Terms & Conditions
Some of the Services are provided in conjunction with Constant Contact, Sendible, Inc., Amazingmail, and Callfire. Company, Constant Contact, Sendible, Amazingmail, Callfire, and any other vendors used by Company to provide the Services are collectively referred to as the “Service Providers”.
Your right to use the Services is personal to you and you agree not to resell the use of the Services.
3. DATA PROTECTION AND STORAGE OF MESSAGES
While your account is active, Service Providers will store messages sent and received through your account. Company is providing Services for a limited time period related to a specific trade show event. Customer acknowledges that once the limited time period has passed, the Customer’s account will be terminated and Customer will no longer be able to access the Services. Contact lists are maintained while the account is active. Service Providers shall maintain administrative, technical and physical safeguards to protect the security, confidentiality and integrity of customer information in its possession. Customer acknowledges that Service Providers may change their practices and limitations concerning storage of messages, at any time. Customer further agrees that this feature is provided as a convenience to Customer only and Service Providers have no responsibility or liability whatsoever for the deletion, loss, disclosure of, or failure to store any messages and/or other communications maintained or transmitted by the Services.
4. MEMBER ACCOUNT, PASSWORD, AND SECURITY
You must complete the sign-up process by providing us with current, complete and accurate information as prompted by the applicable registration form. You agree to notify Company promptly of any changes to this information. You also will choose a password. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, you are entirely responsible for any and all activities that occur by all users associated with your account.
You agree to notify Company immediately of any unauthorized use of your account or any other breach of security. Service Providers will not be liable for any loss that you may incur as a result of someone else using your password or account, with or without your knowledge. However, you could be held liable for losses incurred by Service Providers, their vendors, or another party due to someone else using your account or password. You may not use anyone else’s account at any time, without the permission of the account holder.
5. USE OF SERVICES/CUSTOMER RESPONSIBILITIES
You must: (a) obtain and pay for all equipment and third-party services (e.g. telephone and computer equipment) required for you to access and use the Services; and (b) maintain the security of your password and any other confidential information relating to your account.
Images hosted by Company on Service Provider controlled servers may only be used in connection with the Services and for no other purpose whatsoever. To the extent you use images provided by Company, Company hereby grants you a limited, non-exclusive, non-transferable sublicense to use the images in an unaltered state solely in connection with your use of the Services.
6. NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Services, you will not use the Services for any purpose that is unlawful or prohibited by this T&C and any notices. You may not use the Services in any manner that could damage, disable, overburden, or impair any Service Providers’ server, or the network(s) connected to any Service Providers’ server, or interfere with any other party’s use and enjoyment of any Services. You may not attempt to gain unauthorized access to any Services, other accounts, computer systems or networks connected to any Service Providers’ server or to any of the Services, through hacking, password mining, or any other means. You will not obstruct the identification procedures used by Service Providers in the Services.
You represent that the information submitted for transmission via the Service Providers’ network for the Services is for lawful purposes only and that the transmission of messages or files is not in violation of any federal, state or provincial laws including, but not limited to, encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability or otherwise violate any local, provincial, state, national or other law. You may not use the Services to upload, post, reproduce or distribute, in any way, any information, software or other material protected by copyright or any other intellectual property right without first obtaining the permission of the copyright holder. You agree to comply with all applicable laws, regulations, or conventions including those related to email marketing, anti-spam, anti-phishing, data privacy, international communications, and export of technical or personal data.
You are fully responsible for the content of your transmissions through the Services and agree and acknowledge that you are the creator of all content, and the Service Providers are not the author or publisher of any content and Service Providers do not rent or sell lists of any kind. Service Providers simply act as a passive conduit for you to send a receive information of your own choosing.
You shall not use the Services to store: (a) any “protected health information” (as such term is used in the Health Insurance Portability and Accountability Act of 1996); or (b) any other type of information that imposes independent obligations upon Service Providers.
Company prohibits the use of the Services or web sites by any person or entity that, encourages, promotes, provides, sells or offers to sell products or content relating to illegal or fraudulent activities (or services related to the same), including, but not limited to, illegal drugs; pirated computer programs; instructions on how to assemble or otherwise make bombs, grenades or other weapons; material that exploits children, encourages violence, spam, obscenity/sexually explicit, and similar activities. This is not an exhaustive list, and Company, in its discretion, may determine whether your use is prohibited and its determination shall be final, binding and conclusive for all purposes under this T&C. Company will terminate your use of the Services if it determines such prohibited content or use is in violation of this T&C. Any information stored on the Service Providers’ servers that is deemed to be unlawful or in contravention of the T&C or legal and regulatory requirements may be deleted at any time by Company without notice. Company reserves the right to remove any image which contravenes this T&C without notice to you.
Company does not:
• Represent or endorse the accuracy or reliability or any opinion, advice or statement made through the Services.
• Assume liability for any harassing, offensive or obscene/sexually explicit material distributed through the Services by you or others under your account.
• Assume any liability for any material distributed through the Services by you or others under your account which is distributed in violation of any third party’s copyright or other intellectual property right.
• Assume liability for claims concerning unsolicited email sent by you or others under your account including, as applicable, but not limited to, the CAN-SPAM Act and CASL.
Company reserves the right at all times to disclose any information as they deem necessary to satisfy any applicable law, regulation, legal process or governmental request. Company reserves the right but is not obligated to review the content of any of your messages for compliance with this T&C and other legal requirements upon receipt of a complaint. Company further reserves the right to take any other action with respect to the Services that Company deems necessary or appropriate, in its sole discretion, if Company believes you or your information may create liability for Company or others, compromise or disrupt the Services for you or other customers, or cause Service Providers to lose (in whole or in part) the services of the ISPs or other suppliers.
You agree to indemnify and hold Company and its affiliates, suppliers (including Constant Contact, Sendible, Amazingmail and Callfire), agents business associates, resellers, and licensors harmless from any and all direct, indirect or consequential claims, losses, damages, judgments, expenses and costs (including, but not limited to, any attorney’s fees and expenses) arising out of your use of the Services, your violation of the T&C, and the delivery of any of your messages and documents using the Services, or the infringement of any trademark or copyright by you.
All programs, services, processes, designs, software, technologies, trademarks, trade names, inventions and materials comprising the Services are wholly owned by Company and/or its licensors except where expressly stated otherwise.
