Terms of Service
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 AGREEENT 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: May 23, 2022
1. Overview. Welcome to the family of sites provided by Dataowl LLC and its affiliates (“Company”). These terms and conditions (this “Agreement”) are entered into by and between the 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 and any attachments, addenda, or exhibits referenced in the Agreement, and any Order Forms that reference this Agreement.
Company reserves the right to change this Agreement from time to time. Any updates to this Agreement shall be posted on this website. 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 in the event of any changes that would materially, negatively affect your rights and remedies under this Agreement. By continuing to use any of the Company Sites or Services after Company posts or notifies you of any changes, you accept this Agreement, as modified, on behalf of the Client. By accessing one of the Company Sites or 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 the Client. The terms of this Agreement shall control in the event of any inconsistency, ambiguity, or conflict between the terms herein and the terms of a previously executed master services agreement, or other similar agreement, between the parties.
This Agreement is written in the English language. Company does not guarantee the accuracy of any translated versions of this Agreement. To the extent any translated versions of this Agreement conflict with the English language version, the English language version of this Agreement shall control.
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 remedies.
The headings used herein are included for convenience only and will not limit or otherwise affect this Agreement.
IF YOU DO NOT AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, PLEASE LEAVE THIS WEBSITE BY CLOSING YOUR INTERNET BROWSER WINDOW NOW. IF YOU DO NOT INTEND ON USING THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT, DO NOT UTILIZE THE SERVICES PROVIDED BY COMPANY.
2. Services. Company provides a web-based interface 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), messaging applications, messaging gateway access, data encryption, data transmission, data access, data storage, digital menus, loyalty programs, online ordering, and data synchronization software, as well as software maintenance and upgrades and customer support, and such other offerings and services as may be added in the future (collectively, the “Services”). Company will provide those specific Services as set forth in one or more separately executed order form(s) between Company and Client (the “Order Form”).
Company transmits 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 route. Client is responsible for obtaining and maintaining at its sole expense all computer hardware, software and communications equipment needed to access and use the Services, and for paying all access charges (e.g., ISP, telecommunications) incurred while using the Services. Company is not responsible for and has no liability with respect to the selection, purchase, maintenance, or proper functioning of any such hardware, software, and communications equipment. Company transmits and receives SMS and MMS messages via other 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 upon the Company. While Company uses commercially reasonable efforts to transmit Client messages and broadcasts to the applicable network for final delivery to Client’s designated recipients in a timely manner, the final 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 contents are deemed to have zero value. Client understands and agrees that Company is only a conduit for the transmission of Client’s information, and that Company neither initiates the transmission of information, selects the receivers of information, nor selects nor modifies the information contained in the transmission.
3. Fees; Payment. Your use of the Services is contingent on your paying for such use in the amounts and using the methods indicated on the Order Form. 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. Unless otherwise specified in the Order Form, all invoices from Company to Client 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. 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.
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 the provider of the payment method you choose (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 the provider of the payment method.
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. In the event of a non-payment by Client under this Agreement, Company shall be entitled to immediately proceed with collection remedies 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 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.
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.
4. Client Content and Information. The parties acknowledge and agree that any information or materials that Client or individuals acting on Client’s behalf provide to the Company, and the content of any messages Client generates through the Services, shall remain the property of Client (“Client Information”). By providing any such Client Information to the Company, Client grants to the Company a worldwide, royalty-free, assignable, sublicensable, fully-paid, perpetual license to use and host such Client Information as required in order to provide the Services as contemplated herein. The Company shall not use Client Information for any purpose other than as contemplated herein. In connection with Client Information, Client warrants and represents to the Company that Client has all rights, title and interests necessary to provide such Client Information to the Company, and that Client’s provision of such Client Information to the 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. Client acknowledges that as part of the Services, Company may collect and process the personal information of consumers. Client agrees that Company may use this personal information, whether provided by Client, Client’s customer, or contained in a point-of-sale system or otherwise (collectively, “User Data”), in perpetuity for any lawful business purpose, including, without limitation, analyzing and enhancing the Website and Services, adding new services, creating market trend analyses (including, without limitation, analyses on behaviors related to consumer purchases, inventory velocity, pricing, regional trends, etc.) by using data capture and analysis tools and other similar tools to extract, compile and analyze User Data, and disclosing such User Data to third parties for a variety of purposes, including, but not limited to, such third parties’ unaffiliated advertising and marketing purposes.
