Terms of Service
These Terms of Service (the “Terms”) are entered into
between the customer (“Client”) indicated in the order
form for services (“Services”) and
us, the entity identified in the Order Form as the provider of
services (
referred to as “we,” “us” or
“our” and Client may also be referred to in these Terms
as “you” or “your”). References to Client
includes Client’s employees, contractors, and authorized
users.
To use or receive the Services or upgrade to any Service, you must
agree to these Terms by indicating your agreement via click-through
acceptance or by executing an order for such Service or upgrade
(whether online or in electronic copy, the “Order
Form”). By agreeing to these Terms, you represent that you
have the authority to bind the company you represent.
The Terms consist of two parts: (1) these General Terms of Service,
and (2) the terms specific to a certain Service included in the
Service Specific Addendum attached hereto and incorporated by
reference herein. In the event of a conflict between the Order Form,
these Terms, or the Service Specific Addendum, the parties agree
that solely to the extent of any such conflict, the order of
precedence will be the Order Form, followed by the Service Specific
Terms, followed by these Terms. Where we use the term
“including” in these Terms, it means including without
limitation.
1.
Services.
a.
We will provide the Services indicated in the Order Form according
to the description in the Order Form and the applicable Service
Specific Terms. You
acknowledge that our ability to provide the Services
depends on your full and timely cooperation with us, which
you agree to provide. You will provide us with access to and use
of all information, data, and documentation that we reasonably
require. If requested, you will provide accurate and complete
contact information and promptly inform us of any changes to our
contact information. From time to time, we may make changes to the
Services and reserve the right to modify, features, or components
thereof, or our delivery method. If you are required to install
any scripts on your systems or devices, you are responsible for
maintaining the script and ensuring that the script is
operational. We do not monitor the operation of scripts and are
not responsible for the failure of a script to operate.
b.
From time to time, an original equipment manufacturer
(“OEM”) may make programs available to the OEM’s
certified dealers. Such programs may include Services that we
offer to certified dealers at no cost or at a discount, as
indicated on an Order Form. If you are a certified dealer of an
OEM, and you become eligible for an OEM program, you understand
that the program is directed by the OEM, the OEM determines the
Services to be offered, which dealers are eligible to receive
Services, the duration of any Services, and any other rules or
requirements related to the program. The OEM may change, modify,
or discontinue the program at any time. The OEM may require
dealers to agree to separate terms and conditions related to the
program, or otherwise direct the use of such Services. We are not
responsible for the OEM program, or the content or materials made
available by the OEM. Where the OEM program Services are made
available to you for no cost, we do not make any representations,
warranties, or indemnities with respect to such Services and they
are provided to you “as is” and “with all
faults.”
2.
Restrictions on Use of Services.
Except for your authorized employees or contractors whom you
authorize to access and use the Services on your behalf (each an
“Authorized User”), you will not permit any third-party
to access or use theServices, software, technology, or any other
materials provided to you except as expressly permitted in these
Terms. In addition, you and your users will not, and are prohibited
from: (a) copying, modifying, or creating derivative works or
improvements of theServices; (b) renting, leasing, lending, selling,
sublicensing, assigning, distributing, publishing, transferring, or
otherwise making available anyServices, Our Data (as defined in
Section 3), Third Party Data (as defined in Section 3), or any
software or materials to any third-party, including in connection
with the internet or any
time-share,servicebureau,softwareasaservice, cloud, or other
technology orservice, except as expressly authorized in these Terms;
(c) reverse engineering, disassembling, decompiling, decoding,
adapting, or otherwise attempting to derive or gain access to any
portion of the Services, in whole or in part, in a manner that we
did not authorize; (d) bypassing or breaching any security device or
protection used by the Services or accessing or using the Services
other than by an authorized user through the use of his or her own
then valid access credentials; (e) inputting, uploading,
transmitting, or otherwise providing to or through the Services, any
information or materials that are unlawful or injurious, or contain,
transmit, or activate any harmful code; (f) damaging, destroying,
disrupting, disabling, impairing, interfering with, or otherwise
impeding or harming, in any manner, the Services or the provision of
the Services, in whole or in part; (g) removing, deleting, altering,
or obscuring from the Services any of our trademarks; (h) accessing
or using the Services in any manner or for any purpose that
infringes, misappropriates, or otherwise violates any intellectual
property right, data privacy right, or other right of any third
party (including by any unauthorized access to, misappropriation,
use, alteration, destruction, or disclosure of the data), or that
violates any applicable law; or (i) accessing or using the Services
for purposes of developing a competitive offering. You will not use
the Services in any manner that is or could be construed as obscene,
threatening, abusive, defamatory, libelous, or which encourages
criminal conduct. You are responsible for the conduct of your users
and their use of the Services.