8. UNSOLICITED MARKETING
Prohibition on Spam; Permission Practices.
(a) Prohibition on Spam. The Site and the Products may not be used for the sending of unsolicited email messages (sometimes called "spam"). All messages sent by means of the Site or the Products shall be in compliance with our Anti-Spam Policy.
You are responsible for ensuring that your use of the Site and the Products do not generate a number of spam or other complaints in excess of industry norms. We may terminate your access to or use of the Site and the Products if we determine that your level of spam or other complaints is higher than industry norms, as determined by us in our sole discretion. As a matter of privacy, we will not share with you information about those recipients who complain about your use of the Products or file a spam report against you.
You agree to import, access or otherwise use only contact lists in connection with the Site and the Products for which all listed parties have consented to receive correspondence from you (such as by opting into your "Join My Mailing List" link). It is not sufficient consent to receive email correspondence from you if a person or organization participates in a survey or registers for an event, clicks "Like" on your Facebook® page, or "follows" you on Twitter®. If you have used our feature that allows you to request a recipient to confirm that you have the recipient's permission to send messages to such recipient (assuming such use is permitted by laws applicable to you), and such recipient has not responded or does not respond affirmatively to such request for confirmation, you agree that you shall not send messages to that recipient. You agree not to send messages through the Site or the Products to distribution lists, newsgroups, publicly available press or media addresses or purchased email addresses.
We reserve the right without notice to take all measures of any nature (whether legal, technical or otherwise) to prevent unsolicited bulk email and/or other unauthorized email, messages or campaigns from entering, utilizing or remaining within our network.
(b) Messages. In your use of the Site or the Products, you shall represent yourself or your organization accurately and will not impersonate any other person, whether actual or fictitious.
You agree that you are the sole or designated "sender" (as such term is defined in the CAN-SPAM Act of 2003 and any rules or regulations adopted under such act (the "CAN-SPAM Act")) of any message sent by you using the Site or the Products. Similarly, for messages sent to Canadian email accounts, you are the sole person sending or causing or permitting the message to be sent by you using the Site or the Products (within the meaning of Canada's Anti-Spam Legislation, S.C. 2010, c. 23 ("Canada's Anti-Spam Legislation")).
You agree that for any email message sent by you using the Site or the Products, (i) the "from" line of any email message sent by you using the Site or the Products will accurately and in a non-deceptive manner identify your organization, your product or your service, (ii) the "subject" line of any email message sent by you using the Site or the Products will not contain any deceptive or misleading content regarding the overall subject matter of the email message, and (iii) you will include your valid physical address, which, if you are located in the United States, may be a valid post office box meeting the registration requirements established by the United States Postal Service.
(c) Unsubscribe. Every email message sent in connection with the Products must contain an "unsubscribe" link that allows subscribers to remove themselves from your mailing list and a link to the then-current About Our Service Provider description. Each such link must remain operational for at least 60 days after the date on which you send the message, and must be in form and substance satisfactory to us. You agree that you will not remove, disable or attempt to remove or disable either link. You shall monitor and process unsubscribe requests received by you directly within 10 days of submission and update the email addresses to which messages are sent through your Constant Contact account. You cannot charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an unsubscribe request. As required under the CAN-SPAM Act and other applicable laws, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your Constant Contact account and this Agreement.
You agree that you shall not utilize the Site or the Products to send any message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose) (a "commercial electronic mail message" as defined in the CAN-SPAM Act or Canada's Anti-Spam Legislation) to any person who has opted out or otherwise objected to receiving such messages from you or another sender on whose behalf you may be acting.
9. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
THE SERVICES ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, REPRESENTTIONS OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERTION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE WITH RESPECT TO THE SERVICES OR ANY OTHER PRODUCT, DOCUMENTATION OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH. COMPANY FURTHER EXPRESSLY DISCLAIMS GUARANTEE OF CONTINUED AVAILABILITY OF THE SERVICES OR ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, DURABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT INCLUDING, BUT NOT LIMITED TO, MARKETING LITERATURE OR COLLATERAL OR STATEMENTS REGARDING PERFORMANCE OF THE SERVICES BY COMPANY OR ITS SUPPLIERS WHICH IS NOT CONTAINED IN THIS SECTION SHALL BE CONSIDERED TO BE A WARRANTY OR REPRESENTATION, AND SHOULD NOT TO RELIED UPON AND IS NOT BINDING UPON COMPANY.
NONE OF COMPANY NOR ANY OF ITS SUPPLIERS SHALL BE HELD RESPNOSIBLE IN ANY WAY OR BY ANY MEANS, EITHER DIRECTLY OR INDIRECTLY, FOR ANY COMMUNICATIONS OR OTHER DIFFICULTIES OUTSIDE OF COMPANY’S OR ANY SUCH SUPPLIERS’ CONTROL WHICH COULD LEAD TO ANY DELAY, INTERRUPTION OR MISDIRECTION OF MESSAGE DELIVERY SERVICE TO THE CUSTOMER’S EMAIL ADDRESS.
THE AGGREGATE LIABILITY OF COMPANY OR ITS SUPPLIERS, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH OR FAILURE OF AN ESSENTIAL PURPOSE), TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION OR OTHERWISE IN RESPECT OF A SINGLE OCCURRENCE OR A SERIES OF OCCURENCES SHALL IN NO CURCUMSTANCES EXCEED THE AMOUNTS PAID BY CUSTOMER TO COMPANY OR SUPPLIERS WITH RESPECT TO THE SERVICES GIVING RISE TO THE CLAIM. IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS OR AFFILIATES OF ANY OF THEM BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY FAILURE TO REALIZE EXPECTED SAVINGS, LOSS OF BUSINESS, LOSS OF REVENUES OR PROFITS, LOSS OF DATA OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS (INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA RESULTING FROM DELAYS, NON-DELIVERIES, WRONG DELIVERIES, SERVICE INTERRUPTIONS, PERFORMANCE OR FAILURE OF THE INTERNET OR COMPANY’S INTERNET SERVICE PROVIDER, OR DELETION OR FAILURE TO SAVE DELIVERIES), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THEY ARE FORESEEABLE.