Notwithstanding the foregoing, Company may use any and all non-personally-identifiable information that Company captures, collects or has access to in connection with the Services and/or your use of the Website, whether provided by you, your customer or contained in a point-of-sale system or otherwise (collectively “Blind Data”), for any lawful business purpose, including, without limitation, analyzing and enhancing the Website and Services, adding new services, creating market trend analyses (including, without limitation, analyses on behaviors related to consumer purchases, inventory velocity, pricing, regional trends, etc.) by using data capture and analysis tools and other similar tools to extract, compile and analyze Blind Data, and disclosing such Blind Data to third parties for a variety of purposes, including such third parties’ unaffiliated advertising and marketing purposes. Such Blind Data shall be solely owned by Company.
5. Username/Password. As part of the registration process, Client will need a username and/or password. Client shall provide the Company with accurate, complete, and regularly updated member profile information. Client agrees to notify the Company of any known or suspected unauthorized use(s) of Client’s user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of Client’s username or password. Client shall be responsible for maintaining the confidentiality of Client’s password. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of Client’s user account, in the Company’s sole discretion, and Client may be reported to appropriate law-enforcement agencies.
6. Intellectual Property; DMCA Policy. Client is permitted to access the Services, and any content provided by the Company (which may include text, images, hosted software, sound files, video or other content), solely for the purpose of purchasing and utilizing the Services and communicating with the Company. The Company hereby grants to Client a worldwide, fully paid-up, perpetual, 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. The Company may have copyrights, trademarks, patents, trade secrets, or other intellectual property rights covering subject matter in the Services, including the web pages that are part of the Services. Except as expressly provided in this Agreement, the availability of the Services does not give Client any license to these patents, trademarks, trade secrets, copyrights, or other intellectual property. All copyrights, trademarks, patents, trade secrets and other intellectual proprietary rights contained in the Services are the sole property of the Company or its licensors, each of whom reserves all rights with regard to such materials. In addition, Company solely owns all right, title, and interest in and to any suggestions, ideas, enhancement requests, feedback, recommendations or any other information provided by the Client or any other party relating to the Services. 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, including any proprietary communications protocol used by the Services, without the express written permission of the Company. All other 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 Company services. Except to the extent set forth herein, Company does not grant Client any license, express or implied, to its intellectual property rights (including but not limited to patents, copyrights, trade secrets and trademarks). Company expressly reserves all rights not expressly granted hereunder. The parties further acknowledge and agree that any information, data or materials that Company provides in connection with the Services shall remain the sole property of Company (“Company Information”). When providing any such Company Information to the Client as part of the Services or Order Form, Company grants to Client a worldwide, non-exclusive, royalty-free, license to use such Company Information as permitted under the Services. Client shall not use Company Information for any purpose other than as contemplated herein.
DMCA Policy. The Company respects the intellectual property rights of others and expects its users to do the same. 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, Company will respond expeditiously to claims of copyright infringement committed using the Services and/or the Company Sites if such claims are reported to Company’s designated DMCA Agent. If you are a copyright owner or an agent thereof, please notify us of the alleged copyright infringement taking place on or through the Company Sites by contacting our designated agent. Our designated agent’s contact information is:
433 W. Van Buren Street, Suite 200
Chicago, IL 60607
Such notice must include the following:
Reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example: title, author, any registration or tracking number, URL);
Reasonably sufficient details to enable us to identify and locate the material that is claimed to be infringing (for example a link to the page that contains the material);
Your contact information so that we can contact you (for example, your address, telephone number, email address);
A statement that you have a good faith belief that the use of the allegedly infringing material is not authorized by the copyright owner, its agent, or the law;
A statement, under penalty of perjury, that the information in the notification is accurate and that you are the owner or are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed.
Your physical or electronic signature.