3.
Terms Related to Data.
a.
Data
. As used in these Terms: (i) “Client Data” means the
information that we process on your behalf, any lead information
that you receive from the Services, and information identified as
Client Data in the Service Specific Terms; (ii) “Client
Content” means any copy, creative materials, marketing
materials, or other similar content that you provide to us in
connection with the Services; (iii) “Third Party Data”
means the data either party receives from an original equipment
manufacturer or other third-party for inclusion into or use with
the Services; (iv) “Our Data” means the data that we
collect about your use of the Services, the operation or
functionality of the Services, statistical data, or data that we
provide to you as part of the Services (including data we that we
use or provide as an enhancement to any Third Party Data or Client
Data); and (v) “Consumer Data” means any information
that you collect through the Services, or that we collect on your
behalf, about a consumer.
b.
Data Rights
. You hereby grant to us a limited, non-exclusive right to access,
copy, transmit, download, display, publish, modify, create
derivatives of and otherwise reproduce Client Data, Consumer Data,
and Client Content as necessary to provide, support, and improve
the Services.
We may use aggregated, non-Client identifiable and non- personally
identifiable data regarding the Services for purposes of support
or improving the Services, providing education and consulting
services, aggregated statistical analysis, technical support and
other business purposes. You acknowledge that aggregated data
about your use of the Services or about the operation or function
of the Software and Hosting Services is not Client Data so long as
such aggregated data does not identify you or your Authorized
Users, and is Our IP. With respect to Our Data, we hereby grant to
you a limited, revocable, non-sublicensable, non-transferable,
non-exclusive right to access, copy, transmit, download, display,
and to reproduce Our Data solely as necessary to receive and use
the Services during the Term and for no other purpose. You are
prohibited from disclosing Our Data to any third-party unless we
expressly authorize such disclosure. You acknowledge and agree
that we may share Our Data, including where Our Data identifies
your business and your users, with third parties with whom we both
have a contractual relationship (including original equipment
manufacturers, distributors, and any of their authorized
contractors or agents) and you hereby consent to our disclosure of
Our Data to such third parties. You agree to notify us if you are
no longer an authorized dealer to any manufacturer. We reserve the
right to collect, aggregate and analyze Client Data and Consumer
Data that is generated, contained in, or passes through our
systems for the purposes of providing our clients with analytic,
consulting, and educational services. We further reserve the right
to collect, aggregate, and anonymize any data that is generated,
contained in, or passes through our systems and to use such
anonymized data for any legal purposes.
c.
Client Obligations
. You are solely responsible for Client Data, Consumer Data, and
Client Content. You represent and warrant that (i) Client Data,
Consumer Data, and Client Content will not (1) infringe any
third-party intellectual property right, including third-party
rights in patent, trademark, copyright, or trade secret; or (2)
constitute a breach of any other right of a third-party, including
any right that may exist under contract or tort theories; (ii) you
will comply with all applicable local, state, national, or foreign
laws, rules, regulations, or treaties in connection with the
collection, processing, storing, and sharing of Client Data,
Consumer Data, and Client Content, and with respect to your use of
the Services, including those related to data privacy, data
protection (including the California Consumer Protection Act where
applicable), communications, Telephone Consumer Protection Act
with respect to calling or text messaging any consumer, SPAM laws
(including CAN-SPAM, CASL or others as they relate to emailing
consumers), or the transmission, recording, or storage of
technical data, personal data, or sensitive information. You are
prohibited from using the Services to transmit sensitive
information such as health information. Unless you have purchased
our e-commerce module that includes a third-party credit card
transaction application, the Services are not intended to process
PCI (Payment Card Industry) data, and you are prohibited from
using our Service to process PCI data. You shall notify us if a
consumer has opted out of the sale of their personal information.
You are also responsible for immediately notifying us of any
actual or suspected information security breaches, including
compromised user accounts, including those used for integrations
and secure file transfers. We may require a signed agreement prior
to exporting any Client Data, Client Content, or Consumer Data to
any company we determine to be a competitor.
d.
Company Obligations.
