1. THE SERVICE
The Service is an enhanced or value added system offering a variety of value added features and services in addition to the ability to make international telephone calls and send and receive voice messages by calling a toll free number to access an Telestial location. The Service includes all products and services which are described on the Telestial website or which eKit.com otherwise agrees to provide to you.
2. APPLICATION AND VARIATION OF TERMS AND PRICING
3. CHARGES AND USE OF SERVICE
You agree to pre-pay for the Service by debiting your credit card the selected amount. The cost of the Service you use will be debited against the prepaid credit. You acknowledge that you are solely responsible for ensuring that no unauthorised use of your account or PIN occurs and that any risk associated with the transmission of information over the internet or through the Service is borne by you. You agree to pay the charges for use of the Service (whether use of your PIN is authorised by you or not) in accordance with the then current pricing structure. You must notify ekit.com immediately if your PIN is stolen or otherwise passes out of your control so that access by that PIN to the Service can be terminated. Until such notification is received by ekit.com you are responsible for all charges associated with use of the PIN.
4. MEMBER PRIVACY
5. MESSAGE CENTER STORAGE, OUTBOUND MESSAGES AND OTHER LIMITATIONS
The amount of storage space per member is limited to 10MB, unless the member has paid an annual fee to upgrade to either the 50MB or 100MB Premium email service, and some messages may not be processed due to space constraints or outbound message limitations. You agree that ekit.com is not responsible or liable for the deletion of, failure to store or non-deliveries of email messages.
6. MEMBER CONDUCT
The Service is provided to individuals only. Any unauthorised commercial use of the Service, or the resale of its services, is prohibited. You must not use the Service to solicit business for any competitive service. You agree to abide by all applicable local, state, national and international laws, regulations, ordinances, by-laws and rules and are solely responsible for all acts or omissions that occur under your account name or password, including, without limitation, the content of your transmissions through the Service. By way of example, and not as a limitation, you agree not to:
A. use the Service in connection with chain letters, junk email, spamming, or any duplicative or unsolicited messages (commercial or otherwise);
B. harvest or otherwise collect information about others, including email addresses, without their consent;
C. create a false identity or forged email address or header, or otherwise attempt to mislead others as to the identity of the sender or the origin of a message;
D. transmit through the Service unlawful, harassing, defamatory, abusive, threatening, harmful, vulgar, obscene, offensive or otherwise objectionable material;
E. transmit any material that may infringe the intellectual property rights or other rights of third parties, including without limitation, trade marks or copyright;
F. transmit any material that contains viruses, trojan horses, worms, time bombs, cancelbots, or any other harmful or deleterious programs;
G. use the Service to violate any applicable law restricting the export or import of data, software or any other content:
H. interfere with or disrupt networks connected to the Service or violate the regulations, policies or procedures of such networks;
I. gain or attempt to gain unauthorised access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or by any other means; or
J. interfere with another member's use and enjoyment of the Service or another entity's use and enjoyment of similar services.
K. use the Service in any unethical manner or contrary to accepted community standards.
7. NO SPAM; DAMAGES
ekit.com will immediately terminate any account that it believes, in its sole discretion, is transmitting or is otherwise connected with any spam or other unsolicited bulk email. In addition to ekit.com's other rights or remedies, you agree to pay ekit.com the sum of $US5 for each piece of spam or unsolicited bulk email transmitted from or otherwise connected with your Telestial account (being ekit.com's genuine pre-estimate of the damage which it would suffer), or ekit.com's actual damages, whichever is greater.
8. PROPRIETARY RIGHTS TO CONTENT
You acknowledge that content, including but not limited to text, software, music, sound, photographs, video, graphics or other material accessible to you by virtue of membership is protected by copyrights, trademarks, service marks, patents or other intellectual property rights and laws. Unless you are expressly authorised to do so, you must not sell, lease, modify, copy, republish, upload, download, post, broadcast, transmit, or distribute in any way content available through the Service, including code and software. You acknowledge that any information provided by or through Telestial is for information purposes only and is not intended to constitute professional advice.
All product and service marks that appear on the Telestial web site that are not Telestial marks are the trade marks of their owners. References to any names, marks, products or services of third parties or hypertext links to third party sites or information do not constitute or imply endorsement, sponsorship or recommendation of the third party information, product or service.
10. SUSPENSION OF SERVICE
11. EXCLUSION OF WARRANTIES AND LIMITATION OF LIABILITY
To the extent permitted by law all terms, warranties, undertakings, inducements and representations relating to the Service are excluded and ekit.com will not be liable for any loss or damage (including without limitation indirect, special or consequential loss or damage) arising from the Service whether or not caused by any negligent act or omission. If any legislation implies any term or warranty that cannot be excluded, ekit.com's sole liability will be, in the case of goods or services, to resupply of the goods or services, or to pay for the cost of having the goods or services resupplied. To the extent permitted by law, ekit.com is not liable for the unavailability of the Service at any time or for any reason, or for any failure of the Service to submit, receive or accept any calls or messages. To the extent permitted by law, ekit.com disclaims any warranty in relation to the performance, operation, reliability or availability of the Service. Without limiting the preceding provisions of this clause, ekit.com expressly disclaims liability for any loss, damage, costs, expenses and liabilities of whatever nature arising (directly or indirectly) from the use of products proprietary to, or provided by, third parties, or from any recommendation by ekit.com that you use or accept such products.
15. GOVERNING LAW
The laws of California govern this Agreement and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of that jurisdiction.
A single or partial exercise of a right does not preclude a further exercise of that right or the exercise of another right. Failure by a party to exercise a right or delay in exercising that right does not prevent its exercise or operate as a waiver. A waiver is only effective in the specific instance and for the specific purpose for which it is given.
19. CUMULATIVE RIGHTS
The rights and remedies of a party under these Terms and Conditions do not exclude any other right or remedy provided by law.
20. ENTIRE AGREEMENT