ii) obtain or attempt to obtain unauthorized access to computer systems, materials, or information through any means;
(iii) use the pbSmartCodes Website or the Services in any manner that could damage, disable, overburden, or impair the pbSmartCodes Website or the Services or interfere with any other party's use and enjoyment of the pbSmartCodes Website or the Services;
(iv) remove, conceal, edit, copy or otherwise alter any trademark, copyright or other proprietary rights notice or any other mark or source identifier included in any content or features made available on or through the pbSmartCodes Website or the Services (for example, in any Podcast, photograph, or text);
(v) attempt (or assist anyone else's attempt) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the pbSmartCodes Website or the Services, or any content thereof, bypass our tools or services to interfere or attempt to interfere with the proper working of the Services or instruct or authorize any third party to do so, or make any unauthorized use thereof; or
(vi) transmit, or otherwise introduce, any viruses, worms, defects, Trojan horses, or any items of a destructive nature through your use of the pbSmartCodes Website or the Services.
d. You represent and warrant that you have all licenses necessary to sell, distribute and advertise the goods and services you offer in connection with the pbSmartMobile Website or the Services.
8.Termination, Disabling Access and Removing Content.
a. Pitney Bowes may terminate these Terms of Use at any time for any reason. In addition, you agree that Pitney Bowes, in its sole discretion, may terminate your PB Account, use of the Services, including without limitation Hosting services, passwords or other access information, for any reason, including, without limitation, if we believe you have violated any applicable laws, regulations, or the Acceptable Use provision, the Prohibited Conduct and Activities provision, the Fees and Payment provision, or any other provision of these Terms of Use. Pitney Bowes may also, in its sole discretion, and at any time, suspend or discontinue providing the Services or access to the pbSmartMobile Website, or any part thereof. In the event that Pitney Bowes terminates these Terms of Use, or terminates or suspends your PB Account or your access to the Services without cause, we will refund appropriate amounts on a pro rata basis, based upon the services you have ordered, and the manner in which you have paid, whether by subscription, or otherwise. Pitney Bowes will have no responsibility to, and will not, refund and/or reimburse you in any manner if it terminates these Terms of Use due to your violation of one or more terms of these Terms of Use or if you terminate these Terms of Use. In no event will Pitney Bowes refund Professional Services Fees. Once terminated, we may remove any of your PB Account Information, electronic communications and related data and files from the pbSmartMobile Website and any other storage.
b. If you have an annual subscription for access to the pbSmartMobile Website and the Services, that subscription will automatically renew at the end of the initial period, and each subsequent period, for another one year period unless you notify Pitney Bowes of your intention not to renew the subscription at least sixty (60) days prior to the expiration of the then-current subscription term. We will notify you of the upcoming renewal prior to the sixty (60) day notice period.
c. Except as set forth above, you may cancel the Services at any time and have your information deleted from our records. To cancel the Services, log in to your account and fill in a cancellation form.
d. You agree that any termination or suspension of your access to your PB Account, the pbSmartMobile Website, the MobiSite or the Services under any provision of these Terms of Use may be effected without prior notice.
e. Pitney Bowes reserves the right to intercept, block, restrict or suspend access to and remove content from the pbSmartMobile Website, the MobiSite and/or your PB Account to prevent harm to the pbSmartMobile Website, the Services, Pitney Bowes or any other user’s PB Account or if it believes that you have violated any laws, regulations or terms and conditions of these Terms of Use, without prior notice and in Pitney Bowes’ sole discretion.
f. If we have terminated these Terms of Use or your PB Account, or disabled your access to the pbSmartMobile Website, the MobiSite or the Services, for cause, you may not further utilize a PB Account, the pbSmartMobile Website, the MobiSite or any Services, for any reason or in any manner. Once your use or access to your PB Account, the pbSmartMobile Website, the MobiSite or the Services has been terminated or disabled, you may not thereafter use a PB Account, the pbSmartMobile Website, a MobiSite or the Services under a new username or identity. In the event that you do return, or attempt to return, to a PB Account, the pbSmartMobile Website, a MobiSite or the Services after your use or access has been terminated or disabled, you will be deemed to have breached these Terms of Use, and we reserve the right to obtain reimbursement from you for any costs and expenses incurred to enforce the terms and conditions of these Terms of Use and otherwise to pursue all rights and remedies available at law or in equity with respect to such breach.