Where the California Consumer Protection Act is applicable,
we will not retain, use, or disclose Client Data or Consumer Data
obtained in the course of providing Services except: (i) to
process or maintain Client Data or Consumer Data on your behalf or
as directed by you, and in compliance with these Terms; (ii) to
retain and employ a Third-Party Service (as defined below); (iii)
for our own use to build or improve the quality of the Services;
(iv) to detect data security incidents or protect against
fraudulent or illegal activity; or (v) as required to comply with
federal, state, or local laws, a court order or subpoena, or to
cooperate with law enforcement agencies or government agency
requests. In the event we receive a request from a consumer to
know or to delete their personal information, we will notify you
and respond to the consumer request.
e.
NOTICE TO DEALER: THESE TERMS RELATE TO THE TRANSFER AND ACCESSING
OF CONFIDENTIAL INFORMATION AND CONSUMER RELATED DATA.
4.
Third-Party Services.
a.
The Services may integrate with or receive information from
third-party sources, services, software, applications, platforms
(“Third-Party Service”). A Third-Party Service may
make changes to its service, or components thereof, or suspend or
discontinue its service with or without notice. The availability
of the Third-Party Service may depend on your compliance with the
Third-Party Service terms. The Third-Party Service may have access
to Client Data, Client Content, or Consumer Data. We do not
monitor or review the practices of any Third-Party Service and are
not responsible for how the Third-Party Service provides its
service or for how it transmits, accesses, processes, stores,
uses, shares, or provides data. We expressly disclaim all
liability related to or arising from any Third-Party Service,
including liability related to or arising from any updates,
modifications, outages, delivery failures, corruption of data,
loss of data, use of data, security, discontinuance of services,
or termination of the Third-Party Service. You are solely
responsible for ensuring that you comply with all Third-Party
Service terms and conditions.
b.
If the Order indicates that you purchased Podium products, this
Section 4(a) applies to such purchases. Podium products are
provided to you by Podium Inc. (“Podium”). As a
reseller of such products, we provide support and billing
services. You agree that these Terms do not apply to the Podium
products but rather the Podium terms available at
https://www.podium.com/terms-and-conditions/
(“End User Terms”), and any updates thereto (of
which Podium will notify you), govern your use of the Podium
products. You agree that upon your execution of an Order
purchasing Podium products, End User Terms are entered into
directly between you and Podium. You understand and acknowledge,
we are not a party to the Podium End User Terms. You represent and
warrant that your present and future use of the Podium products
shall be in compliance with the Telephone Consumer Protection Act
(“TCPA”), as defined under 47 U.S.C.§ 2227. You
agree that, in the event of a breach of the End User Terms, you
will seek remedies directly from Podium, Inc. and you hereby waive
and release us from any liability or breach arising out of the
Podium products, the End User Terms, or violations of the
TCPA.
5.
Fees & Payment Terms
. You will pay the fees for the Services in the amounts and at the
times specified in the Order Form. All fees will be paid in USD
unless otherwise specified in the Order Form. Unless otherwise
specified in the Order Form, fees are due 30 days from the date of
invoice. If you fail to make any payment when due, we may charge
interest on past due amounts at the rate of 1.5% per monthcalculated
daily and compounded monthly or, if lower, the highest rate
permitted under applicable law. You will reimburse us all costs that
we incur in collecting any late payments, including attorneys’
fees, court costs, and collection agency fees. We may increase the
fees for any Service no more frequently than once during any
12-month period, or any time upon renewal. You acknowledge and agree
that notices of price increases may be included in or accompany
Client’s invoices.
a.
Billing Cycles.
We will invoice you according to the terms set forth in the Order
Form. Depending on the Service, billing will either begin on the
Effective Date or on the Activation Date. The “Effective
Date” with respect to any Order Form is the date the Order
Form is executed by Client and the “Activation Date”
for each Service is defined in the Order Form. If the Order Form
indicates that Services are billed monthly, you will pay for the
Services on a monthly basis beginning on either the Activation
Date or the Effective Date, as indicated in the Order Form, for
the full month of fees (i.e. fees are not prorated); provided
that, if a free-month(s) promotion applies to any Service that is
invoiced on a monthly billing cycle, we will bill you for the
first month of Service on the Effective Date and begin monthly
billing following the expiration of the promotion period.
b.
Promotions.
As part of a promotion, we may offer the Services to you for
no-charge for a specific period, for a percent discount, or other
promotion as indicated in the Order Form. Unless otherwise agreed
to in the Order Form, promotions expire (i) at the end of the
Initial Term for promotions that are percentage discounts; (ii)
after the number of promotional months indicated in the Order
Form; or (iii) in all other cases at the end of the Initial Term.
For promotions that include promotional months, the Initial Term
will be extended by the number of promotional months indicated in
the Order Form.
c.
