Terms of Service
Effective October 1, 2015
The Services consist of Voice by Pigeonly, Photos by Pigeonly, Print by Pigeonly, and Letters by Pigeonly, as well as any other services that Pigeonly provides to you in connection with the foregoing. The Services enable you to send certain material to, or otherwise communicate with, third parties in tangible printed form or via electronic communications (“Communications”). Pigeonly reserves the right to modify, suspend, or discontinue the Website and any or all of the Services at any time for any reason and without prior notice.
You can obtain the real-time status of your user account at any time by logging into the Website.
You are responsible for obtaining and maintaining all computer hardware, software, and communications equipment needed to access the Services, and for paying all charges for your communications service used to access the Services (e.g., wireline or wireless broadband, voice telecommunications, text messages, etc.). You acknowledge that you may be charged by your communications carrier(s) for text messages sent or received in connection with the Services or for your use of the Internet to access the Website and Services. Pigeonly is not responsible for the performance of your communications carrier(s). T-Mobile is not liable for delayed or undelivered messages.
By registering for a user account with Pigeonly and providing Pigeonly with your email address, you agree to receive correspondence from Pigeonly relating to your account and the Services via email. By providing Pigeonly with your wireless number, you agree to receive informational text messages from Pigeonly, including but not limited to alerts when someone has tried to contact you, messages about the Services and updates thereto, and information about your account. Pigeonly may also send you text messages regarding new service offerings and products that you do not currently use, but only pursuant to your express written consent. By accepting the SMS Terms you give written consent to receiving advertisements and other telemarketing messages from Pigeonly on your wireless telephone, via autodialed text messages. This consent is not a condition of purchasing or using Pigeonly’s goods and services. You may opt out of receiving text messages from Pigeonly by texting “STOP” to 90358 or disabling your account. If at any time you forget what keywords are supported, just text “HELP” to 90358] In the event that you change your wireless number, you agree to promptly notify Pigeonly that your number has changed.
You agree to abide by all local, state, national and international laws and regulations applicable to your use of the Website and Services, and you are solely responsible for all acts or omissions that occur in connection with your account, including without limitation the content of any Communications that you send through a Service. You also represent and warrant that you are the sender of all Communications sent through the Services in connection with your account. Pigeonly is not be liable for any misuse of the Services by you.
You agree that your use of the Website and Services is for personal, non-commercial purposes only. You agree that your use of the Website and Services shall not include:
- Any resale or attempt to resell any part of the Services
- Using the Services to market any product or service or to initiate unsolicited Communications relating to any commercial enterprise
- Defamatory, threatening, obscene, harassing, or otherwise unlawful Communications or Communications that incorporate the proprietary material of a third party
- Any illegal, fraudulent, abusive, improper, or inappropriate use of the Website or a Service
- Misleading others as to your identity by creating a false identity, impersonating the identity of someone/something else, or providing contact details that do not belong to you
- Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks
- Attempting to gain unauthorized access to, or defeat or violate security measures in connection with, the Website, a Service, or other accounts, computer systems, or networks accessible via the Services, through password mining, phishing, malware, or any other means
- Interfering with another’s use and enjoyment of the Website or Services
- Engaging in any other activity that could subject Pigeonly to criminal liability or a civil penalty or judgment
Violations of the foregoing may result in civil or criminal liability. Pigeonly may investigate violations of these Terms and may involve and cooperate with law enforcement authorities in prosecuting users of the Website or a Service in violation of these Terms. Among other things, Pigeonly may share your Communications and other information about your account with the appropriate authorities for investigation and prosecution if Pigeonly believes that you have violated these Terms or if otherwise requested by such an authority.
Username / Password
As part of the registration process to open a user account you will need a username and/or password. You agree to provide Pigeonly with accurate and complete information during the registration process and to update that information promptly when it changes. You agree to notify Pigeonly of any known or suspected unauthorized use(s) of your user account and any known or suspected breach of Pigeonly’s security, including the loss, theft, or unauthorized disclosure of your username or password. You shall be responsible for maintaining the confidentiality of your password.
