TERMS OF
USE
These Terms of Use (“Terms”) are an agreement between you (“you”) and
JoWoCo
, LLC (including without limitation its
brands, such as Mindless) (“Company”, “Mindless”, “we”, “us” or “our”)
that allows you to use our
software, subscriptions, applications (“apps”), websites and other products and
services,
as long as
you follow the Terms.
By accessing or using any of our websites, content, mobile applications
(“apps”), tools, widgets, subscription products or services, software, API(s),
widgets, and/or other product(s), service(s), data, or information supplied to
you by the Company (collectively, as applicable, the "
Services
")
, you signify your agreement
to (1) all terms and conditions in these Terms, (2) our privacy policy located
on our website (“Privacy Policy”), and (3) any other standard policies or
community guidelines, if any, posted in our Services, which are all expressly
incorporated herein and must also be observed and followed (clauses (1) through
(3) collectively, the “Agreement”).
IF YOU ARE HAVING AN EMERGENCY, CONTACT 911, AND DO NOT USE
THIS SERVICE.
To Use Our Services (defined below), You:
•
May need to register with us to access and use some of our Services
•
Must not initiate or participate in any activities on our Services that
are illegal, harmful, or interfere with anyone's use of our services, including
the sending of e-mail or instant messaging spam
If You Post Content On our Services, You:
•
May post content that you create or have been given permission to post
by the owner, is legal, and doesn't violate this Agreement
•
Are responsible for content, data and information that you post to our
Services and assume all risks of posting personal information online
•
Continue to own the content but grant us a license to use and distribute
your content, subject to and in accordance with this Agreement.
I.
DESCRIPTION OF SERVICES
By accessing or using any Services, including
without limitation by downloading, installing or using any associated software,
APIs or apps supplied by the Company, including any for which the purpose is to
enable you to use the Services (collectively, the "Software", which
is considered a part of the Services), you agree to the terms of this
Agreement. Any reference to the “website
(s)”,
the “web site
(s)”,
the “site
”, getmindless.com
, or other similar references, shall include any and all pages, apps,
subdomains, affiliated domains, brands, products or other areas of our website,
or any other affiliated sites or domains owned or operated by or on behalf of
us, plus any of the online content, information and services as made available
in or through the website. The Services include without limitation all aspects
of the website, or of any app or other product or service, including but not
limited to all products, Software and other applications, features, channels
and services offered therein. Any reference to “content” shall include all
content in all forms or mediums, such as (without limitation) text, software,
scripts, graphics, photos, sounds, music, videos, audiovisual combinations,
interactive features and other materials you may view on, access through, or
contribute to the Services.
You must be
at least 18 years of age, and, where law
requires an older legal age,
of legal age for
contractual consent or older to use this website and/or the other Services.
Due to the age
restrictions, no content or information from the Services falls within the
Child Online Privacy Protection Act (“COPA”) and is not monitored as doing so.
All information and services are exchanged electronically, via the
internet.
You are responsible for
maintaining your own access to the internet
and for obtaining and maintaining any equipment and ancillary
services needed to connect to, access or otherwise use the Services, including,
without limitation, modems, hardware, servers, software, operating systems,
networking, web servers and the like (collectively, “
Equipment
”). You
shall also be responsible for maintaining the security of the Equipment
. You consent to receiving communications electronically. Company is a
privately owned and operated company and does not represent or speak for any
governmental office or authority.
You may acquire additional products, services
and/or content of ours from our websites or Services. We reserve the right to
require that you agree to separate agreements as a condition of your use and/or
purchase of such additional products, services and/or content, which terms will
apply in addition to these Terms.
II.
PASSWORDS AND ACCESS
In order to
access some features of the Services, you may have to register or
create an account. You may never use another's account without permission. When
creating your account, you must provide accurate and complete information.
Registration or subscription to the Services and payment of any applicable fee,
authorizes a single individual to use the Services unless otherwise expressly
stated.
You are solely responsible for
the activity that occurs on your account, and you must keep your account
password secure. You must notify Company immediately of any breach of security
or unauthorized use of your account. Although Company will not be liable for
your losses caused by any unauthorized use of your account, you may be liable
for the losses of Company or others due to such unauthorized use. It is a
condition of your use of the Services that all the information you provide will
be correct, current, and complete; If we believe the information you provide is
not correct, current, or complete, we have the right to refuse you access to
the Services or any of its resources, and to terminate or suspend your access
at any time, without notice.
You shall not download any content, software
or services unless you see a “download” or similar link displayed by Company on
the Services for that content. You shall not copy, reproduce, distribute,
transmit, broadcast, display, sell, license, or otherwise exploit any content
for any other purposes without the prior written consent of Company or the
respective licensors of the content. Company and its licensors reserve all
rights not expressly granted in and to the Services and their content.
You agree not to circumvent, disable or
otherwise interfere with security-related features of the Services or features
that prevent or restrict use or copying of any content or enforce limitations
on use of the Services or the content therein.
III.
YOUR
OBLIGATIONS
You represent and warrant that all
information that you provide to us will be true, accurate, complete and
current, and that you have the right to provide such information to us in
connection with your use of the Services.
You must comply with the terms of any applicable policies posted in our
Services, including any Acceptable Use Policy.