Digital Marketing Service Billing
. If you purchase Digital Marketing Services, additional terms
related to billing are specified in the Service Specific Terms for
Marketing Services.
d.
ACH; Credit Cards
.If you provide us with a credit card number or other electronic
method of payment, you authorize us to charge your method of
payment for the amount specified in the Order Form at the times
indicated in the Order Form, and for any overages incurred. If the
Order Form indicates that you will pay the fees over a recurring
period, you authorize us to charge your card for such recurring
fees as they become due.
e.
Overages.
Certain Services may be invoiced based on your consumption,
upon the use of the Service, or use of the Service on additional
computers at one or multiple physical locations and, in such case,
when your consumption or use exceeds the agreed to limitations, an
overage will apply. You will pay such overage upon receipt of
invoice. If you provide us with a credit card, you authorize us to
charge your credit card for any such overages when they are
incurred or on your next billing cycle, at our discretion.
f.
Taxes.
All fees and other amounts payable under these Terms are
exclusive of taxes or similar assessments. Without limiting the
foregoing, you are responsible for all sales, use, excise taxes,
or any other similar taxes, duties, and charges of any kind
imposed by any federal, state, or local governmental or regulatory
authority on any amounts payable by you hereunder, other than any
taxes imposed on our income.
6.
Term & Termination
.
a.
Term.
The term will commence on the Effective Date and it will continue
for the period specified in the Order Form (including any
promotional period, where applicable) (the “Initial
Term” or “Term”).
b.
Termination.
We may terminate these Terms, and the Services if (i) you fail to
pay any amount when due and such failure continues for 30 days
following our written notice thereof; or (ii) you are in breach of
these Terms and such failure continues for 30 days following our
written notice thereof. You may terminate these Terms, and the
Services (iii) if we are in material breach of any material term
and such failure continues for 30 days following your written
notice thereof; or (iv) any Renewal Term by providing at least 30
days’ written notice prior to the Renewal Term. Either party
may terminate these Terms, effective immediately upon written
notice to the other party, if the other party: (v) becomes
insolvent or is generally unable to pay, or fails to pay, its
debts as they become due; (vi) files, or has filed against
it,apetition for voluntary or involuntary bankruptcy or otherwise
becomes subject, voluntarily or involuntarily, to any proceeding
under any domestic or foreign bankruptcy or insolvency law; (vii)
makes or seeks to makeageneral assignment for the benefit of its
creditors; or (viii) applies for or has appointeda receiver,
trustee, custodian, or similar agent appointed by order of any
court of competent jurisdiction to take charge of or sell any
material portion of its property or business.
c.
Authorized Dealer Status.
Our ability to provide information, data or certain Services may
depend on your status as an authorized dealer of a manufacturer
pursuant to our contractual relationship with the manufacturer. We
reserve the right to terminate the Services (including portions
thereof) or these Terms if (a) you cease to be an authorized
dealer of such manufacturer and such manufacturer requires that
you be an authorized dealer in order to access or receive the
Services; (b) or where our contract with such manufacturer is
terminated.
d.
Suspension of Service.
We may suspend, terminate, or otherwise deny your access or your
user’s access to all or any part of theServices if: (i) we
believe that you or a user is in breach of these Terms, if you or
a user has accessed or used theServicesbeyond the scope of the
rights granted, or forapurpose not authorized pursuant to these
Terms; (ii) if you or your users are engaged in any activity that
appears to be fraudulent, misleading, or unlawful relating to or
in connection with your use of theServices; or (iii) if you have
not paid any fees due hereunder when due. This Section does not
limit any of our other rights or remedies, whether at law or in
equity.
e.
Effect of Termination.
Upon any expiration or termination of these Terms, except as
expressly otherwise provided in these Terms: (i) all rights,
licenses, consents, and authorizations granted by either party to
the other hereunder will immediately terminate; (ii) you will
discontinue all use of anyServices, Our Data, or other materials
that we provided to you, you will remove any software or scripts
that we provide you from your systems, and we will disable access
to any online Services; (iii) in the case of our termination for
your breach of these Terms, any fees outstanding for the remaining
Term will become immediately due and payable. In no event will we
issue any refund of fees.
7.