Rates and Payment
The promotional credits we provide, rates and fees that you will be charged for use of the Services are set forth on the Website and are subject to change by us from time to time in our sole discretion. Any such change to Pigeonly’s promotions, rates or fees shall take effect on the date that such change is posted on the Website. Pigeonly’s rates and fees may be exclusive of applicable taxes and surcharges, for which Pigeonly may separately bill you. To the extent that you are responsible for any additional taxes or surcharges in connection with the Services, you agree that you will pay them when due. You are responsible for payment for a Service if Pigeonly fulfills its obligations with respect to the Service even if the Communication that you attempted to send did not reach its intended recipient due to matters beyond Pigeonly’s reasonable control. As between you and Pigeonly, you are responsible for all charges related to purchases made using your account and payment methods. In the event of non-payment by a customer under these Terms, Pigeonly shall be entitled to immediately proceed with collection remedies and shall be entitled to recover from you any costs, fees, and expenses in connection with such collection efforts. You agree to pay in full each month: (1) monthly subscription fee for your Pigoenly services; (2) activation fees, monthly transaction and/or service fees and one-time set-up charges, if any, (3) any applicable taxes, recovery fees and surcharges that Pigeonly Inc, pays to municipalities and other governmental entities and may pass on to you.
Pigeonly will only accept payment using credit/debit cards online, or money orders and government-issued checks via post. Pigeonly will charge you for the Services using your indicated method of payment immediately after you confirm the payment method and amount. Your account will be credited within 24 hours of Pigeonly verifying receipt of your payment. If you have elected to make a payment by credit card and Pigeonly does not receive payment from the credit card issuer, you agree to pay all amounts due immediately upon demand by Pigeonly. Pigeonly shall not be responsible for any errors or transmission failures in connection with Pigeonly’s charging and collection of funds from your indicated payment method, nor for any actions taken by the provider of the payment method you choose, which could include refusal to authorize the charge. In addition to these Terms, any payments made by you may be subject to an agreement between you and the provider of the payment method.
You are permitted to access the Website, the Services, and any content provided by Pigeonly solely for the purpose of receiving information about Pigeonly’s business and products, purchasing and utilizing the Services, communicating with Pigeonly, or otherwise as stated on the Website. Pigeonly hereby grants a worldwide, fully paid-up, perpetual, non-exclusive, non-transferable license to you to use the Website and Services solely for their intended purpose as determined by Pigeonly in its sole discretion.
Pigeonly may hold or license from third parties copyrights, trademarks, patents, trade secrets, or other intellectual property rights (“IPR”) in connection with the Website and Services. Except as expressly provided in these Terms, the availability of the Website and Services do not give you any license to this IPR. All such IPR is the sole property of Pigeonly or its licensors, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not copy, reproduce, retransmit, modify, alter, create any derivative works, reverse engineer, decompile, or disassemble any portion of the Website or Services, including any proprietary communications protocol used by the Website or Services, without the express written permission of Pigeonly.
You represent and warrant that you own and have the right to use, modify, publicly perform, publicly display, reproduce and distribute any content you provide to Pigeonly, including content that you include in Communications. By providing such content to Pigeonly, you grant Pigeonly the perpetual, irrevocable, worldwide, non-exclusive, royalty-free right and license to use, modify, publicly perform, publicly display, reproduce, distribute, and sub-license such content, in whole or in part, in any formats and through any channels.
The Website may contain links to third-party websites. These links are provided solely as a convenience to you and not as an endorsement by Pigeonly of the contents on such third-party websites. Pigeonly is not responsible for the content of linked third-party websites and does not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk.
No Warranty; Limitation of Liability
Although Pigeonly utilizes electronic and physical security to reduce the risk of improper access to, or manipulation of, your account information and Communications during transmission and storage, Pigeonly cannot guarantee the security or integrity of either. Pigeonly shall have no liability for breaches of security or integrity of your account information or Communications, for third-party interception of either in transit, or for any damage which may result to your computer or other property resulting from your use of the Website or Services. You acknowledge that your account information and Communications are transmitted unencrypted and that eavesdropping of Communications by third parties is possible. Pigeonly recommends that you ensure sensitive and valuable information is communicated by a protected and/or encrypted method provided by a third-party rather than through use of the Services.
Pigeonly makes no warranty or guarantee that the Services will be available at any particular time, that Communications will reach their intended recipient, that the Services will be timely or error free, or that you will be able to access the Services from any particular location. Pigeonly will not be liable for any act or omission of any other company or companies furnishing a portion of the Services (including without limitation your communications carriers and Pigeonly’s subcontractors), for any act or omission of a third party, for equipment that Pigeonly does not furnish, or for damages that result from the operation of customer-provided systems, equipment, facilities or service that are interconnected with the Services.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE WEBSITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE;” PIGEONLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; AND PIGEONLY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE WEBSITE OR SERVICES.