9.Updates, Maintenance and Support.
We may from time to time make available updates, upgrades, enhancements, bug-fixes or other modifications to the pbSmartMobile Website or the Services (collectively, “Modifications”). Such Modifications shall be considered a part of the pbSmartMobile Website or the Services and subject to these Terms of Use, unless such Modifications are accompanied by a separate license in which case the terms of that license will govern. Notwithstanding anything else contained in these Terms of Use, we will have no obligation to continue producing or releasing new versions of the pbSmartMobile Website or the Services or any Modifications thereto. We are solely responsible for providing any maintenance and support services with respect to the pbSmartMobile Website or the Services, as specified in these Terms of Use or required by applicable law. Any User questions, complaints or claims with respect to the pbSmartMobile Website or the Services should be directed to [email protected].
10. Proprietary Rights.
a. This Agreement is for access to the pbSmartMobile Website and use of the Services, and you are not granted any right or license in or to any Pitney Bowes intellectual property, including without limitation, any software. You are prohibited from using, reproducing, copying, in whole or in part, distributing, decompiling, decrypting, reverse engineering, disassembling, displaying, downloading, storing, transmitting, distributing, selling or otherwise commercially exploiting any part of the pbSmartMobile Website, the Services or any Pitney Bowes or Pitney Bowes licensor’s software.
b. As between you and us, we or our licensors, as applicable, own, solely and exclusively, all rights, title and interest in and to the pbSmartMobile Website, the Services, software utilized in furtherance of the pbSmartMobile Website or the Services, any code, data and materials incorporated therein, the look and feel, design and organization of the pbSmartMobile Website and the Services, all the content other than User Content, and the compilation of the content, code, data, and materials on the pbSmartMobile Website and the Services, including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein. Your use of the Services does not grant to you ownership of any content, code, data, or materials you may access on or through the Services.
c. You may access and view the content on the pbSmartMobile Website or the Services on your computer or other device, and make single copies or prints of the content on the pbSmartMobile Website or the Services at your own risk and for your use, provided that you keep intact all copyright and other proprietary notices contained therein and use the same in accordance with all restrictions applicable to your use of the Services in general.
d. As between you and Pitney Bowes, any Customer Content given to us by you, and any content you provide in the creation of the MobiSite, will at all times remain your property, or the property of your licensors. We will have no rights in Customer Content or the look and feel of the MobiSite other than the limited right to use such content for the purposes expressly set forth in these Terms of Use.
11. Trademarks, Copyrights and Copies.
a. The trademarks, service marks, logos and trade dress of Pitney Bowes used on the pbSmartMobile Website are the intellectual property of Pitney Bowes and/or its affiliates and subsidiaries in the United States and throughout the world (collectively "Marks"). All third party trademarks on the pbSmartMobile Website are the property of their respective owners and are used under applicable law or with the owners' permission. Except as provided by applicable law, the Marks may not be used and/or reproduced without the written permission of Pitney Bowes. Those uses that are authorized must comply with Pitney Bowes' trademark usage guidelines (provided when necessary upon request). The images, text, organization and layout (collectively "Materials") of the pbSmartMobile Website, and the pbSmartCode Templates, including any images and text contained therein and in any Customer Materials produced in connection with the pbSmartCode Templates, are the exclusive property of Pitney Bowes Inc. or its licensors, and are copyrighted and protected by worldwide copyright laws and treaty provisions. Subject to fair use exceptions, Pitney Bowes does not authorize any downloading, distribution or republication of any Materials on or from the pbSmartMobile Website, without prior written permission. Pitney Bowes will enforce its intellectual property rights to the fullest extent permitted under the law.