Intellectual Property Ownership
. As between us, all right, title and interest in and to the
Services, Our Data, any templates we provide to you, the information
technology infrastructure including the software, hardware,
databases, electronic systems, networks, and all applications, APIs,
scripts or Client-Side Software required to deliver the Services, or
that we otherwise make available to you, including all documentation
regarding the use or operation of the Services or any materials
referred to as our intellectual property in the Services Specific
Terms (collectively “Intellectual Property”) are our
sole and exclusive property. Except as expressly stated herein,
nothing in these Terms will serve to transfer to you any right in or
to the Intellectual Property. We retain all right, title and
interest in and to Intellectual Property.
8.
Confidential Information
. The term “Confidential Information” means (a) the
non-public information of either party, including but not limited to
information relating to either party’s product plans, present
or future developments, customers, designs, costs, prices, finances,
marketing plans, business opportunities, software, software manuals,
personnel, research, development or know-how; (b) any information
designated by either party as “confidential” or
“proprietary” or which, under the circumstances taken as
a whole, would reasonably be deemed to be confidential; or (c) in
the case of Client, Client Data, Consumer Data, and, in our case,
Our Data and Third-Party Data. Except for Our Data which shall
always be Confidential Information, “Confidential
Information” does not include information that: (i) is in, or
enters, the public domain without breach of this these Terms; (ii)
the receiving party lawfully receives from a third-party without
restriction on disclosure and without breach of a nondisclosure
obligation; (iii) the receiving party knew prior to receiving such
information from the disclosing party, as evidenced the receiving
party’s records; (iv) the receiving party developed
independently without reference to the Confidential Information; or
(v) information that a party is expressly permitted to disclose
pursuant to these Terms. Each party agrees that (a) it will not
disclose to any third-party, or use for the benefit of any
third-party, any Confidential Information disclosed to it by the
other party except as expressly permitted hereunder; and (b) that it
will use at least reasonable measures to maintain the
confidentiality of Confidential Information of the other party in
its possession or control but no less than the measures it uses to
protect its own confidential information of a similar nature. Either
party may disclose Confidential Information of the other party (a)
pursuant to the order or requirement of a court, administrative or
regulatory agency, or other governmental body; provided, that, the
receiving party, if feasible and/or legally permitted to do so,
gives reasonable notice to the disclosing party to allow the
disclosing party to contest such order or requirement; or (b) to the
parties’ agents, representatives, subcontractors or service
providers who have a need to know such information; provided that,
such party shall be under obligations of confidentiality at least as
restrictive as those contained in this Section. Each party will
promptly notify the other party in writing upon becoming aware of
any unauthorized use or disclosure of the other party’s
Confidential Information. Each party acknowledges and agrees that a
breach of the obligations of this Section may result in irreparable
injury to the disclosing party for which there may be no adequate
remedy at law, and the disclosing party will be entitled to seek
equitable relief, including injunction and specific performance, in
the event of any breach or threatened breach or intended breach by
the recipient of Confidential Information.
9.
Review of Use
. If Client’s usage of a Service exceeds the number of
licenses or the scope of license purchased, Client will promptly pay
us for actual usage based on our then-current list price. With prior
written notice, we may ourselves or through an independent auditor,
review Client’s Service usage and related records during your
normal business hours to confirm compliance with these Terms (a
“Review”). You will provide us or the auditor with
access to the relevant records and facilities for the Review. We
will treat all information disclosed during the Review as
confidential information and will only use or disclose such
information as required by law or to enforce our rights under these
Terms.
10.
Early Access Use and Suggestions
.
a.
Early Access Program
. We may offer pre-release feature or functionality capabilities
for experimental testing and evaluation (“Early Access
Program” or “EAP”). If Client chooses to
participate in the Early Access Program, and we authorize Client
to participate in such EAP, we grant to you a temporary,
nontransferable, nonexclusive license for experimental use to
access, test, and evaluate pre-release feature or functionality
capabilities. The restrictions set out in Section 2 apply to
pre-release features or functionality. You will evaluate
pre-release capabilities under normal conditions as directed by
us. You acknowledge the experimental nature of pre-release
capabilities and agree not to rely on correct functioning or
performance of pre-release capabilities. You further acknowledge
that pre-release capabilities have not undergone full testing by
use and may contain defects. We shall not be liable for
Client’s use of pre-release capabilities. You are advised to
safeguard important data and use caution. You agree to maintain
pre-release capabilities in confidence and to restrict access to
pre-release capabilities, including any functionality, methods and
concepts, solely to those employees authorized to perform
pre-release capability testing. Any written evaluations and all
inventions, product improvements, modifications or developments
that we conceived or made during or after these Terms, including
those based partly or wholly on your feedback, are our exclusive
property, and we have exclusive rights, title and interest in all
such property.
b.