You may not:
1.
restrict or inhibit any other user from using and enjoying the
Services;
2.
post or transmit any unlawful, fraudulent, libelous, defamatory,
obscene, pornographic, vulgar, sexually-orientated, profane, threatening,
abusive, hateful, offensive, false, misleading, derogatory, or otherwise
objectionable information of any kind, including without limitation any
transmissions constituting or encouraging conduct that would constitute a
criminal offense, give rise to civil liability, or otherwise violate any local,
state, national or foreign law, including without limitation the U.S. export
control laws and regulations;
3.
post or transmit any advertisements, solicitations, chain letters,
pyramid schemes, investment opportunities or schemes or other unsolicited
commercial communication (except as otherwise expressly permitted by Company)
or engage in spamming or
flooding;
4.
post or transmit any information or software which contains a virus,
Trojan horse, worm or other harmful
component;
5.
upload, post, publish, reproduce, transmit or distribute in any way any
component of the Services itself or derivative works with respect
thereto;
6.
resell or otherwise exploit for commercial purposes, directly or
indirectly, any portion of the Services, or access to
them;
7.
use email addresses obtained from the Services for solicitation purposes
of any kind, directly or
indirectly;
8.
use data mining, robots or other similar data gathering and extraction
tools;
9.
access (or attempt to
access) this site through any automated means (including use of scripts or web
crawlers
);
10.
make any derivative works based, in whole or in part, on any portion or
all of the
Services;
11.
use
i
-frames,
webpage frames
, or any similar framing,
to enclose
,
capture or distribute
any part of the
Services;
12.
mirror or cache or store
any pages or portions of the
Service;
13.
co-brand any portion of the
Services;
14.
otherwise imply any
relationship with or endorsement of your brands or
services;
15.
use a false email address, impersonate any person or entity, forge
e-mail headers or otherwise disguise the origin of any communication or mislead
as to the source of the information you provide to the
Services;
16.
portray Company or any company affiliated with it in a negative manner
or otherwise portray its Services in a false, misleading, derogatory or
offensive
manner;
17.
use the Services in any manner that could damage, disable, overburden,
or impair our servers or interfere with any other party's use and enjoyment of
the
Services;
18.
attempt to gain unauthorized access to any services or information to
which you have not been granted access through password mining or any other
process;
19.
post or transmit any photograph or likeness of another person without
that person's consent, if and to the extent necessary under applicable
laws;
20.
post, publish, transmit, reproduce, distribute or in any way exploit any
information, software or other material obtained through the Services for
commercial purposes (other than as expressly permitted by the Services and by
the provider of such information, software or other material); or
21.
upload, post, publish, transmit, reproduce, or distribute in any way,
information, software or other material obtained through the Services which is
protected by copyright, or other proprietary right, or derivative works with
respect thereto, without obtaining permission of the copyright owner or rights
holder, or which otherwise violates or infringes the rights of others,
including without limitation, patent, trademark, trade secret, copyright,
publicity, or other proprietary rights.
Company has no obligation to monitor the
Services. However, you acknowledge and agree that Company has the right to
monitor the Services electronically from time to time, and to disclose any
information as necessary or appropriate to satisfy any law, regulation or other
governmental request, to operate the Services properly, or to protect itself or
its customers.
Company reserves the
right to refuse to post or to remove any information or materials, in whole or
in part, that, in its sole discretion, are unacceptable, undesirable,
inappropriate or in violation of this Agreement.
With respect to any Software, including
without limitation subscription software as a service, subject to the terms and
conditions of this Agreement, we hereby grant to you a limited, nonexclusive,
non-transferable license to access and use such Software during the term of
this Agreement, solely by the number of authorized users, and only up to the
approved and mutually agreed usage volumes, as set forth on the applicable
ordering document or as otherwise mutually agreed, and solely for internal and
non-commercial purposes, provided that you shall also comply at all times with
all official documentation, technical manuals,
functional manuals, operator and user guides and manuals.
You shall not, and shall not attempt to (and
shall not authorize or allow any third party to or attempt to): (a) download or
otherwise obtain a copy of the Service (as applicable as such term is used
herein, including any portion thereof) in any form; (b) reverse engineer,
reverse compile, decompile, disassemble, or translate, exploit, or otherwise
derive the source code of the Service or otherwise modify, the Service, or
create any derivative works thereof; or (c) use the Service on behalf of any
third party or for any purpose other than as described in this Agreement; (d)
sell, resell, lease, license, sublicense,
distribute, reproduce, copy, duplicate, or otherwise transfer or exploit the
Service or use it as a service bureau; (e)
post,
send, process or store infringing, obscene,
threatening, libelous, or otherwise unlawful or tortuous material, including
material violating of third party rights; (f) post, send, process or store
material containing software viruses, worms, Trojan horses or other harmful or malicious
computer code, files, scripts, agents or programs; (g) interfere with or
disrupt the integrity or performance of the Service or attempt to gain
unauthorized access to the Service or related systems or networks; (h) remove,
alter or obscure any titles, product logo or brand name, trademarks, copyright
notices, proprietary notices or other indications of the intellectual property
rights and/or our rights and ownership thereof, whether such notice or
indications are affixed on, contained in or otherwise connected to the software
or on any copies made in accordance with this Agreement; (
i
)
remove, alter or obscure any titles, product logo or brand name, trademarks,
copyright notices, proprietary notices or other indications of the intellectual
property rights and/or our rights and ownership thereof, whether such notice or
indications are affixed on, contained in or otherwise connected to the Service,
or documentation, or on any copies made in accordance with this Agreement; (j)
use, or authorize or permit the use of, the Service except as expressly
permitted herein; (k) use the Service to perform any activity which is or may
be, directly or indirectly, unlawful, harmful, threatening, abusive, harassing,
tortuous, or defamatory, nor to perform any activity which breaches the rights
of any third party
. The Service may be used only by you (
i
) for your internal business purposes and only for your
direct benefit; (ii) only by the number of persons for whom a license fee has
been paid, and all such use may only be by those persons using the Service for
the benefit of you in the course and scope of their employment, subject to the
terms hereof; (iii) only in its original form without alteration or combination
with other products, services or software except as expressly authorized in any
applicable documentation; and (iv) in compliance with all applicable laws and
in compliance with all documentation and instructions provided by us. You agree
not to copy, duplicate or imitate, in whole or in part, any concept, idea,
business model, business process, product, service or other intellectual
property or other ideas or content embodied in the Services or learned by you
from your use of or access to the Services.