IN THE EVENT APPLICABLE LAW DOES NOT PERMIT SUCH EXCLUSIONS TO BE COMPLETELY DISCLAIMED, THESE EXCLUSIONS SHALL BE INTERPRETED AS NECESSARY TO GIVE COMPANY AND ITS SUPPLIERS THE FULL BENEFIT OF ANY DISCLAIMER OR LIMITATION AS PERMITTED BY APPLICABLE LAW. THE EXCLUSION OR LIMITATION OF COMPANY’S, SERVICE PROVIDERS’, OR THEIR SUPPLIERS’ LIABILITY SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THE T&C FOR ANY REASON.
Company is providing Services for a limited time period related to a specific trade show event. Customer acknowledges that once the limited time period has passed, the Customer’s account will be terminated and Customer will no longer be able to access the Services.
Company reserves the right to suspend or terminate Services if Company, in its sole discretion, believes that the Services are used for a purpose that is unlawful or prohibited by the T&C or any notices.
Company shall have no responsibility to notify any third party, including any third party providers of services, merchandise or information, of any suspension, restriction or termination of your account. Company shall have no obligation to maintain any messages or other content in your account or forward any unread or unsent message to you or any third party.
Any termination of your account shall not relieve you from any amounts owing or any other liability accruing under the T&C prior to the time that such termination becomes effective.
The T&C and its terms, are confidential and you agree to maintain their confidentiality.
Client records are regarded as confidential and therefore will not be divulged to any third party, other than if legally required to do so to the appropriate authorities. We will not sell, share, or rent your personal information to any third party or use your e-mail address for unsolicited mail. Any emails sent by this Company will only be in connection with the agreed Services.
12. ADDITIONAL TERMS RELATED TO EMAIL SERVICE, POWERED BY CONSTANT CONTACT
Constant Contact, Inc. ("Constant Contact," "we" or "us") provides small businesses and organizations with a variety of products and services and related offerings, features and functionalities (individually, a "Product" and collectively, the "Products"). This website (including any related sub-site, service, feature or functionality) (the "Site") and the Products are provided subject to these Website and Product Terms and Conditions of Use, as they may be amended by us, and any guidelines, rules or operating policies that we may post on this website, including, without limitation, our Anti-Spam Policy, our Prohibited Content and Commerce Statement and our Privacy Statement, which are specifically incorporated herein by reference (collectively, the "Agreement"). We may amend this Agreement from time to time due to changes to the Site or the Products, to account for developments under the law, or for any other commercially reasonable reason. Future performance by us of our obligations under this Agreement is sufficient consideration for any such amendment. Any amendment will only become effective upon notification to you (by email or by posting on our Site) and, if you do not want to agree to any such amendment, you should stop using the Site and the Products and contact Company to cancel your account. By checking the "Terms & Conditions" box on the sign-up page, by logging in to your Constant Contact account, by accessing the Site or by accessing any of the Products, you accept this Agreement on behalf of yourself and any business or organization you represent (collectively, "you"). Any terms and conditions that may be contained in any acknowledgement, invoice, purchase order or other form you provide are specifically null and void.
Communication with You.
We reserve the right to send messages to you to inform you of (a) changes or additions to the Site, the Products, or this Agreement, (b) violations of this Agreement or actions relating to your privilege to access and use the Site or the Products, or (c) any other matter related to the Site, the Products or this Agreement. Nothing in this provision shall require or obligate us to send any notice if no notice is required or mandated elsewhere in this Agreement.
You agree that we may, but are not obligated to, monitor or record any of your telephone conversations and chat texts with us for quality control purposes, for purposes of training our employees and for our own protection. You further agree that any Account Users or anyone else you authorize to use your account consents to such monitoring or recording as well. You acknowledge that not all telephone lines or calls are recorded by us and that we do not guarantee that recordings of any particular telephone calls will be retained or are capable of being retrieved.
BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT WE MAY CONTACT YOU VIA TELEPHONE (EITHER BY A LIVE PERSON, AUTOMATIC DIALER, PRERECORDED MESSAGE OR A COMBINATION OF THE FOREGOING) TO DISCUSS THE PRODUCTS AND YOU CONSENT TO SUCH CONTACT. FURTHER, YOU CONSENT TO RECEIVE SUCH PHONE CALLS AT THE TELEPHONE NUMBER YOU ENTERED ON THE SITE. You do not need to agree to this provision in order to use the Site or purchase the Products and if you would like us not to contact you by telephone, please send an email to email@example.com. Upon request, we may also contact you via telephone (including by automatic dialer or prerecorded message) or text you in order to provide you with your password or other information you request.
Other Billing Arrangements.
If you receive the Products by means of one of our re-sellers or partners (a "Reseller"), the Reseller may be responsible for billing you for the Products and you may be subject to a different fee schedule and additional terms and conditions. In the event of any conflict between this Agreement and the Reseller’s terms and conditions, this Agreement shall control except with respect to the payment provisions set forth in this Section . If you cease to be a customer of a Reseller, any special pricing, benefits or terms may no longer be available to you. We may rely on information provided by the Reseller, if any, with respect to the status of your Constant Contact account.
Limitations on Use.
You understand that not all messages or campaigns sent through use of the Site or the Products will be received by or will be capable of being viewed by their intended recipients. You further understand that delivery of messages by means of the Site or the Products may involve transmissions over various networks, and that the messages (including images and text contained therein) could be reformatted or otherwise revised to conform to the formatting or technical requirements of such networks. You also understand and agree that messages exceeding maximum character limitations may be truncated, abbreviated, reduced or otherwise abruptly cut short.
You agree that we may establish general practices and limits concerning use of the Site or the Products, including without limitation the maximum number of messages or campaigns that may be distributed by you and/or the maximum size of any messages or campaigns that may be transmitted by means of the Site or the Products. We reserve the right to modify, revise, suspend or discontinue any Product in whole or in part, either temporarily or permanently and with or without notice, and you acknowledge that we are not obligated to support or update the Products in any manner. If we discontinue any Product in its entirety, we will provide you with advance notice and an opportunity to cancel your account.
For every listing, message or campaign sent or distributed via the Products, you agree that we may add a link to our Site and a statement such as "Email Marketing by Constant Contact" or "Powered by Constant Contact" in the footer or other similar location that does not unreasonably obscure the message or campaign.
You acknowledge that we may from time to time provide you with marketing advice and other coaching, template design, frequently asked questions and tips on best practices and complying with applicable law, including any sample Offer Terms. You acknowledge that such assistance and information is provided as a convenience to you and that such assistance and information are not intended to and do not constitute legal advice and that no attorney-client relationship is formed. We do not warrant or guarantee that use of or compliance with this information will be sufficient to comply with your obligations hereunder, applicable law or with third party rights.
Your Information and Content.
(a) Your Information. In using the varied features of the Site or the Products, you may provide information about yourself or your employer (such as name, contact information, or other registration information) to us and we may collect information about your use of the Site or the Products. We may use this information in accordance with our Privacy Statement and relevant "just-in-time" notices, if any, provided at the point of information collection or use. We may provide this information to courts, law enforcement authorities and/or other relevant third parties, such as internet service providers, when such disclosure is necessary or advisable, in our sole discretion, to conduct an investigation, respond to a third party or law enforcement subpoena or court order, bring legal action, prevent harm to others or pursue other relief.
(b) Your Content and Contacts. We will also obtain any information that you provide to us in connection with your use of the Site or the Products, such as contact lists (including email addresses and phone numbers of your subscribers) and content (including Business Content). We acknowledge your ownership rights in such contact lists and content ("Customer Information"). We will never sell or rent your Customer Information to anyone without your permission, and will never use your Customer Information for any purpose other than providing our products and services or as described herein. In the event we amend or revise the policy described in the immediately preceding sentence, we will provide advance notice of such amendment or revision.
You hereby grant to us a revocable, non-exclusive, royalty-free, worldwide license, with the right to sublicense, to use, reproduce, publish, distribute, perform and display the Customer Information (other than the Business Content, which is covered by the license set forth in Section 5.5 hereof) only as required by us to offer and operate the Products and related services.
You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of all Customer Information, and you are responsible for maintaining, securing and storing all Customer Information in accordance with applicable law and any contractual obligations you may have (including this Agreement). You represent and warrant that you own or have secured all rights and interest in and to the Customer Information required for us to use the Customer Information as contemplated by this Agreement. To the extent you use images or templates provided by us, we hereby grant to you a revocable, non-exclusive, royalty-free, worldwide license to use, reproduce, publish, distribute, perform and display the images solely in connection with your use of the Site or the Products.
To the extent permitted by applicable law, we may make and preserve copies of all Customer Information as necessary to provide the Site or the Products and for internal back-up and other legal or regulatory purposes.
You are responsible for making frequent backup copies of your Customer Information, including your contact lists.
You hereby agree to defend, indemnify and hold harmless us and our underlying service providers (i.e. vendors who help us provide the Products), business partners, third-party suppliers and providers, members of our Network, account providers, licensors, officers, directors, employees, distributors and agents from and against any damages, losses, liabilities, penalties, settlements and expenses (including costs and reasonable attorneys' fees) in connection with any claim or action that (a) arises from any actual or alleged breach by you of this Agreement; (b) arises from your Customer Information, including the content or effects of any messages you distribute, events you host, surveys you administer, social media campaigns you publish, Promotions or Deals you offer, donations you collect or products or services you sell (including, without limitation, claims relating to violations of law, false advertising, injuries, illness, damages, death, taxes, fulfillment, breach of Offer Terms, defective products or services or unclaimed property); (c) arises from your provision of incomplete or inaccurate information to your subscribers or customers; (d) arises from your activities or postings in any Community; (e) arises from your use of any Third Party Service (as defined below); (f) arises from your activities related to the Constant Contact Authorized Local Expert Program or the Constant Contact Boot Camp; or (g) otherwise arises from or relates to your use of the Site or the Products. You agree to provide us with prompt written notice in the event of any such claims or actions. In addition, you acknowledge and agree that we have the right to seek damages when you use the Site or the Products for unlawful purposes, in an unlawful manner, or in a manner inconsistent with the terms of this Agreement, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages. In the event that we are required to respond to a third party or law enforcement subpoena or court order that is related to your use of the Site or the Products, we may, in our sole discretion, require you to reimburse us for our reasonable expenses associated with complying with such subpoena or order.
Warranty Disclaimer; Remedies; Release.
YOU EXPRESSLY AGREE THAT THE SITE AND THE PRODUCTS (INCLUDING ANY CUSTOM SERVICES OFFERINGS) ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SITE OR THE PRODUCTS AND ANY RELIANCE BY YOU UPON THE SITE OR THE PRODUCTS, INCLUDING ANY ACTION TAKEN BY YOU BECAUSE OF SUCH USE OR RELIANCE, IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT THE USE OF THE SITE OR THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SAME. WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. NO STATEMENT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM US IN ANY MEANS OR FASHION SHALL CREATE ANY WARRANTY NOT EXPRESSLY AND EXPLICITLY SET FORTH IN THIS AGREEMENT.
WE SHALL HAVE NO LIABILITY OF ANY NATURE WHATSOEVER FOR YOUR COMPLIANCE WITH OR BREACH OF ANY LICENSE OR TERMS AND CONDITIONS OF ANY THIRD PARTIES OR THIRD PARTY SERVICES.
WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (a) THE ACCURACY OR RELIABILITY OF ANY THIRD PARTY CONTENT, OPINION, ADVICE OR STATEMENT MADE BY ANYONE OTHER THAN US, OR (b) ANY EVENT HOSTED, DONATION SOLICITED, THE RESULTS OF ANY SURVEY, OR ANY PRODUCT OR SERVICE PURCHASED OR OTHERWISE OBTAINED FROM ANY THIRD PARTY, INCLUDING OUR CUSTOMERS.
NO CLAIM MAY BE ASSERTED BY YOU AGAINST US MORE THAN 12 MONTHS AFTER THE DATE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SITE OR THE PRODUCTS SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADJUST OR REPAIR THE SITE OR THE PRODUCTS.
TO THE EXTENT THE LAW PERMITS, YOU RELEASE US FROM ANY CLAIMS OR LIABILITY RELATED TO (a) ANY CONTENT POSTED ON YOUR SITE OR IN ANY MATERIALS YOU SEND USING THE SITE OR THE PRODUCTS, (b) THE CONDUCT OF ANY OTHER CUSTOMERS OF OURS OR THEIR RESPECTIVE SUBSCRIBERS AND (c) ANY PROBLEMS THAT MAY ARISE FROM ANY REMOTE ACCESS TO YOUR COMPUTERS OR OTHER SYSTEMS YOU PROVIDE TO OUR PERSONNEL OR AGENTS FOR THE PURPOSE OF TROUBLESHOOTING ISSUES. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (IF YOU ARE A CALIFORNIA RESIDENT), AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION (IF YOU ARE A RESIDENT OF SUCH JURISDICTION).
Limitation of Liability.
EXCEPT WITH RESPECT TO DEATH OR PERSONAL INJURY DUE TO THE NEGLIGENCE OF CONSTANT CONTACT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL CONSTANT CONTACT OR ANY OF ITS UNDERLYING SERVICE PROVIDERS, BUSINESS PARTNERS, THIRD PARTY SUPPLIERS AND PROVIDERS AND MEMBERS OF OUR NETWORK, ACCOUNT PROVIDERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, DISTRIBUTORS OR AGENTS (COLLECTIVELY REFERRED TO FOR PURPOSES OF THIS SECTION AS "CONSTANT CONTACT") BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY MONEY DAMAGES, WHETHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES, EVEN IF CONSTANT CONTACT SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE), THE MAXIMUM AGGREGATE LIABILITY OF CONSTANT CONTACT TO YOU ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE APPLICABLE PRODUCT IN THE 12 MONTHS PRIOR TO THE ACCRUAL OF THE APPLICABLE CLAIM, LESS ANY DAMAGES PREVIOUSLY PAID BY CONSTANT CONTACT TO YOU IN THAT 12 MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
You agree that Constant Contact has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that they reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that they form an essential basis of the bargain between the parties.
13. ADDITIONAL TERMS RELATED TO POSTCARD SERVICE, POWERED BY AMAZINGMAIL
Retail Policies for purchasing Amazingmail® postcards and purchasing other products or services from Amazingmail on their website and their refund policy are available on their website and are incorporated herein. All costs and taxes are quoted in U.S. dollars. You must pay all applicable taxes on purchases made on their website. They may in their sole discretion add, delete or change some or all of the prices of their products and services at any time without notice.
Postcard credits may be purchased online using your credit card. During the first thirty days after purchasing postcard credits, if you are not satisfied with Amazingmail's services for any reason, you may notify Amazingmail customer support at firstname.lastname@example.org and Amazingmail will refund to you (by crediting your credit card account) the purchase price of any unused postcard credits remaining from that purchase.
Each time you purchase, Amazingmail will record the number of postcard credits you have purchased in your Amazingmail account. You may then use Amazingmail's services, including online storage of your personal images, use of postcard gallery images and the online address book and other services, at no additional charge, to design, print and mail postcards, until you have consumed the number of postcards credited to your account, or two years elapse, whichever occurs first. You will not receive any interest on the value of any unused balances in your account.
If you do not print and mail the postcards credited to your account within two years of the date of their purchase, your right to use the balance of those postcard credits will expire and they will be removed from your account. You will not have any right to receive a refund for any of the expired postcard credits.
Amazingmail is a Tool for Creating and Mailing Postcards.
Other than when you use an image or text supplied by Amazingmail or their licensors, Amazingmail will not be involved in any way with the design or creation of your postcards. Amazingmail will not routinely screen or review text or graphics before printing and mailing postcards. They cannot nor do they try to control the content of postcards created on their website. You are solely responsible for and assume all liability arising from all postcards that you and any other person using your User ID and password print and mail using the Amazingmail website. If a third party notifies Amazingmail of a problem postcard, or if they become aware of a problem postcard created by you, they may review the postcard and take any action with respect to the postcard that they deem necessary in their sole discretion, including, but not limited to, refusing to mail the postcard. The fact that they review a postcard and allow the postcard to be mailed does not mean that: (1) they approve or endorse the content of the postcard, (2) the postcard complies with all applicable laws, or (3) you will not incur any liability or harm arising from the postcard.
Return Address on Your Postcards.
Amazingmail will automatically print a return address on every postcard that you create using the Amazingmail website. The default return address is the billing address on your credit card unless you modify your return address. It is a breach of United States Postal Regulations to show a false return address on mail.
Your Content and Information.
You Will Comply with All Laws.
When you use the Amazingmail website in any way such as creating, printing and mailing postcards, you will comply at all times with all applicable United States federal, state and local laws, statutes, regulations, and ordinances and will not take any action that harms or violates the rights of any person or entity. If you mail a postcard outside the United States, you will comply with the laws of the country to which the postcard is mailed.
Amazingmail® May Cooperate with Third Parties.
You authorize Amazingmail and its vendors and contractors to cooperate with the U.S. Postal Service and any U.S. or non-U.S. law enforcement or governmental agency, which cooperation includes, but is not limited to, Amazingmail voluntarily disclosing (i.e. without being subject to a lawful order to disclose) to the U.S. Postal Service, and any U.S. or non-U.S. law enforcement and/or governmental agency any or all of Your Information and your Content.
You will indemnify and hold Amazingmail, and its subsidiaries, affiliates, officers, shareholders, employees, agents, printers, contractors, vendors, co-branders, suppliers, internet service providers, and partners harmless from any loss, cost, claim, demand or other harm of any kind, including reasonable attorneys' fees, due to or arising out of Your Information, your Content, your use of their website, the use of their website by any person who uses this website while logged on under your user name and password, postcards mailed using your user name and password, your default under any provision in this User Agreement, your violation of any laws and your violation of any rights of another person.
14. ADDITIONAL TERMS RELATED TO VOICE MESSAGING, PROVIDED BY CALLFIRE
Services described on the CallFire Sites may or may not be available in all countries or regions of the world, may be available under different trademarks in different countries and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries. You agree to use CallFire Services in accordance with all applicable guidelines as well as all state and federal laws that the Services are subject to.
CallFire transmits messages initiated by you and the level of reliability and support for special features varies according to the route. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Services, and for paying all access charges (e.g., ISP, telecommunications) incurred while using the Services.
CallFire only provides that the Services are processed correctly and further transmitted by CallFire to the applicable network. CallFire is not responsible for the final delivery of any communication initiated through CallFire’s Services, as this is out of our control and is the responsibility of downstream communications carriers.