Client Suggestions
. You may choose to, but are not required to, provide suggestions,
data, or other information to us regarding possible improvements
in the operation, functionality, or use of the Service, whether in
the course of using the Service, evaluating the Service or
otherwise, and any resulting inventions, product improvements,
modifications or developments made by us, at our sole discretion,
will be our exclusive property.
11.
Indemnity
. You will defend, indemnify, and hold us, our affiliates and each
of our and our affiliate’s officers, directors, employees,
agents, successors, and assigns harmless from and against any and
all damages, losses, costs or expenses (including reasonable legal
fees) that we incur that results or arises from, or are alleged to
result or arise from: (a) Client’s breach of these Terms; (b)
Client’s use of the Service in a manner that violates
applicable law, including laws that apply to marketing or
advertising, consumer warranties, privacy, consumer data, or
consumer credit; (c) Client’s breach of any term or condition
required by an original equipment manufacturer or Client’s
failure to be an authorized dealer of any original equipment
manufacturer; (d) any materials or information (including any
documents, data, specifications, software, content, or technology)
provided by or on behalf of Client, or the customization of any
Services in accordance with any specifications or directions
provided by or on behalf of Client; (e) any Third-Party Service or
any claim that arising from third-party data; or (f) Client’s
negligent, willful, fraudulent or intentional acts or omissions. As
used in this Section, references to Client include Client’s
employees or users of the Services.
12.
Limitation of Liability
. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THESE TERMSFOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE
DAMAGES. IN NO EVENT WILL OUR AGGREGATE LIABILITY, OR THE AGGREGATE
LIABILITY OF OUR AFFILIATES, LICENSORS, SERVICE PROVIDERS, ORIGINAL
EQUIPMENT MANUFACTURES, OR SUPPLIERS, WHETHER RELATED TO BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY
OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL FEES PAID BY
CLIENT UNDER THESE TERMS IN THE TWELVE-MONTH PERIOD PRECEDING THE
EVENT GIVING RISE TO THE CLAIM.
WE MAKE NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SERVICES,
WHETHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIM ALL WARRANTIES,
INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT. THE SERVICES ARE PROVIDED “AS IS” AND
WITH ALL FAULTS. WE SPECIFICALLY DISCLAIM LIABILITY FOR (A) ANY LOSS
OF USE OF TECHNOLOGY, LOSS AND CORRUPTION OF DATA, OR ANY COSTS
ASSOCIATED WITH SYSTEM OR DATA RECOVERY; (B) ANY LIABILITY RESULTING
FROM ERRORS IN INSTRUCTIONS, SERVICE BULLETINS, DIAGRAMS,
SPECIFICATIONS, PARTS IDENTIFICATION, OR PARTS DESCRIPTIONS; (C) ANY
THIRD PARTY CLAIMS; (D) DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR
OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC
COMMUNICATIONS, OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL; OR
(E) ANY LIABILITY ARISING FROM YOU OR YOUR USERS USE OF THE SERVICES
IN VIOLATION OF LAW OR THESE TERMS.
13.
Governing Law.
These Terms will be governed by and construed in accordance
with the substantive laws of the State of Oregon without giving
effect to any choice of law rules that may require the application
of the laws of another jurisdiction. The UN Convention on contracts
for the International Sale of Goods and the Uniform Computer
Transactions Act shall not apply to transactions under these
Terms.
14.
Relationship of the Parties.
The relationship between the parties is that of independent
contractors. Nothing contained in these Terms shall be construed as
creating any agency, partnership, joint venture, or other form of
joint enterprise, employment, or fiduciary relationship between the
parties, and neither party shall have authority to contract for or
bind the other party in any manner.
15.
Disputes.
Any controversy or claim arising out of or relating to these
Terms, or the breach thereof, will be determined by final and
bindingarbitrationadministered by the AmericanArbitrationAssociation
(“AAA”) under its CommercialArbitrationRules and
Mediation Procedures (“Commercial Rules”).
T
he award rendered by thearbitrator shall be final, non-reviewable,
non-appealable and binding on the parties and may be entered and
enforced in any court having jurisdiction. The place
ofarbitrationshall be Multnomah County, Portland Oregon. Except as
may be required by law, neither a party nor thearbitrators may
disclose the existence, content or results of anyarbitrationwithout
the prior written consent of both parties, unless to protect or
pursue a legal right. For disputes where the amount at issue is less
than $100,000, there will be onearbitratoragreed to by the parties
within twenty (20) days of receipt by respondents of the request
forarbitration,or, in default thereof, appointed by the AAA in
accordance with its Commercial Rules. For disputes where the amount
at issue is greater than $100,000, there will be threearbitrators
agreed to by the parties within thirty (30) days of receipt by
respondents of the request forarbitrationor, in default of such
agreement, by the AAA. Each party irrevocably and unconditionally
waives any right it may have to a trial by jury in respect of any
legal action arising out of or relating to these Terms or the
transactions contemplated hereby.
16.
Severability; No Waiver.
If any term or provision of these Terms is invalid, illegal, or
unenforceable in any jurisdiction, such invalidity, illegality, or
unenforceability shall not affect any other term or provision of
these Terms or invalidate or render unenforceable such term or
provision in any other jurisdiction. No waiver by any party of any
of the provisions hereof shall be effective unless explicitly set
forth in writing and signed by the party so waiving. Except as
otherwise set forth in these Terms, no failure to exercise, or delay
in exercising, any rights, remedy, power, or privilege arising from
these Terms will operate or be construed as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power, or
privilege hereunder preclude any other or further exercise thereof
or the exercise of any other right, remedy, power, or
privilege.
17.
Assignment.
Client will not assign, delegate, or otherwise transfer any of its
obligations or performance under these Terms, in each case whether
voluntarily, involuntarily, by operation of law, or otherwise,
without our prior written consent, which consent shall not be
unreasonably withheld, conditioned, or delayed, except that Client
may transfer its rights and obligations under these Terms in
connection with a merger, consolidation, or reorganization of
Client. No assignment, delegation, or transfer will relieve Client
of any of its obligations or performance under these Terms. We may
assign, delegate or otherwise transfer our rights, obligations or
performance under these Terms with or without consent. Any other
purported assignment, delegation, or transfer in violation of this
Section is void.
18.
Modifications
. We may make modifications or changes to these Terms. If we make a
modification that we deem material, we will provide notice to you
(email notice being sufficient) which will be effective 30 days
following our notice of the modification and, if you do not agree to
the modified terms, you may object to the modification by providing
us with notification of your objection (in reasonable detail) during
such 30-day notice period. Upon receipt of your objection, we may
choose to modify the Terms that apply to you such that they resolve
your objection, or we may enter into good faith negotiations
regarding your objection in an attempt to resolve your objection. If
you fail to provide us with notice of your objection within such
period, you will be deemed to have accepted these Terms as modified.
We may make non-material changes to these Terms by posting the
revised version at the URL where these Terms are available.
19.
No Third-Party Beneficiaries.
These Terms are entered into for the sole benefit of the parties
hereto and their respective successors and permitted assigns and
nothing herein, express or implied, is intended to or will confer
upon any third party any legal or equitable right, benefit, or
remedy of any nature or by reason of these Terms.
20.
Force Majeure
. In no event will either party be liable or responsible to the
other party, or be deemed to have defaulted under or breached these
Terms, for any failure or delay in fulfilling or performing under
these Terms, (except for any obligation to make payments), when and
to the extent such failure or delay is caused by any circumstances
that constitute acts of God, flood, fire, earthquake or explosion,
war, terrorism, invasion, riot or other civil unrest, embargoes or
blockades, national or regional emergency, strikes, labor stoppages
or slowdowns or other industrial disturbances, passage of law or any
action taken by a governmental or public authority, or national or
regional shortage of adequate power or telecommunications or
transportation (collectively, a “Force Majeure
Event”).
21.
Language.
The parties have required that these Terms and notices
relating hereto be drawn up in the English language.
Les parties aux présentes ont exigé que la
présente EULA et tous les avis y afférant soit
rédigés en langue anglaise.
22.
Notice.
Any notice request, consent, claim, demand, waiver, or other
communications under these Terms intended to have legal effect, must
be delivered (a) in the case of Client, in writing addressed to
Client’s address or email address in the Order Form, or in our
case, to Legal@Leadventure.com or
26600 SW Parkway Ave #400, Wilsonville, OR 97070, and
in each case, notice will be deemed effectively given when (i)
received if sent by a nationally recognized overnight courier where
signature is required; or (ii) if provided to Client, notice may be
provided via email to the Client contact in the Order Form with
confirmation of transmission and deemed effectively given if sent
during the Client’s normal business hours, and on the next
business day, if sent after normal business hours.
23.
Entire Agreement.
These Terms together with the Order Form, the applicable Service
Specific Terms Addendum and any other documents expressly
incorporated into these Terms constitutes the entireagreementof the
parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous understandings,agreements,
representations, and warranties, both written and oral, with respect
to such subject matter.