Upon receipt of the DMCA notice, Company will take whatever action it deems appropriate, in its sole discretion, including removal of the content at issue from the Company Sites. It is Company’s policy, in appropriate circumstances, to terminate the accounts of users who are repeat infringers or are repeatedly charged with infringement.
7. Usage Policy. By agreeing to this Agreement, you accept that the Services are provided for professional use only, and you agree that your use of the Company Sites or Services shall not include:
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 Company Sites; or
Engaging in any other activity that Company believes could subject it to criminal liability or civil penalty/judgment.
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 Company’s Anti-Spam Policy and as required by any applicable law or regulation.
Each opt-in confirmation, opt-out confirmation, and “HELP” message response automatically sent to consumers will count as an SMS and be charged to your account. You agree to maintain a list of consumers that opt out of future messages (the “Account Opt Out List”) and that it is your sole responsibility to ensure that messages you initiate through Company are not sent to consumers who appear on the Account Opt Out List. Company will not be responsible for any messages incorrectly sent to a consumer on the Account Opt Out List.
You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for any and all acts or omissions that occur under your account, including without limitation the content of the messages that you create and initiate through the Services.
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).
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 are solely responsible for obtaining any rights or licenses to any content, intellectual property or data, including without limitation sound files, pictures or videos, for inclusion in any outbound messages.
You agree to provide legally required contact information in any outbound message when and where required by any applicable local, state, national or international law or regulation. 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.
Client will not purposely route calls to high-cost areas for origination or termination of telecommunications traffic on the Company system. Calls 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.
Client agrees that Company shall have the right to register and/or host URLs on behalf of Client, under Client’s business name, in connection with Company’s provision 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 consumer consents required for Company’s tracking of activity on such URLs and/or landing page, which Company uses to provide the Services, including without limitation the measurement of click-through rates, conversions, and Client’s return on investment.
Client will be solely responsible and will indemnify Company for any and all fines, fees, charges, or similar imposed on Company by an underlying carrier or other provider due to Client’s acts or omissions.
Additionally, in order to ensure Client’s compliance with this Agreement, Company may, from time to time, randomly check the messages that Client sends. Client acknowledges and agrees that the Client will not send any confidential or proprietary information (except as otherwise required for Client’s use of the Services as contemplated herein) or Protected Health Information (“PHI”), as defined by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), to the Company.
Company reserves the right to stop, block, and/or refuse to send any messages that are not in compliance with this Usage Policy.
8. Representations and Warranties. Client represents and warrants that:
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 Client in breach of any other contract or obligation.
Client is duly licensed and approved by all relevant governmental authorities 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, regulations and other binding government and judicial requirements when (i) accessing, acquiring, disclosing, modifying, or otherwise processing Client Information; and (ii) using or accessing Company’s Services, including compliance with Do Not Call Registry under the Telephone Consumer Protection Act.
Client will provide all notices and obtain all express consents (such notices and consents, the “Express Consents”) from each consumer as required under applicable laws in connection with Company’s processing of any and all data of a consumer. Express Consents will be clear and conspicuous and will generally specify the categories of consumer data that you will receive and how you will use, store, and otherwise process it, in addition to any other required disclosures under applicable laws. You will maintain records (which may include technical logs, screenshots, versions of Express Consents obtained) to demonstrate your compliance with this section and will promptly provide such records to Company upon request.
Client will obtain all consents legally required for Company to send email and text messages to Client customers. Consents and opt-outs are the sole responsibility of Client and Company will have no liability for the failure to obtain consents or monitor opt outs for any services provided hereunder.
Client’s activities under this Agreement and use of the Services, including the content of Client’s messages, will not violate the Usage Policy or infringe or otherwise violate the rights of third parties.
Client has the full legal right and power to provide the Client Information and User Data to Company for the purposes contemplated under this Agreement.
Client is and shall remain in compliance with all applicable laws, regulations, and industry standards, including without limitation the Telephone Consumer Privacy Act (“TCPA”), all applicable data privacy laws, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, any applicable carrier guidelines, the CTIA’s Messaging Principles and Best Practices, and all other laws and regulations concerning privacy, telemarketing, and Internet marketing.
In no event shall Client provide to Company or any third party (via the Services) any PHI.
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.