You agree not to use the Services to violate any local, state, national
or international law or to impersonate any person or entity, or otherwise
misrepresent your identity or your affiliation with a person or entity.
Materials you post to the
Services may not contain URLs or links to websites that compete with the
Services nor other competitive content or references.
We
grant to you a limited, revocable, and nonexclusive right to create a hyperlink
to our publicly available website(s), subject to the terms hereof, provided
that the link does not portray us or our products or services in a false,
misleading, derogatory, or offensive matter, and provided you do not
i
-frame them or alter the content therein or in any way
imply a relationship therewith. You may not use any logo, trademark, or
tradename that may be displayed on this site or other proprietary graphic image
in the link without our prior written consent.
You will keep and protect any of our
Confidential Information as confidential, using at least the same efforts you
use to protect your own confidential information and in no event less than
reasonable and industry standard efforts.
Our “Confidential Information” includes the Services, documentation and
information about the Services and their operation, and any other information
you obtain from or about us or from or about the Services, or any other
information which a reasonable person would or should understand to be
confidential or proprietary in nature.
You agree to return or destroy our Confidential Information when this
Agreement is over. You acknowledge and agree we shall be entitled to seek
equitable relief in any court of competent jurisdiction without the necessity
of posting bond and in addition to such other remedies as may be available
under law or in equity.
Your
confidentiality obligations shall survive termination or expiration of this
Agreement.
While this Section highlights some of your
key obligations, headers and section titles are for convenience only, and you
are bound by all the terms of this Agreement.
IV.
PUBLIC POSTINGS AND LICENSED MATERIALS
We will use reasonable efforts to protect the
confidentiality of certain personally identifiable information you submit to us
(e.g., your address and credit card information submitted by you initially for
the purpose subscribing to the Service) (“Personally Identifiable
Information”), in accordance with the Privacy Policy posted on our
website.
Certain material you may post on our Services
is or may be available to the public, including without limitation any public
profile data, feedback, questions, comments, suggestions, uploads, blog
entries, ratings, reviews, images, videos, poll answers, etc., in any form or
media, that you post via the Services or otherwise (collectively, "Public
Postings").
These Public Postings
will be treated as non-confidential and nonproprietary.
You are responsible for any Public Postings
and the consequences of sharing or publishing such content with others or the
general public
. This includes, for example, any personal
information, such as your address, the address of others, or your current
location. WE ARE NOT RESPONSIBLE FOR THE CONSEQUENCES OF PUBLICLY SHARING OR
POSTING ANY PERSONAL OR OTHER INFORMATION ON THE SERVICES.
Other content or communications you transmit
to us, including without limitation any feedback, data, questions, comments,
suggestions, in any form or media, that you submit to us via e-mail, the
Services or otherwise (to the extent excluding any Personally Identifiable
Information, collectively, "Submissions"), will be treated as
non-confidential and nonproprietary.
By providing any Public Posting or
Submission, you (
i
) grant to Company a royalty-free,
non-exclusive, perpetual, irrevocable, sub-licensable right to use, reproduce,
modify, adapt, publish, translate, create derivative works (including products)
from, distribute, and display such content throughout the world in all media
and you license to us all patent, trademark, trade secret, copyright or
other proprietary rights in and to such content for publication on the Services
pursuant to this Agreement; (ii) agree that we shall be free to use any ideas,
concepts or techniques embodied therein for any purpose whatsoever, including,
but not limited to, developing and marketing products or services incorporating
such ideas, concepts, or techniques, without attribution, without any liability
or obligation to you; (iii) grant to Company the right to use the name that you
submit in connection with such content. In addition, you hereby waive all moral
rights you may have in any Public Posting or Submissions.
You shall be solely responsible for your own
content and any Public Postings and Submissions. You affirm, represent, and
warrant that you own or have the necessary licenses, rights, consents, and
permissions to publish content you post or submit.
You further agree that content you submit via
Public Postings or Submissions will not contain third party copyrighted
material, or material that is subject to other
third party
proprietary rights, unless you have permission from the rightful owner of the
material or you are otherwise legally entitled to post the material and to
grant us all of the license rights granted herein.
You further agree that you will not submit to
the Services any content or other material that is contrary to any posted
“community guidelines” or similarly titled document, if any, which may be
updated from time to time, or contrary to applicable local, national, and
international laws and regulations.
We do not endorse any content submitted to
the Services by any user or other licensor, or any opinion, recommendation, or
advice expressed therein, and we expressly disclaim
any and
all
liability in connection with content. We do not permit copyright
infringing activities and infringement of intellectual property rights on the
Services, and we will remove all content if properly notified that such content
infringes on another's intellectual property rights as set forth herein below.
We reserve the right to remove content without prior notice.
We reserve the right to decide whether your
content violates this Agreement for reasons other than copyright infringement,
such as, but not limited to, pornography, obscenity, or excessive length. We
may at any time, without prior notice and in our sole discretion, remove such
content and/or terminate a user's account or otherwise block access for
submitting such material in violation of this Agreement.
We are not responsible for end user error or
errors in inputs or for errors in any user supplied data.
We do not independently verify the
truthfulness or accuracy of any data or content input into the Services and are
not responsible for the fraud, misrepresentation, negligence or misconduct of
any end user or other third party.
V.
FEES AND PAYMENTS
If and to the extent any portion of the
Services may require a fee payment or incremental payment or subscription, you
agree to pay Company any applicable fees posted for the Services. By completing
and submitting any credit card or other payment authorization through the
Services, you are authorizing Company to charge the fees to the account you
identify. You must keep all billing information, including payment method, up
to date. You agree to pay us for all charges incurred under your account,
including all applicable taxes, fees, and surcharges. You authorize and direct
us to charge your designated payment method for these charges or, if your
designated payment method fails, to charge any other payment method you have on
file with us. Further, you authorize and direct us to retain information about
the payment method(s) associated with your account. If we do not receive
payment from your designated payment method or any other payment method on
file, you agree to pay all amounts due upon demand by us.
You will be responsible for accrued but
unpaid charges, even if your account is canceled by you or terminated by
us.
During any free trial or other
promotion, if any, you will still be responsible for any purchases and surcharges
incurred using your account.
After 30 days from the date of any unpaid
charges, your fee-based Services will be deemed
delinquent
and we may terminate or suspend your account and Services for nonpayment. We
reserve the right to assess an additional 1.5 percent late charge (or the
highest amount allowed by law, whichever is lower) per month if your payment is
more than 30 days past due and to use any lawful means to collect any unpaid
charges. You are liable for any fees, including attorney and collection fees,
incurred by us in our efforts to collect any remaining balances from you.
Except as otherwise mutually agreed in writing, we reserve the right to change
our fees with 30 days’ notice.
You are responsible for all charges incurred
under your account, including applicable taxes, fees, surcharges, and purchases
made by you or anyone you allow to use your account (including your children,
family, friends, or any other person with implied, actual, or apparent
authority) or anyone who gains access to your account as a result of your
failure to safeguard your username, password, or other authentication
credentials or information.
VI.
WARRANTIES AND LIMITATIONS OF WARRANTIES.
If you are not completely satisfied with the
Services, your sole remedy is to cease using the Services.
With respect to any fee-based Services, if
you signed up for designated term or timeframe, you will still be responsible
for payment for the full term.
If you
did not subscribe for any minimum period, then you may cancel at any time on 30
days advanced notice, and cease to use the Services, then you will not be
charged any additional amounts after the effective date of such
termination.
In any case, you will be
responsible for
any and all
charges and activity
accrued prior to your Services termination date, and those obligations will
survive your termination of the Services. Company undertakes commercially
reasonable efforts to ensure that the information it provides is current and
accurate, however, Company does not warrant the accuracy of information.
Company also undertakes commercially
reasonable efforts to protect the confidentiality of any confidential
information you provide, in accordance with the Privacy Policy, however,
Company does not guaranty the confidentiality of such information against
unauthorized
third party
access or system failure.
THE SERVICES, THE WEBSITE, AND ALL
INFORMATION, CONTENT, AND MATERIALS RELATED TO THE FOREGOING, ARE PROVIDED
"AS IS."
EXCEPT AS EXPRESSLY
STATED IN THIS AGREEMENT, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, SYSTEM
INTEGRATION AND ACCURACY OF DATA.
WE DO
NOT WARRANT THAT USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS
FREE.
ALTHOUGH INFORMATION THAT YOU
SUBMIT MAY BE PASSWORD PROTECTED, WE DO NOT GUARANTEE THE SECURITY OF ANY
INFORMATION TRANSMITTED TO OR FROM THE SERVICES AND YOU AGREE TO ASSUME THE
SECURITY RISK FOR ANY INFORMATION YOU PROVIDE THROUGH THE SERVICES.
VII.
LIMITATIONS OF LIABILITY.
IN NO EVENT SHALL WE OR OUR AFFILIATES BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, OR FOR
LOSS OF PROFITS OR DAMAGES ARISING DUE TO BUSINESS INTERRUPTION OR FROM LOSS OR
INACCURACY OF INFORMATION, INCLUDING IF AND TO THE EXTENT ANY OF THE FOREGOING
ARISES IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE
SERVICES, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE AND EVEN IF WE WERE
ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE.
IN NO EVENT WILL THE AGGREGATE LIABILITY OF
US TO YOU FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT OR
THE SERVICES, EXCEED THE TOTAL FEES PAID TO US BY YOU, IF ANY, DURING THE
SIX-MONTH PERIOD PRECEDING THE DATE OF ANY CLAIM (OR $10 IF THE SERVICES ARE
FREE). YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL TERM
BETWEEN YOU AND US RELATING TO THE PROVISION OF THE SERVICE TO YOU AND WE WOULD
NOT PROVIDE THE SERVICE TO YOU WITHOUT THIS LIMITATION.
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD
HARMLESS US AND OUR AFFILIATED COMPANIES, AND EACH OF OUR AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, MEMBERS, AGENTS, AND EMPLOYEES FROM AND AGAINST ALL
LOSSES, EXPENSES, DAMAGES, CLAIMS, JUDGMENTS, COSTS, EXPENSES AND LIABILITIES,
INCLUDING REASONABLE ATTORNEYS' FEES, INCURRED BY US OR SUCH PARTIES AND/OR
ARISING OUT OF OR RESULTING FROM (1) ANY ACTUAL OR ALLEGED VIOLATION BY YOU OF
THIS AGREEMENT (INCLUDING ANY REPRESENTATION OR WARRANTY HEREIN); (2) ANY
ACTIVITY RELATED TO YOUR ACCOUNT BY YOU OR ANY OTHER PERSON ACCESSING THE
SERVICE WITH YOUR PASSWORD; (3) YOUR USE OF AND ACCESS TO THE SERVICES; (4)
YOUR ACTUAL OR ALLEGED VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT
LIMITATION ANY COPYRIGHT, PROPERTY OR PRIVACY RIGHT; (5) YOUR ACTUAL OR ALLEGED
VIOLATION OF ANY LAW, RULE OR REGULATION; AND/OR (6) YOUR CONTENT OR DATA,
INCLUDING IF IT CAUSES ANY DAMAGE TO A THIRD PARTY. YOUR DEFENSE,
INDEMNIFICATION AND HOLD HARMLESS OBLIGATIONS IN THIS AGREEMENT WILL SURVIVE
THIS AGREEMENT AND YOUR USE OF THE SERVICES.
You acknowledge that the information on the
Website and other Services is provided 'as is' for general information only. If
you use the Services to provide any services in any heavily regulated industry,
such as, without limitation, medical, legal, tax or financial advice, you are
fully responsible for all such services, and represent and warrant that you are
appropriately qualified and certified to do so, possessing all necessary
licenses and permits to do so. You indemnify us for any failure by you or your
agents to do so and/or to follow any applicable laws, rules and regulations.
You may use the Services for informational purposes only, as an aid, but only
as one information source among many, and not as the sole basis for making any
decisions; you must conduct proper due diligence and use your own judgment when
making any decisions based on any information, analytics or reports derived
from the Services.
We
shall not be liable for any circumstances arising out of causes beyond our
reasonable control or without our fault or negligence, including, but not
limited to, Acts of God, acts of civil or military authority, fires, riots,
wars, embargoes, Internet disruptions, hacker attacks, or communications
failures, or other force majeure.
If we breach this Agreement, you agree that
your exclusive remedy is to
recover,
from us or any
affiliates, resellers, distributors, and vendors, direct damages up to an
amount equal to your Services fee for one month (or up to USD$10.00 if the
Services are free). YOU CAN'T RECOVER ANY OTHER DAMAGES OR LOSSES,
INCLUDING, WITHOUT LIMITATION, DIRECT, CONSEQUENTIAL, LOST PROFITS, SPECIAL,
INDIRECT, INCIDENTAL, OR PUNITIVE. These limitations and exclusions apply
if this remedy doesn't fully compensate you for any losses or fails of its
essential purpose or if we knew or should have known about the possibility of
the damages. To the maximum extent permitted by law, these limitations and
exclusions apply to anything related to this Agreement such as, without limitation,
loss of content; any virus affecting your use of the Services; delays or
failures in starting or completing transmissions or transactions; claims for
breach of contract, warranty, guarantee, or condition; strict liability,
negligence, misrepresentation, or omission; trespass, or other tort; violation
of statute or regulation; or unjust enrichment.
Some or
all of
these limitations or exclusions
may not apply to you if your state, province, or country doesn't allow the
exclusion or limitation of incidental, consequential, or other damages.
VIII.
DURATION OF TERMS
Once in effect, this Agreement will continue
in operation until terminated by either you or us.
However, even after termination, the
provisions of sections III through XV of this Agreement will remain in effect
in relation to any prior use of the Services by you.
You may terminate this Agreement at any time
and for any reason by providing notice to Company in the manner specified in
this Agreement or by choosing to cancel your access to the Services using the
tools provided for that purpose within the Services.
We may terminate this Agreement without
notice or, at our option, temporarily suspend your access to the Services,
in the event that
you breach this Agreement.
Notwithstanding the foregoing, Company also
reserves the right to terminate this Agreement at any time and for any reason
by providing notice to you either through email or other reasonable means.
After termination of this Agreement for any
reason, you understand and acknowledge that Company will have no further
obligation to provide the Services or access thereto.
Upon termination, all licenses and other
rights granted to you by this Agreement, if any, will immediately cease, but
your licenses to us shall survive, and certain of your obligations (including
payment obligations, if any) will survive in accordance with the terms hereof.
IX. MODIFICATION OF TERMS
Company may change the terms of this
Agreement from time to time.
You will be
notified of any such changes via e-mail (if you have provided a valid email
address) and/or by our posting notice of the changes on the Services (which may
consist of publishing the changes on our website).
Any such changes will become effective when
notice is received or when posted on the Services, whichever first occurs.
If you object to any such changes, your sole
recourse will be to terminate this Agreement.
Continued use of the Services following such notice of any such changes
will indicate your acknowledgement of such changes and agreement to be bound by
such changes.
X.
MODIFICATIONS TO SERVICES
We reserve the right to modify or discontinue
the Services at any time with or without notice to you, including without
limitation by adding or subtracting features and functionality, third party
content, etc.
In the event of such
modification or discontinuation of the Services, your sole remedy shall be to
terminate this Agreement as set forth herein.
Continued use of the Services following notice of any such changes will
indicate your acknowledgement and acceptance of such changes and satisfaction
with the Services as so modified.
XI.
OWNERSHIP
We and/or our vendors and suppliers, as
applicable, retain all right, title and interest in and to the Services, the
website and all information, content, Software, and other software and materials
provided by or on behalf of us, including but not limited to all text, images,
videos, logos, button icons, audio clips, and the look and feel of the website
and our brands and logos, and any data compilations, including without
limitation any data input by or on behalf of us or our third party providers,
and any data to the extent processed by, or resulting as an output of, the
Services, and all Services usage data, statistical data or aggregated data
collected or reported with respect to the any part or all of the Services
, including without
limitation any aggregated and anonymized data extracted or derived from the
Service, including all aggregated and anonymized usage data, statistical data,
transactional data, metadata, market data and other aggregated and anonymized data
collected from user data and files
.
We own the rights to any metadata we collect from or about your use of the
Services. Without limiting the generality of the foregoing, we reserve the
right to create and market public indexes, analysis or insights created from
such data. You agree that you will not copy, reproduce, distribute or create
derivative works from any information, content, software or materials provided
by us, or remove any copyright or other proprietary rights notices contained in
any such information, content, software or materials without the copyright
owner's prior written consent.
Unless otherwise stated, all content in our
websites or other Services, is our property or the property of third
parties. These contents are protected by copyright as a collective work
and/or compilation, pursuant to U.S. copyright laws, international conventions
and other copyright laws.
Your feedback is welcome and encouraged. You
agree, however, that (
i
) by submitting unsolicited
ideas to us, you automatically forfeit your right to any intellectual property
rights in such ideas; and (ii) unsolicited ideas submitted to us or any of our
employees or representatives automatically become our property.
XII.
INTERNATIONAL USERS
The Services are controlled, operated and administered by us from within
the United States. We make no representation that this site is available for
access or use at other locations outside the U.S. However, any access or use
from outside the U.S. is still subject to this Agreement. Access to the
Services is expressly prohibited from territories where this site or any
portion thereof is illegal. You agree not to access or use any information or
materials on the Services in violation of U.S. export laws and regulations, or
in violation of any laws or regulations in the country from which you are
accessing the Services.
Any personal information
which we may collect via the Services may be stored and processed in our
servers located in the United States or in any other country in which we, or
our affiliates, subsidiaries, or agents maintain facilities. You consent to any
such transfer of personal information outside your country of residence to any
such location.
XIII.
THIRD PARTY CONTENT
AND SERVICES
Certain content
(including without limitation advertisements)
on the
Services may be supplied by third parties. Company does not have editorial
control over such content. Any opinions, advice, statements, services, offers,
or other information that constitutes part of the content expressed or made
available by third parties, including without limitation, suppliers and
vendors,
advertisers,
or any customer or user of the Services, are those of the
respective authors or distributors and not of Company or its affiliates or any
of its officers, directors, employees, or agents. In many instances, the
content available on the Services represents the opinions and judgments of the
respective third parties,
whether or not
under
contract with Company.
You
may
enter into
correspondence with or participate in
promotions of such third parties, such as advertisers promoting their products,
services or content on this site. Any such correspondence or participation,
including the delivery of and the payment for products, services or content,
are solely between you and each such third party.
Company neither endorses nor is responsible for the accuracy or
reliability of any opinion, advice, submission, posting, or statement made on
the Services. Under no circumstances shall Company, or its affiliates, or any
of their respective officers, directors, employees, or agents, be liable for
any loss or damage caused by your reliance on any content or other information
obtained through the Services.
The Services may integrate and/or interact
with third party services, such as via APIs or browser extensions. For example,
the Services may leverage APIs from
third parties, and/or rely
on third party browser extensions, and
Company has no
affiliation, association, endorsement, or sponsorship by any other
third party
services with which it integrates or interacts
from time to time (collectively, “Third Party Services”). Company makes no
claim, representation or warranty of any kind, type or nature concerning any
Third Party
Services, nor Company’s or any User’s compliance
with any third party terms of service for any such Third Party Services
(collectively, “Third Party Terms”). It shall be each User’s sole
responsibility to analyze and interpret any applicable
Third
Party
Terms and comply therewith. Each User is solely responsible for
their interpretation of
Third Party
Terms and their
actions relevant to compliance thereof. By using the Services, you hereby
release Company and waive any and all claims or claim rights that you may have
against Company, and release and indemnify Company against any claims that any
third party may have against you, including with respect to your use of any
Third Party Services, including if accessed or used via our Services, and with
respect to Third Party Terms, applicable privacy policies or any other rules or
regulations of such third parties.
Without limiting the generality of the foregoing, we may elect, in our
discretion, to utilize social logins, allowing you to login to the Services via
other
third party
authentication services, such as
(without limitation) your Facebook, Twitter, LinkedIn, Google, or other account
credentials.
You understand that these
are
Third
Party Services
, and this in no way creates and endorsement
of, by or from us to them or vice versa, that we are not responsible for their
logins, systems or data, and that by using such
third party
logins, you may be subject to their respective privacy policies and other terms
of use.
You understand that when using the Services, you will be exposed to
content from a variety of sources, and that we are not responsible for the
accuracy, usefulness, safety, or intellectual property rights of or relating to
such content. You further understand and acknowledge that you may be exposed to
content that is inaccurate, offensive, indecent, or objectionable, and you
agree to waive, and hereby do waive, any legal or equitable rights or remedies
you have or may have against us with respect thereto, and, to the extent
permitted by applicable law, agree to indemnify and hold harmless Company, its
owners, operators, affiliates, licensors, and licensees to the fullest extent
allowed by law regarding all matters related to your use of the Services.
As a convenience to you, Company may provide,
in or through the Services, one or more links to third party web sites or
services and/or provide email contacts respecting third parties. Company makes
no endorsement of such third parties, nor any representation or warranty
regarding anything that takes place between you and any such third parties,
including, without limitation, visits to third party web sites, services, email
correspondence with third parties, and business or other transactions with
third parties found through the Services. Please understand that such third
parties are independent from and not controlled by Company, even if, for
example, a Company link or logo appears on a website linked from this website
or our other Services. It is up to you to read those
third
party
sites’ applicable terms of use, privacy, and other applicable
policies. For example, without limitation, we may outsource operation of
certain aspects of our Services to one or more third parties, and they may have
access to certain data by virtue of operating such Services, subject to their
own policies.
Certain
third parties may be third party beneficiaries to this contract.
For example,
without
limitation
, Apple Inc., Google, Inc.,
or Microsoft Corporation will be a third-party beneficiary to this contract if
you access the Services using applications developed for Apple iOS, Android, or
Microsoft Windows-powered mobile devices, respectively. These
third party
beneficiaries are not parties to this contract
and are not responsible for the provision or support of the Services in any
manner. However, your access to the Services using these devices is subject to
terms set forth in the applicable
third party
beneficiary's terms of service.
XIV.
Digital Millennium Copyright Act
A. If
you are a copyright owner or an agent thereof and believe that any content in
our Services infringes upon your copyrights, you may submit a notification
pursuant to the Digital Millennium Copyright Act ("DMCA") by
providing our Copyright Agent with the following information in writing (see 17
U.S.C 512(c)(3) for further detail):
·
A
physical or electronic signature of a person authorized to act on behalf of the
owner of an exclusive right that is allegedly
infringed;
·
Identification
of the copyrighted work claimed to have been infringed, or, if multiple
copyrighted works at a single online site are covered by a single notification,
a representative list of such works at that
site;
·
Identification
of the material that is claimed to be infringing or to be the subject of
infringing activity and that is to be removed or access to which is to be
disabled and information reasonably sufficient to permit the service provider
to locate the
material;
·
Information
reasonably sufficient to permit the service provider to contact you, such as an
address, telephone number, and, if available, an electronic
mail;
·
A
statement that you have a good faith belief that use of the material in the
manner complained of is not authorized by the copyright owner, its agent, or
the law; and
·
A
statement that the information in the notification is accurate, and under
penalty of perjury, that you are authorized to act on behalf of the owner of an
exclusive right that is allegedly infringed.
Company's designated method to receive
notifications of claimed infringement is by emailing the Copyright Agent at [email protected].
You acknowledge that if you fail to comply with
all of
the requirements of this Section your DMCA notice may not be valid.
B. If you believe
that your content that was removed (or to which access was disabled) is not
infringing, or that you have the authorization from the copyright owner, the
copyright owner's agent, or pursuant to the law, to post and use the material
in your content, you may send a counter-notice containing the following
information to the Copyright Agent:
·
Your physical or electronic
signature;
·
Identification of the content that has been removed or to which access
has been disabled and the location at which the content appeared before it was
removed or
disabled;
·
A statement that you have a good faith belief that the content was
removed or disabled
as a result of
mistake or a
misidentification of the content; and
·
Your name, address, telephone number, and e-mail address, a statement
that you consent to the jurisdiction of the federal court in Florida
,
and a statement that you will accept service of process from the person who
provided notification of the alleged infringement.
If a counter-notice is received by the
Copyright Agent, Company may send a copy of the counter-notice to the original
complaining party informing that person that it may replace the removed content
or cease disabling it in 10 business days. Unless the copyright owner files an
action seeking a court order against the content provider, member or user, the
removed content may be replaced, or access to it restored, in 10 or more
business days after receipt of the counter-notice, at Company's sole discretion.
XV.
CLASS ACTION WAIVER AND ARBITRATION
THIS SECTION CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION
WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH US.
Except if you opt-out as expressly permitted
below, or except to the extent contrary to applicable law ("Excluded
Disputes"), you hereby agree that all disputes between you and us (whether
or not such dispute involves a third party) with regard to your relationship
with us, including without limitation disputes related to these Terms of Use,
your use of the Service, and/or rights of privacy and/or publicity, may, in our
discretion, be resolved by binding, individual arbitration under the American
Arbitration Association's rules for arbitration of consumer-related disputes
and you hereby expressly waive trial by jury. As an alternative, you may bring
your claim in your local "small claims" court, if permitted by that
small claims court's rules. You may bring claims only on your own behalf. You
agree that you shall not participate in any class action or class-wide
arbitration for any claims covered by this Agreement. You also agree not to
participate in claims brought in a private attorney general or representative
capacity, or consolidated claims involving another person's account, if we are
a party to the proceeding. This dispute resolution provision will be governed
by the US Federal Arbitration Act, to the extent permissible. In the event the
American Arbitration Association is unwilling or unable to set a hearing date
within one hundred and sixty (160) days of filing the case, then either we or
you can elect to have the arbitration administered instead by the Judicial
Arbitration and Mediation Services. Judgment on the award rendered by the
arbitrator may be entered in any court having competent jurisdiction. Any
provision of applicable law notwithstanding, the arbitrator will not have
authority to award damages, remedies or awards that conflict with these Terms
of Use.
You may opt out of this
agreement to arbitrate. If you do so, neither you nor we can require the other
to participate in an arbitration proceeding. To opt out, you must notify us in
writing within 30 days of the date that you first became subject to this
arbitration provision. You must use this address to opt out: [email protected].
You must include your name and residence
address, the email address you use for your account with us, and a clear
statement that you want to opt out of this arbitration agreement.
If and to the extent the prohibition against
class actions and other claims brought on behalf of third parties contained
above is found to be unenforceable, then such preceding language in this
Arbitration section will be null and void. This arbitration agreement will
survive the termination of your relationship with us.
XVI.
MISCELLANEOUS.
You shall comply with all laws, rules and
regulations now or hereafter promulgated by any government authority or agency
that are applicable to your use of the Services, or the transactions
contemplated in this Agreement. You may not assign your rights or obligations
hereunder, and any attempt by you to sublicense, assign or transfer any of the
rights, duties or obligations hereunder or to exceed the scope of this
Agreement is void.
In
the event that
Company is sold to a third party, such a sale will not be
deemed a transfer of personal information so long as that third party agrees to
assume Company's obligations as to these Terms of Services and any associated
Privacy Policy.
This Agreement, the
Services, and the rights and obligations of the parties with respect to the
Services will be subject to and construed in accordance with the laws of the
State of {state}, excluding conflict of law principles. By accessing or using
any Services you agree that the statutes and laws of the State of Florida,
without regard to conflicts of law principles thereof, will apply to all
matters arising from or relating to the use thereof. You also agree and hereby
submit to the exclusive legal jurisdiction and venues of the Courts of Broward,
Florida with respect to such matters. This is the entire agreement between you
and Company
with regard to
the matters described
herein and govern your use of the Services, superseding any prior agreements between
you and Company with respect thereto. The failure of Company to exercise or
enforce any right or provision of this Agreement shall not constitute a waiver
of such right or provision. If any provision of this Agreement 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 hereof shall remain in
full force and effect.
You agree that
regardless of any statute or law to the contrary, any claim or cause of action
arising out of this Agreement or related to use of the Services must be filed
within three (3) months after such claim or cause of action arose or be forever
barred.
XVII. INDUSTRY SPECIFIC TERMS (if any)
The Services may include an
SMS text
messaging platform (the “SMS Platform”). The SMS Platform
may
include a service that lets people communicate with one another via text
messaging (and may or may not include voice calls). The SMS Platform may
include a peer-to-peer communication service (Peer-to-Peer Service”) that
facilitates peer-to-peer text messaging (and possibly voice conversations) over
regular 10-digit dialable telephone numbers (“Long Codes”), and may or may not
include a short code service that enables individuals to sign up to be
contacted and share their information via application-to-person messaging over
a common short code (“Short Code Service”). Using our Peer-to-Peer service,
individuals may be able to text and call, and be texted and called by, other
individuals who work or volunteer for organizations and businesses who are our
customers. This Agreement governs all use of the Services, including without
limitation all use of the SMS Platform by entities and/or individuals who send
an SMS or MMS message to a short code (if applicable), or who make a call (if
applicable) or send an SMS or MMS message to a long code managed by one of our
customers (as further defined herein, an “end user” or “subscriber”). Any text
messages sent and/or received via the SMS Platform are subject to standard text
messaging rates. Additionally, text messages or voice calls sent and/or
received via the SMS Platform may count towards a quota depending on your
carrier’s plan. Text messaging, and voice rates, and quotas can normally be
found by asking your carrier.
OPT-OUT.
All
subscribers, including you,
have the ability to
unsubscribe or opt-out of the Service at any time as described below:
·
Stop
messages: To stop receiving text messages and calls from any of our customers,
text STOP to the Short Code (if
applicable)or
Long
Code that you wish to cease receiving messages from in the future. In the event
you use the Service with multiple of our customers, we may send you an
automated message to clarify which customer you want to cease receiving
messages from. We may also send a single confirmation message in case of an
accidental
unsubscription
.
·
Start
messages: To restart receiving text messages and calls from any of our
customers, text START to the Short Code (if applicable) or Long Code. In the
event you use the Service with multiple of our customers, we may send an
automated message to clarify which customer you want to restart receiving
messages and calls from.
·
For our
Peer-To-Peer Service, simply text or call the person via their
ten digit
number displayed on your device and request that
you be unsubscribed.
·
Email us
at [email protected] provide us your own phone number and number you received
calls or messages
from, and
tell us that you want to
unsubscribe.
You may also email us at
[email protected] in the event you believe that our customer has added your
information in error or without your permission.
Please note that opt-outs are
tracked separately for each of our customers.
So
unsubscribing from one of our customers would allow you to keep communicating
with a different customer.
SMS/MMS USAGE POLICY.
This
SMS/MMS Usage Policy is designed to prevent fraud and abuse of our
subscriptions by a small number of individuals. SMS/MMS usage is limited and
any subscriber who sends more than ten (10) messages in a row without receiving
a response from our customer may lead to restricted use and possibly
termination of the use of the SMS Platform and/or other Services.
While most of the
Services are not permitted to be resold or used for the benefit of third
parties, the SMS Platform may be used by you, subject to all other terms and
conditions herein, to offer to and for the use of your customers and/or your
customers’ customers / end users, only if and to the extent expressly allowed
by our posted terms (
collectively
,
“end users”).
You may elect to allocate liability between you
and end users in your discretion
provided
that
we are not responsible for any such liability.
You (and not we) are solely responsible for all content and any messages you
send or try to send to, from or between, end users. We shall have no liability
whatsoever to end users. We are not responsible for any disputes between you
and your end users. All disclaimers, warranty limitations, and limitations of
liability, by us herein, or otherwise with respect to us and/or the Services,
are applicable not only to you but also to end users. With respect to use of
the SMS Platform, end users are responsible for and subject to all the same
terms as herein, which must be fully disclosed to them by you. You shall not
state or imply otherwise. You shall be responsible for clearly and
conspicuously notifying and disclosing to your end users (including without
limitation in any posted terms and conditions and polices and in any written
agreements with your end users),
all of
the foregoing
requirements and limitations. You hereby agree to indemnify, defend and hold us
harmless from any for any allegation, loss, liability, claim made against us by
any end users or otherwise arising out of any breach of this paragraph and for any
allegations, claims or disputes by, or between you and, end users
.
You shall comply with all laws, rules and regulations now or hereafter
promulgated by any government authority or agency that are applicable to your
use of the Services, the messages or content you post or send through the
Service, or the transactions contemplated in this Agreement, including without
limitation, t
he
Telephone
Consumer Protection Act of 1991
(“TCPA”
), and all industry
standards, self-regulatory guidelines and best practices, including without
limitation as promulgated by the Cellular Telecommunications Industry
Association (“CTIA”)
. As between
you and us, you are solely responsible for compliance with all such laws with
respect to your use of the Services, and any messages or content you post or
send through the Service.
{/
isSMS
}
Last Updated:
May 1, 2024