b. Because any republication or other copying of the Customer Materials could violate Pitney Bowes’ or its licensors’ rights as described above with respect to ownership of intellectual property contained in the pbSmartMobile Templates and in Customer Materials, you are expressly prohibited from republishing or otherwise copying the Customer Materials and/or distributing them to third parties. Any such republication or copying shall be a violation of these Terms of Use, and may subject you to damages for violation of intellectual property rights and the obligation to indemnify us for any losses to us caused, in whole or in part, by your violation of this section.
c. The trademarks, service marks, logos and trade dress of your company used on the MobiSite are your intellectual property and/or your affiliates and subsidiaries in the United States and throughout the world (collectively "User Marks"). Title to and ownership of User Marks will remain with the owner. We will use the User Marks exactly in the form provided and in conformance with any trademark usage policies. We will not form any combination marks with the User Marks. We will not take any action inconsistent with your ownership of the User Marks and any benefits accruing from use of the User Marks shall automatically vest in the owner.
12. Third Party Content, Sites and Products/Services.
a. The pbSmartMobile Website will provide links to other web sites belonging to our advertisers and other third parties (“Third Party Sites”). Pitney Bowes does not endorse, warrant or guarantee the products or services available through Third Party Sites, whether or not sponsored, and Pitney Bowes is not an agent or broker or otherwise responsible for the activities or policies of Third Party Sites. Pitney Bowes does not guarantee that offers from any particular third party are actually the terms that may be offered to you if you pursue the offer, or that they are the best terms available. You are solely responsible for any and all consequences of any such activities, transactions, and relationships that you may conduct or form with or through any such Third Party Sites. Any purchases that you make from Third Party Sites are made at your own risk. You agree that Pitney Bowes has no responsibility or liability for such purchases and/or transactions.
b. You agree that Third Party Sites are not under our control, and links to other websites are provided solely for your convenience. You further agree that when you leave the pbSmartMobile Website by any means, including when you click on a button or other link that leaves the pbSmartMobile Website, the website you will land on contains different terms of use and privacy policies that apply.
c. You further agree that Pitney Bowes may terminate any Third Party Site’s ability to interact with the pbSmartMobile Website, the MobiSite or the Services at any time, with or without notice, and in Pitney Bowes’ sole discretion, with no liability to you or to any Third Party Site.
13. The Digital Millennium Copyright Act of 1998 (the "DMCA").
a. In accordance with the DMCA, we will assist in providing recourse for you if you are a copyright owner who believes that materials appearing on the pbSmartMobile Website infringe your copyright. If this is the case, you or your agent may submit a formal Notice of Copyright Infringement containing the following information: (i) identification of what is being infringed, (ii) where the infringements are located, (iii) who is complaining, (iv) how he or she may be contacted, (v) a signed statement of good faith belief that the material is infringing, and (vi) a signed statement made under threat of perjury that the information provided is accurate and the complaint is authorized by the copyright holder.
b. All Notices of Copyright Infringement related to the pbSmartMobile Website or the Services should be sent only to our Copyright Agent by email, fax or mail at: Kathy Belleau Email: [email protected], Facsimile: (203) 460-5788, or Pitney Bowes Inc., One Elmcroft Road, Stamford, Connecticut 06926.
c. If we remove any of your content due to our receipt of a Notice of Infringement, you may supply a counternotice to our Copyright Agent at the contact information above. Any counternotice must include the following: (i) a signed statement that you have a good faith belief that the removal was a result of a misidentification on our part; (ii) a complete listing of your contact information, and (iii) a consent to jurisdiction in Federal Court. If this counternotice is received by our Copyright Agent, a copy of the counternotice will be sent to the original complaining party
14. Indemnification.
You agree to indemnify and hold harmless Pitney Bowes, its subsidiaries and affiliates, and their respective officers, employees and agents, from any and all third party claim, demand, action, suit or other proceeding, and from any and all damages, losses, liabilities costs and expenses (including, without limitation, court costs and reasonable fees of attorneys and other professionals), as incurred, arising out of your use of the pbSmartMobile Website, the MobiSite and/or the Services, your breach of these Terms of Use, your violation of any applicable law or regulation, and/or your infringement of any intellectual property right(s). We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim and to reimburse us for the reasonable costs and expenses thereof.