CallFire transmits and receives text messages and voice broadcasts via other major telecommunications companies and mobile network operators, and thus CallFire’s influence over the timing of the transmission of your messages and broadcasts is within the technical constraints imposed upon CallFire. While CallFire shall use commercially reasonable efforts to transmit your messages and broadcasts to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transportation of your messages and broadcasts across the public switched telephone network and/or Internet. You should know that communications carriers assign text messages and voice broadcasts with a default lifetime and any message or broadcast that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. CallFire is not liable for any loss incurred by the failure of a message or broadcast to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from CallFire for any such non-deliveries. Furthermore, you agree that message and broadcast contents are deemed to have zero value.
You represent and warrant that the owners of the phone numbers you initiate messages to through the CallFire services have consented or otherwise opted-in to the receipt of such messages and broadcasts as required by any applicable law or regulation. You agree that you will include clear opt-out/unsubscribe information on your messages or broadcasts when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if applicable to your messages. You further agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and you further agree that you will not initiate any subsequent messages or broadcasts to any individuals after they request DNC status.
You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages and broadcasts that you create and initiate through CallFire Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through CallFire Services by visiting the following websites:
• Federal Trade Commission, http://www.ftc.gov
• Federal Communications Commission, http://www.fcc.gov
• DoNotCall Registry Info, http://www.donotcall.gov
The Telephone Consumer Protection Act (“TCPA”), the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages. CallFire is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages, broadcasts and campaigns prior to using CallFire Services. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns.
You shall schedule campaigns 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 data, including without limitation sound files, for inclusion in any outbound messages, broadcasts, and campaigns. If you are unfamiliar or unclear on the legalities of any message, broadcast or campaign, you must consult with your attorney prior to your use of CallFire Services.
You accept that the Services are provided for professional use only, and you agree that your use of CallFire Services shall not include:
• Sending unsolicited marketing messages or broadcasts (i.e. spam);
• Sending any calls to life-line services, such as hospitals, fire, police, 911 or utility- related telephone numbers;
• 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 or broadcasts, 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, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;
• Transmitting any material that may infringe upon the intellectual property rights of third parties including trademarks, copyrights or other rights of publicity;
• Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or any other harmful/deleterious programs;
• Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks;
• Attempting to gain unauthorized access to 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 CallFire believes could subject it to criminal liability or civil penalty/judgment.
You agree to provide legal contact information in any outbound campaign within the initial greeting message. You further agree that CallFire is, under no circumstances, responsible for the contents and/or accuracy of your messages or broadcasts and CallFire will only transmit them on a basis of good faith that you use the Services in accordance with these Terms. You will provide your own sound files for all outbound campaigns. CallFire will not be liable for any misuse of the Services by you. CallFire is not responsible for the views and opinions contained in any of your messages or broadcasts.
Customer will not purposely route calls to high cost non-RBOC (Regional Bell Operating Company) areas for origination or termination of telecommunications traffic on the CallFire system. Calls may be monitored and reported upon each billing cycle to ensure sound traffic patterns. Excessive routing of high-cost calls will be addressed to customer by CallFire and fines may be assessed to recover excess charges from CallFire VoIP termination companies.
You agree that any information or materials that you or individuals acting on your behalf provide to CallFire (other than information required for your use of the Services as contemplated herein) will not be considered confidential or proprietary. By providing any such information or materials to CallFire (other than information required for your use of the Services as contemplated herein), you grant to CallFire an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works of, and distribute such information and materials, and you further agree that CallFire is free to use any ideas, concepts or know-how that you or individuals acting on your behalf provide to CallFire. In connection with such information and materials, you warrant and represent to CallFire that you have all rights, title and interests necessary to provide such content to CallFire, and that your provision of the content to CallFire shall not infringe any third party’s proprietary or personal rights, including but not limited to any trademark, copyright, patent, or trade secret.
As part of the registration process you will need a username and/or password. You shall provide CallFire with accurate, complete, and regularly updated member profile information. You agree to notify CallFire of any known or suspected unauthorized use(s) of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. You shall be responsible for maintaining the confidentiality of your password. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your user account, in CallFire’s sole discretion, and you may be reported to appropriate law-enforcement agencies.
Newsletter and Communications Concerning CallFire Services.
Any email addresses submitted for a new account for use of the Services are automatically added to the CallFire newsletter. To permanently unsubscribe to any CallFire newsletter please email support@CallFire.com. By providing your telephone number to CallFire, CallFire reserves the right to contact you via calls or text messages to provide you information about your account and/or the CallFire Services requested by you. To the extent you have separately agreed to receive periodic text or voice alerts on products, services, events, special offers or other promotional messages related to CallFire, CallFire may contact you pursuant to the terms of any such separate agreement.
You are permitted to access the CallFire Site, the Services, and any content provided by CallFire (which may include text, images, hosted software, sound files, video or other content, and may be provided via the CallFire Site or otherwise) solely for the purpose of receiving information about CallFire’s business and products, purchasing and utilizing the Services, communicating with CallFire, entering prize promotions offered by CallFire, or otherwise as stated on the CallFire Site. CallFire hereby grants a worldwide, fully paid-up, perpetual, non-exclusive, non-transferable license to you to use the CallFire Site and Services solely for the purpose of using the Services.
We 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 and the CallFire Site. Except as expressly provided in these Terms, the availability of the Services does not give you any license to these patents, trademarks, copyrights, or other intellectual property. All copyrights, trademarks, patents, trade secrets and other intellectual proprietary rights contained in the CallFire Site are the sole property of CallFire or its licensors, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not copy, reproduce, retransmit, modify, alter, create any derivative works, reverse engineer, decompile, or disassemble any portion of the Services, including any proprietary communications protocol used by the Services or the CallFire Site without the express written permission of CallFire. 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.
CallFire abides by the federal Digital Millennium Copyright Act (DMCA) by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. As part of our response, we may remove or disable access to material residing on a site that is controlled or operated by CallFire that is claimed to be infringing, in which case we will make a good-faith attempt to contact the person who submitted the affected material so that they may make a counter notification, also in accordance with the DMCA. CallFire does not control content hosted on third party websites, and cannot remove content from sites it does not own or control. If you are the copyright owner of content hosted on a third party site, and you have not authorized the use of your content, please contact the administrator of that website directly to have the content removed.
Before serving either a Notice of Infringing Material or Counter-Notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with CallFire’s rights and obligations under the DMCA and, in particular, section 512(c), and do not constitute legal advice.
Notice of Infringing Material.
To file a notice of infringing material on a site owned or controlled by CallFire, please provide a notification containing the following details:
1. 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);
2. Reasonably sufficient detail 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);
3. Your contact information so that we can contact you (for example, your address, telephone number, email address);
4. A statement that you have a good faith belief that the use of the material identified in (2) is not authorized by the copyright owner, its agent, or the law;
5. A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed.
6. Your physical or electronic signature.
Then send this notice via email to: support@CallFire.com
Data Protection & Privacy.
You further recognize that CallFire does not want you to, and you warrant that you shall not, provide any information or materials to CallFire that is defamatory, threatening, obscene, harassing, or otherwise unlawful, or that incorporates the proprietary material of another.
Your use of the Services is contingent on your paying for such use (whether paid in advance or through the purchase of credits on the CallFire Sites), in the amounts and using the methods indicated on the CallFire Site. Your payment for the Services shall be deemed completed when CallFire receives the full amount of payment owed for such Services. 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 CallFire is dependent on other entities for the delivery of your messages and broadcasts, our price per credit may require adjustment in order to account for costs that are not in our control. Accordingly, we may adjust our prices from time to time without prior notice.
CallFire will charge your indicated method of payment for the Services immediately upon your confirming the payment method and amount. Amounts to be charged may include sales and other taxes where applicable and any other amounts indicated on the Site. Your account will be credited within 24 hours of CallFire verifying receipt of your payment. If you have elected to make a payment by credit card and we do not receive payment from the credit card issuer, you agree to pay all amounts due immediately upon demand by CallFire.
CallFire 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 California and is subject to any applicable California taxes. To the extent that you are responsible for any additional taxes or fees beyond those collected by CallFire, you agree that you will pay them when due to any applicable taxing authority, including any interest or penalties assessed.
CallFire 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 these Terms, any payments made by you may be subject to the agreement between you and the provider of the payment method.
As between you and CallFire, 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 sent originating from your account. In the event of accidental under billing in favor of a customer, a non-payment by customer under these Terms, CallFire 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 CallFire’s choosing, or any other costs, fees, and expenses incurred in the pursuit of collection on all customer accounts and receivables due and payable under these Terms.
Credits are paperless vouchers that you purchase and which facilitate the transmission of the CallFire Services selected by you. The chosen route as well as the destination of a message or broadcast causes the amount of credits required to either increase or decrease but, in either case, will always be made known beforehand through the Pricing Page of our CallFire Site. The submission of a seemingly-valid message or broadcast will cause an associated quantity of credits to be debited from your account and you can obtain the real-time status of your account at any time through the online interface.
Expiration of Credits and Prepaid Minutes.
Credits purchased as a part of a package or monthly plan, including any additional credits purchased during your monthly billing cycle as part of an upgrade to your plan, and not used within the month of purchase, expire at the end of the month, unless the plan explicitly provides for roll-over of credits. Individual anytime, non-monthly plan credits purchased through your account expire after 18 months from the date of purchase, at which point such credits shall expire automatically, unless otherwise stated at the time of purchase. Credits are purchased on a first-bought, first-to-expire basis. Additionally, the value of credits may change over time as the cost of transmission changes, and thus you acknowledge that the number of credits needed to utilize the Services may change correspondingly. You may request a full refund of any unused, non-monthly plan credits within one (1) business day of purchase. No other refunds will be given. Any unused value shall be forfeited upon expiration. All prices, per-minute rates, and billing increments are subject to change at any time due to fluctuations in market conditions. Notwithstanding the above, CallFire may, in its sole discretion, offer customized plans that provide for individualized terms concerning credit expiration, billing cycles, account maintenance fees and/or other agreed upon terms. The terms of such customized plans will be made known and governed by the Pricing Page of our CallFire Site.
No Warranty; Limitation of Liability.
CallFire reserves the right to modify, suspend, or discontinue the offering of any of the CallFire Services at any time for any reason without prior notice. Further, while CallFire 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 your computer or other property by your use of the CallFire Site or Services.
You acknowledge that text messages and voice broadcasts are transmitted unencrypted and that eavesdropping of communications by third parties is possible. CallFire recommends that you ensure sensitive and valuable information is communicated by a protected and/or encrypted method.
CallFire shall use commercially reasonable efforts to make access to the Services available through the required access protocols, but makes no warranty or guarantee that (i) the Services will be available at any particular time; or (ii) you will be able to access the Services at any particular time or from any particular location. CallFire 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 CallFire offerings made to you, or for equipment that it does not furnish, or for damages that result from the operation of customer-provided systems, equipment, facilities or services that are interconnected with the Service.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE CALLFIRE SITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESSED OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THESE TERMS, CALLFIRE DOES NOT WARRANT THAT THE USE OF THE CALLFIRE SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, INCLUDING, BUT NOT LIMITED TO ANY INTERRUPTIONS TO THE SERVICES CAUSED BY THE INTENTIONAL AND/OR MALICIOUS ACTS OF THIRD PARTIES (E.G., “HACKING”) NOR SHALL CALLFIRE BE RESPONSIBLE FOR ANY DATA LOSS OR LOSS OF ANY INFORMATION IN YOUR ACCOUNT, REGARDLESS OF THE CAUSE. FURTHERMORE, CALLFIRE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THAT THE CALLFIRE SITE OR SERVICES WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS. CALLFIRE MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICE, SOFTWARE, TEXT, GRAPHICS OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. CALLFIRE SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF DAMAGE TO OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THESE TERMS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE CALLFIRE SITE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE, OR DATA, CALLFIRE IS NOT RESPONSIBLE FOR THOSE COSTS. CALLFIRE'S TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE CALLFIRE SITE OR SERVICES FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE MONTHLY TRANSACTION FEE PAID BY YOU TO CALLFIRE HEREUNDER.
User Warranties; Indemnification.
You warrant and represent to CallFire that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in these Terms or in the performance of such obligations will place you in breach of any other contract or obligation. You further warrant and represent that you are and shall at all times remain in full compliance with all applicable laws, rules and regulations with regard to your use of CallFire Services, including without limitation the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, and all other laws and regulations concerning privacy, telemarketing, and Internet marketing.
You agree to indemnify and hold harmless CallFire and its affiliates and each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements and attorneys’ fees, including attorneys’ fees incurred from counsel selected by CallFire in its sole discretion) 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) your breach of the above warranties; or (ii) any use by you, or an account or computer owned by you, of the CallFire Site or Services. You agree to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, but we reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you. You acknowledge and agree to be held liable for any and all damages caused to CallFire by you as a direct result of a violation of local, state, national or international laws and regulations, including but are 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 CallFire to you.
Termination, Cancellation and/or Suspension by CallFire.
If at any time you breach these Terms, we may elect to suspend, terminate, and/or cancel your use of the Services and/or recover any damages from you arising from the event(s) giving rise to the suspension, termination, or cancellation. We reserve the right to suspend the Services at any stage for any reason we may deem necessary to continue to provide our Services in a way that may be hindered by your status as being our client, your financial status or the content of the messages or broadcasts originating from you.
Upon any such termination, cancellation, and/or suspension, you are still responsible for any obligations then accrued. Your obligation to pay all amounts accrued and owed by you shall continue even after any suspension or cancellation of your access to the Services (in whole or in part). Upon termination, for any reason, you agree to immediately cease using the Services and CallFire shall have no obligation to you after any termination or cancellation of these Terms. Should such a termination take place when you still have credits in your account, you shall receive back, at our discretion, a fair monetary value of such credits, save any expenses that may be incurred by CallFire, including, without limitation, for payment of transfer duties, legal costs, third-party costs, or penalties.
The provisions regarding ownership, payments, warranties, and indemnifications will survive any suspension, termination, or cancellation of your use of the Services or CallFire Site.
Termination by the User.
You are free to terminate or cancel your use of the Services at any time, and for any reason. If you are on a monthly plan, login to your account, downgrade to Pay & Go. Notwithstanding the foregoing, unless due to a breach solely by CallFire that it fails to cure within thirty (30) days of its receipt of your notice, in no event shall CallFire be obligated to refund to you the reasonable value of any unused credits previously purchased by you.
Links to other Websites.
The CallFire Site may contain links to third party websites. These links are provided solely as a convenience to you and not as an endorsement by CallFire of the contents on such third-party websites. CallFire 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.
CallFire cannot ensure that you will be satisfied with any products or services that you purchase from a third party website that links to or from the CallFire Site, since these websites are owned and operated by independent third parties. CallFire does not endorse any of the products/services, nor has CallFire taken any steps to confirm the accuracy or reliability of any of the information contained in such third party websites. CallFire does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against us with respect to such websites. CallFire strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or off-line transaction with any of these third parties.
CallFire consents to links to the CallFire Site which conform to the following: the appearance, position, and other aspects of any link to the CallFire Site may neither create the false appearance that an entity or its activities or products are associated with or sponsored by CallFire nor be such as to damage or dilute the goodwill associated with the name and trademarks of CallFire or its affiliates. CallFire reserves the right to revoke this consent to link at any time in its sole discretion, without notice.
You are prohibited from violating or attempting to violate the security of the CallFire Site and Services and from using the CallFire Site and Services to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are 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 CallFire Site or Services, host or network, including, without limitation, via means of submitting a virus to the CallFire Site, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing”; (d) sending unsolicited e-mail, including promotions and/or advertising of products or services; or (e) forging any CallFire 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. CallFire may investigate violations of these Terms, and may involve and cooperate with law enforcement authorities in prosecuting users of the CallFire Site who are involved in such violations.
CallFire 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 CallFire. In addition, CallFire 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.
Choice of Law and Jurisdiction.
These CallFire Terms shall be governed by and construed in accordance with the laws of the State of California notwithstanding its laws governing conflicts of laws. Except as hereinafter provided, any dispute arising under these Terms shall be settled and determined by binding arbitration in Santa Monica, California in accordance with the provisions of the Federal Arbitration Act, 9. U.S.C. §§1-16, as amended (the “Federal Arbitration Act”), to the exclusion of state laws inconsistent therewith. The terms of the Commercial Arbitration Rules of the American Arbitration Association (the “Rules”) then in effect shall apply except to the extent they conflict with the express provisions of this paragraph. A single independent arbitrator shall conduct the arbitration. The parties shall endeavor to select the independent arbitrator by mutual agreement. If such agreement cannot be reached within thirty (30) days after a dispute has arisen which is to be decided by arbitration, the selection of the arbitrator shall be made in accordance with the Rules as then in effect. The arbitrator shall be a member of a state bar engaged in the practice of law in the United States or a retired member of a state or the federal judiciary in the United States. The award of the arbitrator shall be based on the evidence admitted and the substantive law of the State of California (subject to any applicable preemption or supersedence by U.S. federal substantive law) and shall contain an award for each issue and counterclaim. The award shall be made within thirty (30) days following the close of the final hearing and the filing of any post-hearing briefs authorized by the arbitrator, and such award shall set forth in writing the factual findings and legal reasoning for such award. The arbitrator may, in his/her discretion, award to any party specific performance or injunctive relief (the foregoing is not intended to limit CallFire’s access to the courts to the extent provided below). The arbitrator may not change, modify, or alter any express condition, term, or provision of these Terms or the extent the scope of their authority is expressly limited. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding upon the parties and no appeal of any kind may be taken. Judgment may be entered thereon in any court having jurisdiction thereof. Each party shall be entitled to inspect and obtain a copy of non-privileged relevant documents in the possession or control of the other party. All such discovery shall be in accordance with procedures approved by the arbitrator. Unless otherwise provided in the award, each party shall bear its own costs of discovery. The statute of limitations applicable under California law to the commencement of a lawsuit shall apply to the commencement of arbitration hereunder.
Anything in the foregoing paragraph to the contrary notwithstanding, CallFire may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action you take or threaten to take in violation of these Terms.
These Terms are only those stated herein, which shall constitute the complete agreement between the parties. No terms and conditions stated in or attached to your communications to CallFire are applicable to these Terms in any way and are not to be considered your exceptions to the provisions of these Terms.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind CallFire in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, CallFire will be entitled to recover costs and attorneys' fees if it substantially prevails.
All notices required hereunder shall be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. CallFire may give notice to you by means of a general notice on the CallFire Site or Services, electronic mail to your e-mail address on record in CallFire’s account information, or by written communication sent by personal delivery, fax, overnight courier, or certified or registered mail to your address on record in CallFire's account information.