PIGEONLY SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY IN CONNECTION WITH THESE TERMS, THE WEBSITE, OR THE SERVICES FOR ANY (i) INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES; (ii) LOSS OF PROFITS, CUSTOMERS, OR GOODWILL; OR (iii) COST OF PROCUREMENT OF SUBSTITUTE SERVICES, IN EACH CASE WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR NEGLIGENCE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PIGEONLY’S TOTAL LIABILITY ARISING DIRECTLY OR INDIRECTLY IN CONNECTION WITH YOUR USE OF THE WEBSITE OR SERVICES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY YOU TO PIGEONLY HEREUNDER DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT THAT CAUSED SUCH DAMAGES.
User Warranties; Indemnification
You warrant and represent to Pigeonly that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in these Terms or in the performance of such obligations will place you in breach of any other contract or obligation.
You agree to indemnify and hold harmless Pigeonly and its affiliates and each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements and attorneys’ fees, including attorneys’ fees incurred from counsel selected by Pigeonly in its sole discretion) directly or indirectly arising from or relating to your use of the Website or Services and you Communications. You agree to cooperate fully in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, and Pigeonly reserves the right, at your expense but using counsel selected by Pigeonly, to assume the exclusive defense and control of any matter that is subject to indemnification by you.
Termination, Cancellation and/or Suspension
If at any time you breach these Terms, Pigeonly may elect to suspend or terminate your use of the Website and/or Services in whole or in part and without prior notice, and Pigeonly may recover any damages from you arising from the event(s) giving rise to the suspension or termination. Your obligation to pay all amounts accrued and owed by you shall continue even after any suspension or termination of your access to the Website or Services. Upon termination, for any reason, you agree to immediately cease using the Website and Services. Pigeonly shall have no obligation to you after any termination or cancellation of these Terms. Should Pigeonly terminate your account while you have credits in your account, Pigeonly shall refund to you a fair monetary value of such credits (as determined by Pigeonly in its sole discretion) less any expenses that may be incurred by Pigeonly, including, without limitation, for payment of transfer duties, legal costs, third-party costs, or penalties.
You are free to terminate or cancel your use of the Services at any time and for any reason. Notwithstanding the foregoing, Pigeonly shall not be obligated to refund to you the reasonable value of any unused credits previously purchased by you unless you terminate the Services due to a breach by Pigeonly of these Terms and Pigeonly fails to cure such breach within thirty (30) days of its receipt of your notice of such breach. All payments made to the prison phone providers or prison facilities on your behalf are non-refundable.
The following provisions shall survive any termination of these Terms: Sections 12-15 (Intellectual Property); Sections 16-19 (No Warranty, Limitation of Liability); Sections 20-21 (User Warranties; Indemnification); Sections 22 and 24 (Termination, Cancellation and/or Suspension); Section 25 (Choice of Law, Arbitration, No Jury Trial, No Class Action); and Sections 26-27 (Miscellaneous).
Choice of Law, ARbtration, no Jury trial, no class action
These Terms shall be governed by and construed in accordance with the laws of the State of Nevada notwithstanding its laws governing conflicts of laws. Except as hereinafter provided, any dispute arising under these Terms shall be settled and determined by binding arbitration in Las Vegas, Nevada in accordance with the provisions of the Federal Arbitration Act, 9. U.S.C. §§1-16, as amended, to the exclusion of state laws inconsistent therewith. The terms of the Commercial Arbitration Rules of the American Arbitration Association shall apply. Notwithstanding the foregoing, the arbitrator may not change, modify, or alter any express condition, term, or provision of these Terms. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction thereof. Notwithstanding the foregoing, Pigeonly may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action you take or threaten to take in violation of these Terms. Any claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. The arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. You and Pigeonly agree that in no circumstance will any dispute between you and Pigeonly be resolved by a jury trial and both parties waive any right to demand a jury trial.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Pigeonly in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, Pigeonly will be entitled to recover costs and attorneys’ fees if it substantially prevails. These Terms shall constitute the complete agreement between the parties. No terms and conditions stated in or attached to your communications to Pigeonly are applicable to these Terms in any way and no such communications shall modify these Terms. Pigeonly shall not be liable for any failure or delay in performing its obligations hereunder if such failure or delay is caused by any cause beyond Pigeonly’s reasonable control. You may not assign these Terms under any circumstances. Pigeonly may assign these Terms at any time without notice.
All notices required hereunder shall be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Pigeonly may provide you notice of updates and amendments to these Terms, changes to the Services, and changes to the rates and fees applicable to the Services by means of a general notice posted on the Website. Any notices from Pigeonly that are specific to you and your account may be provided to you by email to the email address associated with your user account, by written communication sent to the physical address associated with your user account, or by text message to the wireless telephone number associated with your user account. Any notices that you provide to Pigeonly hereunder shall be sent to the following:
Pigeonly Inc, PO Box 7517, Las Vegas, NV, 89101 United States