9. 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. 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, User Data terms, warranty disclaimers, indemnification obligations, disclaimers, exclusions and limitations of liability, effect of termination, dispute terms, and general terms.
10. 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 any and 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.
11. 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, the Company may elect to suspend or terminate Client’s use of the Services and/or recover any damages from Client arising from the event(s) giving rise to the suspension. Upon any such suspension, Client is still responsible for any obligations then accrued. Client’s obligation to pay all amounts accrued and owed by Client shall continue even after any suspension. Client shall cease all use of the Services upon the expiration, termination, or cancellation of this Agreement.
12. Limited Warranty; Limitation of Liability. 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. Further, while the Company utilizes electronic and physical security to reduce the risk of improper access to or manipulation of data during transmission and storage, it cannot guarantee the security or integrity of the data and shall have no liability for breaches of security or integrity or third-party interception in transit, nor for any damage which may result to Client’s computer or other property by Client’s use of the Services.
Client acknowledges that Client’s messages are transmitted unencrypted and that Client should not expect that its messages will always remain private and secure.
THE COMPANY SITES, THE SERVICES, AND THE INFORMATION ON OR AVAILABLE THROUGH THE COMPANY SITES AND SERVICES, IS 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. COMPANY DOES NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR WILL MEET ANY OF CLIENT’S 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, OR RELATED CONTENT, FOR WHICH IS OR MAY BE PROVIDED BY ANY AFFILIATES OR ANY OTHER THIRD PARTY, INCLUDING IN RELATION TO ANY INACCURACIES OR OMISSIONS IN THE SERVICES AND/OR COMPANY’S LITERATURE.
IN NO CASE SHALL COMPANY, ITS EMPLOYEES, 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 OR ANY CONTENT OR PRODUCT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE, EVEN IF SUCH 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, THE 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.
The Company will not be liable for any act or omission of any other company or companies furnishing a portion of the Services (including without limitation communications carriers or ISPs), or from any act or omission of a third party, including those vendors participating in the Company’s offerings made to Client, or for equipment that it does not furnish, or for damages that result from the operation of Client-provided systems, equipment, facilities or services that are interconnected with the Service. Without limiting the foregoing, the Company is not responsible, and shall not be liable, for the failed final delivery of any communication initiated directly or indirectly by Client through the Services due to any act or omission of applicable downstream networks, including without limitation communications carriers.
13. Indemnification. To the fullest extent permitted by law, 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, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements and attorneys’ fees) arising from or relating to any actual or threatened claim, suit, action, proceeding, governmental investigation or enforcement action based upon or arising out of: (i) Client’s breach of this Agreement or the documents they incorporate by reference, (ii) Client’s violation of any law 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, or (iv) any use of Client’s account or the Services due to Client’s acts or omissions. Client agrees to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, but the 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 damages caused to the Company by Client, its affiliates, representatives, or agents as a result of a violation of local, state, national or international laws, regulations, or similar, including but not limited to those damages that may arise from your fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by the Company to Client.
14. 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.
15. Links to Other Websites. The Company Sites and 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 contents of such third-party websites. Company is not responsible for the content of linked third-party websites and does not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk.
16. Links to Company Sites. Company consents to links to the Company Sites which conform to the following: the appearance, position, and other aspects of any link to the Company Sites may neither create the false appearance that an entity or its activities or products are associated with or sponsored by Company nor be such as to damage or dilute the goodwill associated with the name and trademarks of Company or its affiliates. Company reserves the right to revoke this consent to link at any time in its sole discretion, without notice.
(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 without the consent of Client to (i) a parent or subsidiary; (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 in its sole discretion.
(b) Entire Agreement. This Agreement, together with any applicable Order Form, 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.
(c) Severability. In case any one or more of the provisions contained 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 applicable law, 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 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 hereunder will be in writing. Any notice, request, demand, claim, or other communication hereunder shall 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 404 West Harrison Street, STE 200, Chicago, IL 60607, Attn: Senior Vice President – Operations; and (ii) by e-mail to email@example.com and firstname.lastname@example.org.
(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.
18. 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.
19. ARBITRATION CLAUSE AND CLASS ACTION WAIVER – IMPORTANT – PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
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 email@example.com.