15. Disclaimer and Limitation of Liability.
a. EACH OF THE PBSMARTMOBILE WEBSITE, THE MOBISITE AND THE SERVICES ARE BEING PROVIDED “AS IS”, WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. PITNEY BOWES, OUR SUBSIDIARIES, AFFILIATES AND EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS SPECIFICALLY DISCLAIMS ANY IMPLIED REPRESENTATION, WARRANTIES OF TITLE, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND THOSE ARISING BY LAW OR THROUGH A COURSE OF DEALING OR USAGE OR TRADE.
b. WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO THE PBSMARTMOBILE WEBSITE,THE MOBISITE OR THE SERVICES, AND OPERATION OF THE PBSMARTMOBILE WEBSITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. IN NO EVENT SHALL PITNEY BOWES, OUR AFFILIATES OR ANY OF OUR OR THEIR OFFICERS, DIRECTORS, EMPLOYEES AND SUPPLIERS BE LIABLE FOR ANY UNAVAILABILITY OR INOPERABILITY OF THE SERVICES OR THE PBSMARTMOBILE WEBSITE, THE MOBISITE, TELECOMMUNICATIONS SYSTEMS OR THE INTERNET, TECHNICAL MALFUNCTION, COMPUTER ERROR, OR OTHER CORRUPTION OR LOSS OF INFORMATION, OR OTHER INJURY, DAMAGE OR DISRUPTION OF ANY KIND THAT IS BEYOND OUR CONTROL.
c. IN NO EVENT SHALL PITNEY BOWES OR OUR AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OR ACCESS TO THE PBSMARTMOBILE WEBSITE, THE MOBISITE, THE SERVICES, OR IN CONNECTION WITH THESE TERMS OF USE (HOWEVER ARISING, INCLUDING NEGLIGENCE). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PITNEY BOWES’ MAXIMUM LIABILITY UNDER THESE TERMS OF USE SHALL BE FOR DIRECT, PROVABLE DAMAGES IN AN AMOUNT NOT GREATER THAN THE FEES ACTUALLY PAID BY YOU IN RESPECT OF THE TRANSACTION THAT IS THE SUBJECT OF THE CLAIM.
16. Notices.
Except as explicitly stated otherwise, any notice to Pitney Bowes shall be given by email to [email protected] with a registered mail copy to Pitney Bowes Inc., One Elmcroft Road, Stamford CT 06926-0700, ATTN: Chief Counsel, Pitney Bowes Communications Solutions, or in the case of notice to you, to the email address you provide during the registration process for the pbSmartMobile Website or the last email address you provided Pitney Bowes with respect to your PB Account. Notice shall be deemed given twenty-four (24) hours after email is sent, unless the sending party is notified that the email address is invalid.
17. U.S. Government Users.
The pbSmartMobile Website and the Services 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 pbSmartMobile Website and the Services are being licensed to U.S. Government users (a) only as a Commercial Item and (b) with only those rights as are granted to all other users pursuant to the terms and conditions herein.
18. Miscellaneous.
The validity and interpretation of these Terms of Use and the legal relations of the parties to it shall be governed by the laws of the State of Connecticut, without regard to its conflict of laws principles. In the event of a dispute, the parties hereto agree to consent to the exclusive jurisdiction of the state and federal courts of the State of Connecticut. If any provision of these Terms of Use is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that these Terms of Use and all incorporated terms and conditions may be assigned by Pitney Bowes in our sole discretion with or without notice to you. You may not assign any of your rights under these Terms of Use to any other person without our prior written consent, which will not unreasonably be withheld. Any attempt by you to assign these rights without our prior consent is void. You may not transfer to any third party any rights you may have to access the pbSmartMobile Website or use the Services. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. Certain of your obligations that by their nature extend beyond the term of these Terms of Use, including your limitation of our liability and indemnification obligations, will survive the termination or expiration of these Terms of Use. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof.