BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE; (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR (3) ACCESSING OR USING ANY OF THE SERVICES, YOU AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS, AGREES, AND WARRANTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “CLIENT” AND “YOU” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

Last Updated: June 25, 2022

These Terms of Service are effective immediately for Order Forms effective on or after June 25, 2022. 

If you have existing Order Forms, these Terms of Service will be effective on July 25, 2022 and completely replace any prior version of these Terms of Service. Please be aware that your continued use of our services on or after July 25, 2022 constitutes your acceptance of these Terms of Service. 

1. Definitions.

  • “Affiliate” means any entity that directly or indirectly controls or is controlled by, or is under common control with, a party. For purposes of this definition, “control” means direct or indirect ownership of more than fifty (50%) of the voting interests of the entity. 

  • “Applicable Laws” collectively means all applicable federal, state, and local laws, statutes, governmental rules and regulations of any jurisdiction (“Laws”) and applicable advertising and marketing best practices, guidelines and codes (“Guidelines”). By way of example and without limitation, Applicable Laws may relate to: (i) the sale and distribution of cannabis products, including medical cannabis; (ii) the protection of Personal Data processed as part of a specific Service under this Agreement; or (iii) advertising, marketing, or telemarketing practices. 

  • “Client Data” means Customer details visible in your account that directly identify or reasonably can be used to directly identify your Customers’ offline identity that we make available to you in your account in the Platform, including by way of example names, postal addresses, email addresses, phone numbers, and loyalty numbers. 

  • “Client Property” means Client Confidential Information, Client Data, and Content.

  • “Confidential Information”means any information or material disclosed by a party to the other party, and which is identified, either verbally or in written form, as “confidential” or “proprietary” or which, given the nature of the information or material, should reasonably be understood to be confidential or proprietary, including but not limited to all information (appearing in whatever medium) relating to intellectual property, trade secrets, business plans, sales and marketing methods, customers and customer lists, personal data, designs, financial information, forecasts, inventions, know-how, methods, market analysis, patents, pricing, products, prerelease offerings, procedures, programs, research and development, security policies and processes, source and object code, strategies and other works of authorship of the Disclosing Party. The party disclosing Confidential Information is the “Disclosing Party” and the party receiving Confidential Information is the “Receiving Party.” Confidential Information does not include information that (i) became publicly known through no fault of the Receiving Party, (ii) was properly and lawfully known to the Receiving Party, without restriction, prior to disclosure by the Disclosing Party, (iii) became properly and lawfully available to the Receiving Party through a third party, or (iv) was independently developed by the Receiving Party.

  • “Company Data” means data generated, created, licensed, acquired, or collected by Company or its Affiliates exclusive of the Client Data, including without limitation (i) data products of Company or its Affiliates, (ii) data collected by Company’s Tracking Technologies, (iii) data derived from your use of the Services and from the interaction of your Customers with the Services, or (iv) data derived from the Client Data, including identifiers and data associated with such identifiers.

  • “Company Property” means the Services, Platform, Hardware, Company Data, Tracking Technologies, Company Confidential Information, and all associated technology, software, applications, algorithms, models, data, methodologies, tools, templates, know-how, and formats of Company and its Affiliates, and all documentation, improvements, enhancements, derivatives, or extensions of the foregoing.  

  • “Content” means the content of any advertising messages and any related marketing campaign parameters, tactics or details that your Users make available to the Services on your behalf.   

  • “Customers” means your customers, including visitors to websites, digital properties, applications or other technology that is part of, connected to, or otherwise integrated with the Services.

  • “Hardware” means all equipment placed by us on your premises pursuant to an Order Form, including screens or other devices as applicable.   

  • “Insights” means marketing insights and analytics reports we make available to you in your account in the Platform. 

  • “Intellectual Property Rights” means all patents, copyrights, trademarks, service marks, trade secret, moral rights, and any other legal, proprietary, or intellectual property rights recognized or protectable under Applicable Laws, including any derivative works thereof and associated applications, registrations, or other similar governmental, regulatory, or legal filings.

  • “Order Form” means a written ordering document or online order between you and Company specifying the Services to be provided, including any addenda thereto.

  • “Personal Data” means “personal data”, “personal information”, “personally identifiable information” and any substantially similar term as defined under Applicable Laws.

  • “PHI” means Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). 

  • “Platform” means the software platform and dashboard we make available to you which enables you to login to your account to access and use the Services.  

  • “Schedules” means the Schedules attached to this Agreement which contain supplemental terms and which form an integral part of this Agreement. 

  • “Tracking Technologies” means technology, code, or tools proprietary to Company or its licensors, including without limitation pixels, cookies, SDKs, APIs, and scripts) that we make available to you as part of the Services, including any software integrations with your point-of-sale system.    

  • “Test Offerings” means services or functionality we make available to you free of charge, including without limitation beta, pilot, preview, evaluation or any similar Services.

  • “Services” means retail products and services ordered by you under an Order Form or that Company otherwise makes available to you, including any Test Offerings. 

  • “User” means any individual you authorize to access or use the Services. 

2. Overview

  • These terms and conditions (this “Agreement”) are entered into by and between Dataowl LLC (“we”, “us” or “Company”) and the entity or individual placing an order for or accessing any Services (“you” or “Client”). This Agreement consists of the terms and conditions set forth herein, the Schedules to this Agreement, and any Order Forms that reference this Agreement. 

Schedules: 

  1. Data Processing Addendum

  2. Acceptable Use Policy (Usage Policy) 

  3. Hardware

  4. Messaging Services

  • Use of and access to the Services (including any rebranded or white label version of the Services) are subject to the terms of this Agreement. Client will provide the Content and Client Data consistent with all requirements of this Agreement as well as Company’s Privacy Policy located at: Company Privacy Policy, and Company’s Anti-Spam Policy located at: Anti-Spam Policy.

  • Company reserves the right to change this Agreement in its sole discretion. Any updates to this Agreement will be posted at https://hellofyllo.com/dataowl-terms-of-service/. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes, except that Company will notify you of material updates in writing. By continuing to use the Services after Company posts or notifies you of any changes, you accept this Agreement in accordance with the terms herein. By accessing our Services, you accept this Agreement and certify that you have reviewed this Agreement and are within or have reached the age of majority in your jurisdiction or are age 18 (whichever is greater), and have the authority to agree to this Agreement on behalf of Client.

  • By using the Services, you agree to be bound by this Agreement, including the Binding Arbitration Clause and Class Action Waiver described in Section 20. If you violate the terms of this Agreement, Company reserves the right to deny you access to the Services, together with any and all other legal or equitable remedies.

3. Access to the Services.  

  • Subject to the terms and conditions of this Agreement, Company hereby grants Client the right, during the Term of this Agreement to access and use the Services set forth in an applicable Order Form signed by the parties (or Test Offerings we otherwise make available to you).  We will provide the Services in conformity with applicable Company documentation. The Services may be modified only upon mutual agreement of the parties in a writing signed by the authorized representatives of each party.  


  • As part of the registration process, we will provide you with a reasonable number of logins and passwords for your Users to access the Services.  Client will provide Company with accurate, complete, and regularly updated account information.  Client and its Users will not share logins or passwords with or otherwise allow access to the Services by any individuals other than authorized Users. Client is responsible for maintaining the confidentiality of its User logins and passwords and Client is fully responsible for all activities that occur under its account. You agree to immediately notify us in writing of any known or suspected unauthorized use(s) of Client’s account, including any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your usernames or passwords.  

  • We will use commercially reasonable efforts to provide you with technical and operational support as reasonably necessary for you to use the Services. 

4. Client Obligations.

  • Exclusive of Company Property, including any technology comprising part of the Services, Client is solely responsible, at its sole cost and expense, for (i) providing and maintaining all hardware, software, electrical and other physical requirements necessary for its use of the Services, including, without limitation, telecommunications and Internet access connections and links, web browsers, bandwidth, or other equipment, software and services required to access and use the Services, (ii) ensuring that all of the foregoing are compatible with the Services, and (iii) complying with all system requirements provided by Company, including without limitation any recommended configuration procedures or other documentation.  Client acknowledges that if it does not follow the procedures set forth in this Section it may experience service interruption or unforeseen service issues and Company will not be liable for Client’s failure to comply with this Section. 


  • Client acknowledges that in connection with its use of the Services, Client is obligated to use Tracking Technologies, including HTML, JavaScript or other code provided by Company, without any modifications thereto, including any integrations with Client’s point-of-sale system.  In furtherance and not limitation of the foregoing, Client agrees Company has the right to register and/or host URLs on behalf of Client, under Client’s business name, as part of the Services. Client acknowledges and agrees that it is the sole owner of such URLs and/or landing pages and that Client is responsible for the Content and will obtain all necessary Customer consents or permissions as required for tracking of activity on such URLs and/or landing pages, including without limitation the measurement of click-through rates, conversions, and Client’s return on investment.  

  • Client shall not circumvent or remove any security measures installed by Company with respect to the Services, including without limitation, any security codes or firewalls.  Client shall maintain appropriate technical and organizational security measure to protect its account.

  • As further described in the Schedules to this Agreement, including but not limited to the Data Processing Addendum and any Service-specific Schedules, to the extent you share, transfer, or otherwise disclose Personal Data to Company through your use of the Services, directly or indirectly, including via the use of Tracking Technologies or otherwise, you agree you will (i) collect and share all Personal Data fairly and lawfully in compliance with Applicable Laws and this Agreement; (ii) provide prominent notice to Customers that satisfies all requirements of Applicable Laws, including that their Personal Data will be processed by Company for the purposes identified to you by us in writing, including without limitation in the Data Processing Addendum; (iii) obtain all legally required consents and permissions, including offering Customers the ability to opt-out of such processing as required by Applicable Laws and this Agreement, and (iv) not disclose or make available to Company any Personal Data relating to Customers that does not comply with Applicable Laws. 

  • You are solely responsible for your compliance with this Agreement and Applicable Laws. You agree you have reviewed all terms of this Agreement, including as set forth in the Schedules and any Service-specific terms, and will comply with them. You agree to maintain records (including without limitation privacy and security policies, technical logs, screenshots, and copies of Customer consents) to demonstrate your compliance and will promptly provide such records to Company upon request. You agree we may audit your compliance with Applicable Laws or the terms of this Agreement following ten (10) days written notice. We reserve the right at any time, in our sole discretion, to suspend or terminate the Services in the event of your non-compliance. 

5. Fees; Payment

  • Your use of the Services is contingent on you paying all applicable fees, taxes, and other charges for such use in the amounts and using the methods indicated on the Order Form. Unless otherwise specified in the Order Form, all invoices shall be due and payable within ten (10) days of receipt.

 

  • Amounts to be charged may include sales and other taxes where applicable and any other amounts indicated on the Order Form. Payment obligations are non-cancellable and fees paid are non-refundable. You are responsible for all taxes other than taxes based on Company’s net income, property, or employees. 


  • Company cannot readily or accurately ascertain your location when you request to use the Services. You therefore agree that your use of the Services occurs in Illinois and is subject to any applicable Illinois taxes. To the extent that you are responsible for any additional taxes or fees beyond those collected by Company, you agree that you will pay them when due to any applicable taxing authority, including any interest or penalties assessed.


  • Company shall not be responsible for any errors or transmission failures with regard to the charging and collection of funds from your indicated payment method, nor for any actions taken by your payment provider (which could include refusal to authorize the charge). In addition to this Agreement, any payments made by you may be subject to the agreement between you and your payment provider. In the event your credit card declines a charge or your payment is overdue, we may suspend your account following our notice to you (email being sufficient) until you have paid all amounts owing in full. 


  • In the event of late or non-payment under this Agreement, Company reserves the right to charge a late fee of 1.5% of the invoice’s value per month, or the highest rate allowed by Laws. If Client fails to timely pay an invoice, Company may terminate or suspend the Services upon ten (10) days prior written notice to Client and will be entitled to immediately proceed with collection remedies.  Client will be liable for all costs, fees, and expenses of such collection efforts, including but not limited to: collection agencies, court costs, filing and service of process fees, attorneys’ fees incurred from counsel of Company’s choosing, or any other costs, fees, and expenses incurred in the pursuit of collection on all Client accounts and receivables due and payable under this Agreement. 


  • Client will be solely responsible for and will indemnify Company for all fines, fees, charges, or other amounts imposed on Company by an underlying carrier or other provider due to Client’s use of the Services.


6. Proprietary Rights and Licenses


  • Client Property. As between Company and Client, Client owns all right, title and interest, including without limitation all Intellectual Property Rights, in and to the Client Property including the Content, Client Data and Client Confidential Information. By providing or making available Content and Client Data to the Company, Client grants to the Company a non-exclusive, worldwide, royalty-free, fully-paid, assignable, transferable, sublicensable, perpetual license to use, host, copy, distribute, transmit, and display Content and Client Data in accordance with this Agreement and as required in order to provide the Services as contemplated herein. 


  • Company Property. As between Company and Client, Company owns all right, title and interest, including all Intellectual Property Rights, in and to the Company Property, including the Company Data and Company Confidential Information. In furtherance and not limitation of the foregoing, Client acknowledges that Company is the sole and exclusive owner of all Company Data whether or not such Company Data incorporates, modifies, uses or is otherwise derived from the Client Data or from Client’s use of the Services or collected via Tracking Technologies. Client acknowledges such ownership, including without limitation all derivatives of the Client Data, and will not take any action to jeopardize, limit or interfere in any manner with Company’s rights with respect to the Company Property, including the Company Data.  In addition, Company solely owns all right, title, and interest in and to any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Client to Company relating to the Services (“Feedback”) and Company may use such Feedback for any purpose in its sole discretion without attribution to Client. 


  • License to Use the Services. Subject to Client’s compliance with this Agreement, Company grants to Client a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Services during the Term (defined below) solely for the purpose of using the Services in accordance with this Agreement. Client acknowledges and agrees that Client may not copy, reproduce, retransmit, modify, alter, create any derivative works, reverse engineer, decompile, or disassemble any portion of the Services or the Company Property, including any proprietary communications protocol used by the Services.    


  • License to Use the Insights. Subject to Client’s compliance with this Agreement, Client may use the Insights during the Term solely for its internal business purposes and agrees to not disclose or otherwise provide the Insights to any third party. 


  • Data Use.  Client understands and agrees that Company may collect data and information (including but not limited to data collected by Tracking Technologies) and use such data for any lawful business purpose, including without limitation to enhance and improve its products and services or share or disclose such data to third parties, including its Affiliates, in connection with the operation of Company’s business. Any such data collected by Company is Company Data and Company has an unlimited right to use and exploit such data in perpetuity. 


  • Reservation of Rights. All rights not expressly granted to Client are reserved to Company.


7. Publicity

  • All trademarks or trade names are the property of their respective owners, and such material may not be copied, downloaded, redistributed, modified or otherwise exploited, in whole or in part, without the permission of the owner. Notwithstanding the foregoing, Company may identify Client as a customer in press releases or publicity in any form, and may use Client’s name and logo in brochures, advertisements, websites, or other marketing materials for the purpose of marketing services of Company or its Affiliates. 


8. Confidentiality.


  • The Receiving Party agrees to hold in confidence and not use, disclose, publish, release, transfer or otherwise make available to anyone Confidential Information of the Disclosing Party, except as necessary to carry out the terms of this Agreement, or as expressly authorized by the Disclosing Party in writing, and agrees to limit access to Confidential Information of the Disclosing Party to employees, contractors, and other authorized representatives of the Receiving Party who have: (i) a need to know the Confidential Information in order to carry out the terms of this Agreement and (ii) signed agreements containing confidentiality and data security protections no less stringent than those herein.


  • If the Receiving Party is compelled by Laws to disclose Confidential Information of the Disclosing Party, the Receiving Party agrees, to the extent allowed by applicable Laws, to give the Disclosing Party immediate notice of the compelled disclosure. The Receiving Party further agrees to give reasonable assistance to the Disclosing Party, to the extent legally permitted, and at the Disclosing Party’s expense, in any contest by the Disclosing Party to the compelled disclosure.


9. Representations and Warranties. Client represents and warrants:


  • Client has all necessary rights, power, and authority to agree to this Agreement and perform Client’s obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place Company in breach of any other contract or obligation.


  • Client is duly licensed and approved by all relevant governmental authorities, including as applicable to engage in the commercial cannabis activities in which it participates (e.g. storing, growing, harvesting, trimming, manufacturing, distributing, warehousing, delivering, retail sales, etc.), and that it will continue to properly maintain such licenses while it is using the Services. Client will provide proof of such licensure and approval upon request by Company. Client will inform Company within 48 hours of any demand, claim, or other action taken or threatened against Client, its employees, officers, advisors, or affiliates which could jeopardize any of Client’s or its affiliate’s cannabis licenses or other licenses necessary to compliantly conduct its business.


  • Client will comply with all Applicable Laws and this Agreement including without limitation all Schedules attached hereto when (i) accessing, acquiring, disclosing, modifying, or otherwise processing any Personal Data; and (ii) using or accessing Company’s Services. 


  • Client has all rights, title and interests necessary to provide the Client Data and Content for the purposes contemplated under this Agreement, and Client warrants that its provision of Client Property to Company shall not infringe any third party’s proprietary or personal rights, including but not limited to any trademark, copyright, patent, trade secret, or data privacy rights. 


10. Insurance

  • Client is insured, by a reputable insurance company holding an A- rating or better, for at least $1,000,000 in commercial general liability and $5,000,000 in professional liability (including errors and omissions) per claim and aggregate covering losses and liabilities from any act, errors, omissions, negligence, breach of duty and/or misrepresentations related to this Agreement, with an umbrella of at least $5,000,000, and Company will provide certification of such insurance upon request. Such policies of insurance shall be issued as primary policies, shall cover you and your premises and us as additional insureds (and our Hardware as applicable) and not contributing with or in excess of coverage that may otherwise exist or subject to subrogation. 


11. Term

  • The term of your use of the Services shall be for the time period specified in the Order Form (the “Initial Term”) and shall automatically renew for successive twelve (12) month periods (“Renewal Terms”) (collectively, the “Term”).  Notwithstanding the foregoing, your obligations under this Agreement will remain in effect for as long as you are using the Services. 


12. Termination


  • By the Client. Client may terminate or cancel its use of the Services by notifying Company in writing at least thirty (30) days prior to the end of the then-current Term. Client understands and agrees that cancellation or termination pursuant to this Section shall not relieve Client of its obligation to pay all applicable fees and costs for the remainder of the current Term. Client shall cease all use of the Services upon the expiration, termination, or cancellation of this Agreement. 


  • Termination or Suspension by the Company.  Company may terminate or cancel its provision of the Services by notifying Client in writing at least thirty (30) days prior to the end of the then-current Term. If at any time Client breaches this Agreement as determined by Company in its sole discretion, the Company may suspend or terminate Client’s use of the Services and/or recover any Losses from Client arising from the event(s) giving rise to the suspension.  Client’s obligation to pay all amounts accrued and owed by Client shall continue even after any suspension or termination.  Client shall cease all use of the Services upon the expiration, termination, or cancellation of this Agreement. 


  • Effect of Termination. Following the written request of Client made within thirty (30) days after the effective date of termination or expiration of this Agreement, Company will make Client Data available to Client in accordance with Company’s standard procedures. After such thirty (30) day period, Company will have no obligation to maintain the Client Data and may delete or destroy all copies of the Client Data in its possession or control unless legally prohibited. 


  • Suspension of Services. Notwithstanding anything herein, the Company reserves the right to modify, suspend, or discontinue the offering of any of the Services at any time for any reason without prior notice. 


  • Survival. All terms of this Agreement which, by their nature, are intended to survive termination of this Agreement will survive termination, including, but not limited to, all payment obligations, use restrictions, compliance with this Agreement, confidentiality obligations, ownership terms, Client warranties, data terms, disclaimers, indemnification obligations, exclusions and limitations of liability, effect of termination, dispute terms, and general terms.


13. Disclaimer.  

  • THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION, WARRANTIES, OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OR CONDITION OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, NON-INFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.  COMPANY DOES NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR COMPATIBLE WITH YOUR DEVICES OR THAT RESULTS OBTAINED FROM YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS.  YOU AGREE THAT FROM TIME TO TIME COMPANY MAY REMOVE THE SERVICES FOR INDEFINITE PERIODS OF TIME OR CANCEL THEM AT ANY TIME WITHOUT NOTICE TO YOU.  TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY EXCLUDES ALL REPRESENTATIONS AND WARRANTIES RELATING TO THE SERVICES, INCLUDING AS  MAY BE PROVIDED BY ITS AFFILIATES OR ANY OTHER THIRD PARTY, INCLUDING WITHOUT LIMITATION TELECOMMUNICATIONS PROVIDERS OR ISPs AND COMPANY WILL HAVE NO LIABILITY FOR ANY CHANGES TO, INTERCEPTION OF, OR LOSS OF CLIENT PROPERTY WHILE IN TRANSIT.  NOTHING HEREIN AND NO COMPANY DOCUMENTATION OR COMMUNICATIONS FROM COMPANY TO CLIENT REGARDING CLIENT’S COMPLIANCE WITH APPLICABLE LAWS CONSTITUTES LEGAL ADVICE. CLIENT IS SOLELY RESPONSIBLE FOR ITS LEGAL COMPLIANCE. 

14. Limitation of Liability.

  • IN NO CASE SHALL COMPANY, ITS EMPLOYEES, OFFICERS, DIRECTORS, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUE, LOST SAVINGS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, DAMAGE CAUSED TO YOUR COMPUTER, COMPUTER SOFTWARE, SYSTEMS OR PROGRAMS OR THE DATA THEREON, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE ARISING FROM YOUR USE OF THE SERVICES OR IN ANY WAY RELATED TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY ERRORS OR OMISSIONS IN ANY USE OF THE SERVICES, EVEN IF A PARTY HAS BEEN ADVISED OF, HAD REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IF YOUR USE OF THE SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE, OR DATA COMPANY IS NOT RESPONSIBLE FOR THOSE COSTS. IN ANY EVENT, THE AGGREGATE LIABILITY OF COMPANY AND ITS AFFILIATES AND SERVICE PROVIDERS UNDER THIS AGREEMENT SHALL NOT EXCEED FIVE HUNDRED DOLLARS ($500.00). THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. 


15. Indemnification

  • To the fullest extent permitted by Laws, and except to the extent arising from Company’s gross negligence or intentional misconduct, Client agrees to indemnify and hold harmless Company and its Affiliates and each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, 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) arising from or relating to any actual or threatened claim, suit, action, proceeding, governmental investigation or enforcement action (collectively “Losses”) based upon, related to or arising out of: (i) Client’s breach of this Agreement, including without limitation any Schedule or Order Form, (ii) Client’s violation of Applicable Laws or rights of a third party, including without limitation data privacy rights, (iii) any PHI shared with Company or a third party via the Services due to Client’s acts or omissions, (iv) any use of Client’s account or the Services, including unauthorized use due to Client’s acts or omissions, or (v) death or personal injury, including but not limited to any accidents or other torts arising from the installation, presence, or removal of our Hardware, such as trips, falls, or equipment collapses. Client agrees to fully cooperate in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, but Company reserves the right, at Client’s expense, to assume the exclusive defense and control of any matter in which Client is a named party and that is otherwise subject to indemnification by Client, in which case you shall cooperate with Company in asserting any available defenses. Client shall not settle any actions or claims on Company’s behalf without Company’s prior written consent. Client acknowledges and agrees to be held liable for any and all Losses caused to Company by Client, its affiliates, representatives, or agents as a result of a violation of Applicable Laws or breach of this Agreement, including but not limited to those Losses that may arise from your intentional or unintentional harm or unauthorized use of the Services, or damages or destruction to any Hardware.  

16. Links to Other Websites

  • The Services may contain links to third party websites. These links are provided solely as a convenience to you and not as an endorsement by Company of the content, legality, or functionality of such third-party websites. Company is not responsible for third-party websites and does not make any representations regarding your use of such third-party websites. If you decide to access linked third-party websites, you do so at your own risk. 

17. Miscellaneous.

(a) Assignment.   Client may not assign, subcontract, delegate, transfer, or sublet any portion of this Agreement, including in whole or in party any right or obligation hereunder, without the prior written approval of Company, which approval shall not be unreasonably withheld. Company may assign this Agreement or delegate any obligations without the consent of Client to (i) a parent, subsidiary or other Affiliate; (ii) an acquirer of assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Client that results or would result in a direct competitor of Company directly or indirectly owning or controlling fifty percent (50%) or more of the Client shall entitle Company to terminate this Agreement for cause immediately. Company may subcontract any portion(s) of the Services to third parties, including its Affiliates in its sole discretion. 

(b) Entire Agreement.  This Agreement, together with any applicable Order Forms, constitutes the entire agreement between the parties and supersedes all previous and contemporaneous negotiations, discussions, and agreements, whether written or oral, between them as to its subject matter.  No modification of the terms of this Agreement shall be effective unless made in writing signed by both parties.  In the event of any conflict or inconsistency among the parts of this Agreement, the order of precedence is: (1) the applicable Order Form(s), (2) the Data Processing Addendum, (3) for a specific Service, the terms in any Service-specific Schedule, (4) the terms of this Agreement, and (4) the Acceptable Use Policy and any other policies of Company or its Affiliates incorporated by reference herein. Any terms or conditions in any Client purchase order, online terms, or other documentation are void and not part of this Agreement.

(c) Severability.  In case any one or more of the provisions in this Agreement should be invalid, illegal, or unenforceable in any respect, such provision shall be deemed modified to the extent necessary to permit its enforcement under Laws, and the validity, legality, or enforceability of the remaining provisions hereof shall not be affected nor impaired and shall remain in full force and effect.  

(d) Waiver.  No waiver of any provision of this Agreement shall be effective unless made in writing and signed by the waiving party. The failure of either party to insist upon strict performance of any term of this Agreement shall not prevent any subsequent enforcement of such term or be deemed a waiver of any of its rights hereunder. The waiver by any party of any breach of this Agreement shall not operate as or be construed to be a waiver of any other breach of such provision or of any breach of any other provision of this Agreement.

(e) Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule.

(f) Attorney’s Fees.  In the event of a non-payment by Client under this Agreement, the Company shall be entitled to immediately proceed with collection remedies (including immediate repossession of any Hardware as applicable) and shall be entitled to recover any and all costs, fees, and expenses of such collection efforts, including but not limited to: collection agencies, court costs, filing and service of process fees, attorneys’ fees, and any other costs, fees, and expenses incurred in the pursuit of collection.  In any action or proceeding to enforce rights under this Agreement, Company will be entitled to recover costs and attorneys’ fees if it substantially prevails.

(g) Force Majeure.  The Company shall not be liable for any failure or delay in performing its obligations hereunder, which such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications or Internet facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of the Company.  In addition, the Company shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material necessary for the performance of the Services.

(h) Headings.  The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.

(i) Notices.  All notices, requests, demands, claims, and other communications will be in writing and will be deemed duly given if sent by personal delivery, e-mail, registered or certified mail, or overnight delivery service to a party at its last known address. Notices to Company shall be sent: (i) by personal delivery, by registered or certified mail, or by overnight delivery, to Dataowl LLC c/o Fyllo, 433 W Van Buren St., Suite 200, Chicago, IL 60607, Attn: Senior Vice President – Operations; and (ii) by e-mail to retailsolutions@hellofyllo.com with a copy to legal@hellofyllo.com.

(j) Remedies.  Company’s sole obligation and Client’s exclusive remedy for any claim of defective Services is to correct, re-perform, or re-deliver, as applicable, the defective Services in question without charge or, at Company’s sole option, to refund the price paid by Client solely for such defective Services. Client must provide written notice to Company within forty-eight (48) hours of any such defective Services in sufficient detail with any necessary backup information or documents.  

(k) Relationship of the Parties.  The relationship between the Company and Client is that of independent contractors, and each party’s employees shall be at all times under its direction and control.  Each party shall be solely responsible for payment of its employees and any and all applicable taxes and insurance.  The parties have no authority, express or implied, to act on behalf of each other except as may be expressly provided in this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement. 

(l) Affiliates. Your Affiliates may use the Services under and in accordance with the terms of this Agreement. You represent and warrant that you have sufficient rights and the authority to make this Agreement binding upon each of your Affiliates and you will be jointly and severally liable for the acts and omissions of such Affiliate. Company’s Affiliates may provide the Services, or a portion thereof, to you or your Affiliates, as applicable. Notwithstanding anything to the contrary in this Agreement, Company’s Affiliate may directly bill you or your Affiliates, as applicable, for the Services.

(m) No Third Party Beneficiaries.  There are no third-party beneficiaries to this Agreement and nothing in this Agreement, express or implied, is intended to confer on any person other than the parties bound hereunder (and their respective successors, heirs and permitted assigns), any rights, remedies, obligations or liabilities granted under this Agreement.

18. ARBITRATION CLAUSE AND CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS. 

(a) Arbitration Notice. You and Company agree that if there is any dispute or claim arising from or related to this Agreement it will be resolved by confidential binding arbitration in Chicago, Illinois, rather than in court, after first giving Notice of the Dispute (“Notice”) to the other party and the opportunity to discuss resolution within thirty (30) days of such Notice.  Notices to Company shall be sent: (i) by personal delivery, by registered or certified mail, or by overnight delivery, to Dataowl LLC c/o Fyllo, 433 W Van Buren St., Suite 200, Chicago, IL 60607, Attn: Senior Vice President – Operations; and (ii) by e-mail to retailsolutions@hellofyllo.com with a copy to legal@hellofyllo.com.  This Notice must include a description of the nature and basis of the claims the party is asserting, and the relief sought. 

If you and Company are unable to resolve the claims described in the Notice within thirty (30) days after the Notice is sent, you or the Company may initiate arbitration proceedings.  There is no judge or jury in arbitration, and court review of an arbitration award is limited.  However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the provisions of this Agreement as a court would.  YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT.

The Federal Arbitration Act and federal arbitration law apply and the American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes.  Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. 

The arbitration shall be held in the State of Illinois in the city of Chicago or at another mutually agreed location.  If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Company subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant.  Attendance at an in-person hearing may be made by telephone by you and Company, unless the arbitrator requires otherwise.  

The arbitrator will decide the substance of all claims in accordance with the laws of the State of Illinois, including recognized principles of equity, and will honor all claims of privilege recognized by applicable law.  The arbitrator’s award shall be confidential, final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  

Notwithstanding any provision in this Agreement to the contrary, you and Company agree that if Company makes any change to this Section (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a proceeding against Company prior to the effective date of the change.  

CLASS ACTION WAIVER:  YOU AND THE COMPANY AGREE THAT DISPUTES BETWEEN YOU AND COMPANY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.  If for any reason a claim proceeds in court rather than in arbitration, Company and Client each waive any right to a jury trial.  Company and Client also both agree that you or Company may bring suit in court to enjoin infringement or other misuse of intellectual property rights. 

(b) Claims and Disputes Must be Filed Within One Year. To the extent permitted by law, and without limiting the effect of any disclaimer contained herein, any cause of action or claim you may have with respect to your use of the Services, including, without limitation, any website or mobile application or other Services-related product, service, or other content must be commenced within one (1) year after the claim or cause of action arises.  This section applies to you and your heirs, successors and assigns. 

20. How To Contact Us. If you have any questions about this Agreement, please send an email to legal@hellofyllo.com.  

The previous version of the terms of service can be found at: https://hellofyllo.com/dataowl-terms-of-service-may-2022

Schedule A

Data Processing Addendum (“DPA”)

United States

Unless otherwise defined in this DPA, all capitalized terms shall have the meanings ascribed to them in the Agreement. In the event of a conflict between this DPA and the other provisions of the Agreement, the provisions of this DPA will control. This DPA is part of the Agreement and any breach of this DPA will be deemed a material breach of the Agreement. The parties acknowledge that data protection requirements differ depending on jurisdiction and this Schedule does not indicate that a party is subject to Applicable Laws where all terms set forth in this DPA apply. The parties agree as follows:

Definitions

  • “Applicable Data Protection Law” means all Applicable Laws (as defined in the Agreement) in the Permitted Territories as applicable to Personal Data Processed by a party in connection with the Agreement, including without limitation the California Consumer Privacy Act of 2018 as amended from time to time.

  • “Client Data” means Client Data (as defined in the Agreement) consisting of Personal Data that Client makes available or provides to Company under the Agreement.  

  • “Company Data” means Company Data (as defined in the Agreement) consisting of Personal Data collected by Company or disclosed or otherwise made available by Client to Company under the Agreement, including via placement of Tracking Technologies. 

  • “Controller” (including a “Business” or other analogous variations) has the meaning set forth in Applicable Data Protection Law, generally meaning a party that, alone or jointly with others, determines the purposes and means of the processing of Personal Data. 

  • “Data Subject” (including a “Consumer” or other analogous variations) has the meaning set forth in Applicable Data Protection Law, generally meaning an identified or identifiable nature person, including your Customers as defined in the Agreement.

  • “Permitted Territories” means the United States of America. 

  • “Personal Data” and “PHI” have the meanings set forth in the Agreement.

  • “Processor” (including a “Service Provider” or other analogous variations)

  • “Processing” has the meaning set forth in Applicable Data Protection Law, generally meaning any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, record, organization, structuring, storage, adaption or alteration, retrieval, consultation, use, disclosure by transmission, dissemination, or otherwise making available, alignment or combination, restriction, erasure, or destruction.

  • “Purposes” means the purposes of Processing of Company Data as described in the Agreement, in any supplemental documentation provided by Company to Client, or as described in Company’s privacy policy.

  • “Sale” or “Share” has the meaning set forth in Applicable Data Protection Law.

  • “Services” has the meaning set forth in the Agreement. 

  • “Tracking Technologies” has the meaning set forth in the Agreement. 

General

  • Client agrees to maintain conspicuous publicly-facing privacy notices that satisfy all requirements of Applicable Data Protection Law, including disclosing the means by which a Data Subject can provide consent, opt-out, or contact Client in order to exercise their data privacy rights under Applicable Data Protection Law.  Such Client privacy notices will describe the collection, use, and sharing of Personal Data under the Agreement, including all legally required notices about the use of Tracking Technologies and the Purposes. 

  • Client acknowledges that in certain circumstances Applicable Laws may require Client to obtain specific, informed, and unambiguous consent from Data Subjects (“Express Consents”) for the Processing of Personal Data. Client represents, warrants and covenants that it has all necessary legal rights and consents, including Express Consents where legally required, to disclose and share Personal Data with Company in compliance with this Agreement and all Applicable Laws. Client will, where required by Applicable Laws, implement a mechanism to obtain consent or facilitate opt-outs from Data Subjects on its digital properties.

  • Client represents and warrants that it will not disclose or make available to Company (i) any PHI, (ii) any Personal Data originating from or protected by Laws in a jurisdiction other than the Permitted Territories, or (iii) any Personal Data relating to an individual under 18 years old. 

  • Disputes, including any liabilities or Losses, will be determined in accordance with the Agreement except to the extent otherwise required by Applicable Data Protection Law. 

  • Upon written request, Client will provide Company with information as Company may reasonably request so Company can review Client’s compliance with Applicable Laws. To the extent any deficiencies are identified and without limiting Company’s remedies under the Agreement, Client agrees to promptly correct any non-compliance.  

Client Data

For purposes of the Services, Client is the Controller of Client Data and Company is the Processor of Client Data. Company will Process Client Data in accordance with Client’s written instructions, which will comply with Applicable Laws. The parties agree this Agreement (including any Order Forms) sets out Client’s full instructions to Company regarding the Processing of Client Data. Company will not Sell or Share, retain, use, disclose or otherwise Process Client Data except as necessary to perform the Services or for business purposes permitted by Laws. Company certifies that it understands the restrictions in this Section and will comply with them.  

Company Data

  • Client acknowledges Company Data may be collected by Company or Client may disclose or otherwise make available such data to Company under the Agreement, including via placement of Tracking Technologies, and such data is not Client Data. In connection with Client’s sharing of such data with Company, each party acts as separate and independent Controller as defined under Applicable Data Protection Law and not as a Processor to the other party. 

  • Client represents and warrants that it has obtained all consents and permissions to enable Company to Process the Company Data for the Purposes, including Express Consents where legally required. To the extent Company provides Client with relevant information regarding the Purposes of Processing of the Company Data, Client agrees to fully cooperate with Company and include appropriate disclosures regarding such Purposes in its privacy notices.  Client’s privacy notices will link to Company’s privacy policy at https://hellofyllo.com/dataowl-privacy-policy/

  • Client acknowledges its sharing of Personal Data with Company under this Section constitutes a “Sale” or “Share” of Personal Data as those terms are defined in Applicable Data Protection Law and Client is responsible for providing notice and choice to Data Subjects regarding such sharing in accordance with Applicable Data Protection Law and this Agreement.

Schedule B

Acceptable Use Policy (“Usage Policy”)

This Usage Policy applies to your use of all Services offered by Company. This is not an exhaustive list. Additional restrictions may apply, including as set forth in the Messaging Services Schedule.

Compliance with Applicable Laws.

You agree to familiarize yourself with and abide by all Applicable Laws and are solely responsible for your Users’ activities in your account, including without limitation the content of the messages that you create and initiate through the Services.

You are solely responsible for obtaining any rights or licenses to any content, intellectual property or data you supply or transmit through the Services, including without limitation sound files, pictures or videos, for inclusion in any outbound messages.

Prohibited Activities.

  • Sending unsolicited marketing messages (i.e. spam);

  • Using any equipment or software that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, in conjunction with your use of the Services;

  • Using any equipment or software that has the capacity to initiate messages without human intervention, in conjunction with your use of the Services;

  • Sending any calls to life-line services, such as hospitals, fire, police, 911 or utility- related telephone numbers;

  • Sending unsolicited e-mail, including promotions and/or advertising of products or services

  • Using strings of numbers as it is unlawful to engage two or more lines of a multi-line business;

  • Harvesting, or otherwise collecting information about others, without their consent;

  • Misleading others as to the identity of the sender of your messages, by creating a false identity, impersonating the identity of someone/something else or by providing contact details that do not belong to you;

  • Transmitting, associating or publishing any unlawful, racist, discriminatory, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;

  • Transmitting any content or material that does not comply with the CTIA’s Principles and Best Practices, including without limitation those related to SHAFT (sex, hate, alcohol, firearms, and tobacco) content.

  • Violating any applicable laws or regulations, including without limitation, laws regarding the transmission of technical data or software exported from the United States or other country;

  • Transmitting any material that may infringe upon the intellectual property rights of third parties including without limitation trademarks, copyrights or other rights of publicity;

  • Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or other harmful/deleterious programs;

  • Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks;

  • Transmitting any material that contains protected health information as that term is defined by the Health Insurance Portability and Accountability Act of 1996 (“PHI”);

  • Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means;

  • Interfering with another’s use and enjoyment of the Services; or

  • Engaging in any other activity that could subject Company to criminal liability or civil penalty/judgment. 

Age and Geographic Gating.

You must ensure that you do not collect Personal Data from or send marketing messages to any individual who is younger than the legal age of consent to purchase cannabis products based on where the individual is located. You also must ensure that your Content complies with all Applicable Laws of the jurisdiction in which the message recipient is located.

Security Rules.  

Client shall not violate or attempt to violate the security of the Services and shall not use the Services to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for Client or logging into a server or account which Client is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorization; (c) attempting to interfere with service to any user of the Services, host or network, including, without limitation, via means of submitting a virus, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing”; (d) sending unsolicited e-mail or messages, including promotions and/or advertising of products or services; or (e) forging any packet header or any part of the header information in any e-mail, instant message, text message or newsgroup posting.  Violations of system or network security may result in civil or criminal liability. Company may investigate violations of this Agreement, and may involve and cooperate with law enforcement authorities in prosecuting users of the Services who are involved in such violations.

DMCA Policy. 

The Company respects the intellectual property rights of others and expects its Clients to do the same. This DMCA Policy applies to all Content you supply to the Services. 

In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found at http://www.copyright.gov/legislation/dmca.pdf, Client will maintain a notice and takedown process to respond expeditiously to claims of copyright infringement committed using the Services. 

Your publicly-facing DMCA notice to Customers must include all elements required under Section 512 of Title 17 of the U.S. Code, a summary of which may be found at: https://www.copyright.gov/512/

We reserve the right to remove Content that violates the Agreement, including resulting from allegations of copyright infringement. In the event we receive notice alleging your Content infringes another party’s intellectual property, we may take whatever action we deem appropriate, in our sole discretion, including removal of the Content at issue from the Services. It is Company’s policy, in appropriate circumstances, to terminate the accounts of Clients who are repeat infringers or are repeatedly charged with infringement.

Schedule C

Hardware

  1. Lease of Hardware.  Subject to your payment of fees, we grant to you for the duration of the Term the right to use the Hardware in accordance with the Agreement. All Hardware expenses must be paid in full prior to delivery. 

  2. Title.  Legal title in the Hardware is, and shall continue to be, held by us, and nothing in this Agreement shall convey any legal title to real or personal property, nor shall it create any security interest for Client or any other person’s benefit. You agree that we may access any Hardware at any time, for any reason, including but not limited to maintenance or testing.

  3. Use of Hardware: Risk of loss to the Hardware will pass to you upon delivery. You shall only use the Hardware in a careful and proper manner and will comply with all Applicable Laws regarding the use, maintenance of storage of the Hardware.  You will keep the Hardware in good, working condition.  In the event the Hardware is lost or damaged after delivery, you shall pay to us the replacement or repair cost of the Hardware. 

  4. Functionality. We agree to make commercially reasonable efforts to maintain the function of the Hardware but do not guarantee performance, availability, or uptime. 

Schedule D

Messaging Services

These terms apply to your use of any messaging Services.  Company provides a web-based interface as part of the Services that enables Clients to send SMS, MMS and email messages to recipients designated by Client, which includes, but is not limited to, access to incoming telephone number or keywords, Direct Inward Dialing Numbers (DIDs), and related messaging applications.    

You are solely responsible for obtaining all consents and honoring all opt-outs as legally required for you to send email and text messages to your Customers via the Services. 

Consents.

You represent and warrant that the owners of the phone numbers you initiate messages to through the Services have expressly consented, or otherwise expressly opted-in, in writing to the receipt of such messages and broadcasts as required by Applicable Laws and this Agreement (including Company’s Anti-Spam Policy and Privacy Policy). 

Each opt-in confirmation, opt-out confirmation, and “HELP” message response automatically sent to Customers will count as an SMS and be charged to your account. 

Revocation of Consents.

You agree to maintain a list of Customers that opt out of future messages (the “Account Opt Out List”) and it is your sole responsibility to ensure that messages you initiate through the Services are not sent to Customers who appear on the Account Opt Out List. Company is not responsible for any messages incorrectly sent to a Customer on the Account Opt Out List.

You are the Sender.

You agree that you are the “sender” or “maker” of all messages transmitted and/or initiated under your account, that you solely make the decision to send all messages hereunder (including without limitation any messages sent using automated and/or “intelligent” features provided by Company), and that you solely determine the content of such messages (including without limitation the use of any messaging templates). Where required by Applicable Laws, every message you send must clearly identify you as the sender. You shall schedule your messages responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. 

You agree to provide legally required contact information in any outbound message when and where required by Applicable Laws. You further agree that Company is, under no circumstances, responsible for the contents and/or accuracy of your messages and Company will only transmit them on a basis of good faith that you use the Services in accordance with this Agreement. You are solely responsible for providing the content of all messages initiated by you through the Services. Company will not be liable for any misuse of the Services by you. Company is not responsible for the views and opinions contained in any of your messages or broadcasts. 

Limitations Imposed by Telecommunications and Network Providers.

The Services transmit messages initiated by Client or sent to Client by others through different routes, and the level of reliability and support for special features varies according to the carrier and route.  The Services transmit SMS and MMS messages via major telecommunications companies and mobile network operators, and thus the Company’s influence over the timing of the transmission of Client’s messages is within the technical constraints imposed by those providers.  Transmission is wholly dependent on the carrier, and Company cannot commit to, and does not guarantee, a specific maximum delivery time with respect to any messages or other aspects of the Services.  Such times depend on various network and system-related factors among the various entities involved in the transmission of messages across the public switched telephone network and/or Internet.  Communications carriers assign messages with a default lifetime and any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice.  Company is not liable for any loss incurred by the failure of a message or other Service offering to be delivered, and Client acknowledges that damages for financial or other loss resulting from delivery failure cannot be claimed from the Company for any such non-deliveries.

Furthermore, Client agrees that message Content is deemed to have zero value. Client understands and agrees that the Services are only a conduit for the transmission of Client’s Content, and that Company neither initiates the transmission of information, selects the receivers of information, nor selects nor modifies the information contained in the transmission. 

Client acknowledges that Client’s messages are transmitted unencrypted and that Client should not expect that its messages will always remain private and secure.

Telecommunications Charges.

Client will not purposely route messages to high-cost areas for origination or termination of telecommunications traffic on the Services. Messages may be monitored and reported upon each billing cycle to ensure sound traffic patterns. Excessive routing of calls to high-cost areas will be addressed to Client by Company and fines may be assessed to recover excess charges from Company VoIP termination companies.

Supplemental Payment Terms for Messaging Services.

Your payment for the Services, keywords, DIDs, usage-sensitive fees and/or plans (a portion of which also includes software maintenance and upgrades, as well as customer support) shall be deemed completed when Company receives the full amount of payment owed for such Services, keywords, DIDs and/or plans. You are responsible to pay for any message or broadcast you attempt to send to any number, regardless of whether the message is actually received by the intended recipient. As Company is dependent on other entities for the delivery of your messages and broadcasts, the price per credit may require adjustment in order to account for costs that are not within Company’s control. Accordingly, Company may adjust its prices from time to time without prior notice. You are responsible for any and all third-party fees, charges, or similar, including but not limited to payphone, toll-free origination, SMS/MMS carrier, and brand and/or campaign registration fees, as well as other charges and fees should they arise or be billed by any underlying carrier, provider or other third party directly or indirectly involved in the provision of the Services under this Agreement.

Company will charge your indicated method of payment for the Services, keywords, DIDs and/or plans in accordance with the terms of the applicable Order Form. Company will assess an additional charge based on the costs Company incurs for porting each DID number assigned to you that you request to be ported within six months of the original assignment by Company and Company may further restrict the ability to port telephone numbers assigned to you by Company consistent with FCC regulations. Your account will be credited within 24 hours of Company verifying receipt of your payment. If you have elected to make a payment by credit card and Company does not receive payment from the credit card issuer, you agree to pay all amounts due immediately upon demand by Company.

As between you and Company, you are responsible for all charges related to purchases made using your account and payment method, whether or not you authorized such purchases. Standard charges apply to any test call or message sent originating from your account or initiated using your API key. 

All messages purchased, or pre-purchased, pursuant to any bundle or other pricing plan expire at the end of each thirty (30) day billing period (“Standard Billing Period”) and do not roll over.  If during any Standard Billing Period, you incur incremental charges that are in excess of your monthly plan price (the “Billing Threshold”), Company may automatically charge that amount to your credit card on file. 

Suspension Right.

Company reserves the right to stop, block, and/or refuse to send any messages that are not in compliance with the Agreement, including this or any other Schedule.  

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