SERVICE SPECIFIC TERMS ADDENDUM
Website Terms
1. Website Services. The Services, for the purpose
of these Website Service Specific Terms, means the delivery of a
website (“Website”) and related services, including (if
applicable) website hosting and email hosting services, customer
review capturing tool, and in each case as described in the Order
Form.
Acceptance of the Website will be deemed to be the earlier of the
date that we publish the Website the site or 45 days from the
Effective Date.
We may obtain website hosting services on your behalf and such
hosting services are provided by Third Party Providers to us
pursuant to their terms.
2. Data. In addition to the definition of data in
the Terms, the following definitions include: (a) Client Data
includes information (including payment information) you send or
receive from the Website or email hosting services (if included);
and (b) Client Content includes your logo, images, pictures,
advertisements, and text (to the extent the foregoing do not
constitute our templates).
3. Consumer Data. You represent and warrant that
you will collect Consumer Data in accordance with all applicable
laws, including the Fair Credit Reporting Act, the rules and
regulations promulgated by the Federal Trade Commission on unfair or
deceptive practices, the rules and regulations promulgated by the
Consumer Financial Protection Bureau including Truth in Advertising
rules and Regulation Z, and any other applicable consumer data
protection of financial protection laws. You are solely responsible
for ensuring that the Consumer Data you collect is collected,
processed, stored, used, and shared in accordance with applicable
law. You are solely responsible for ensuring the integrity and
security of Consumer Data.
4. Ownership; Templates. We create or license the
Website template, including all images, fonts, graphics, or other
creative content, that we provide you and these materials are
included in the definition of Intellectual Property. We grant you
the limited license to publish, display and access and use
Intellectual Property during the Term. You are prohibited from
copying, publishing, displaying or otherwise exploiting Intellectual
Property (including sharing such materials to a competitor of ours
or directing a competitor to use such materials on your behalf). In
addition, we may offer you a template form to collect Consumer Data
or template policies, including template disclosures, consents, or
policies. We do not and cannot provide legal advice. We do not
review your practices or policies and do not represent, warrant, or
guarantee that the use of our templates is legally sufficient or
ensures legal compliance. We are under no obligation to, and do not,
monitor the consumer credit or data privacy laws that may apply to
your business. You are responsible for ensuring that any use of the
template form (including any consent) is accurate and that it meets
and complies with all applicable legal requirements.
5. Restrictions. In addition to the restrictions in
the Terms, you acknowledge and agree that you may not use our
servers as a source, intermediary, reply to address, or destination
address for mail bombs, Internet packet flooding, packet corruption,
denial of service, or other abusive activities that threaten the
stability of our network or damage the systems of, or cause a
disruption of Internet services. Use of your Website as an anonymous
gateway is prohibited. You are solely responsible for maintaining an
independent backup copy of your Website and Client Content. You are
prohibited from using the Services to disseminate or transmit
unsolicited messages, unsolicited commercial email, or unreasonably
large volumes of email.
6. YouTube Services. If your Website uses YouTube
to upload and post videos, by using the YouTube services you agree
to be bound by the YouTube Terms of Service available at
https://www.youtube.com/t/terms
.
You are solely responsible for ensuring that you comply with the
YouTube Terms of Service.
7. Indemnification. You represent and warrant that
you own the right, title, and interest to your Client Content,
including the right to publish, reproduce, distribute, and license.
You acknowledge and agree to indemnify and defend us from any claim,
suit, or proceeding brought against us regarding any and all claims,
damages, liabilities, losses, suits, legal action, investigations,
and threats of same concerning the alleged or actual infringement of
any Client Content you provide or approve for use in the
Website.
8. Privacy Policy. Cookies may be used to
personalize the experience of visitors to your Website. You
represent and warrant that you will have posted on your Website a
privacy policy which clearly and conspicuously discloses the use of
such cookies, and you have obtained all required consents and
authorization from your Website visitors relating to use of such
cookies.
9. Digital Accessibility. You acknowledge that you
are required to comply with the Americans with Disabilities Act
(“ADA”) and any applicable state, county, or
municipality laws relating to accessibility for persons with
disabilities to places of public accommodation, any regulations or
guidelines promulgated pursuant to those laws, or any other
applicable disability access statutes, regulations, guidance, or
other legal requirements ("Access Laws") with respect to
the accessibility of the Website. The "Digital Accessibility
Service" is provided by a third party.
a.
Third Party Terms
. The "Digital Accessibility Service" is provided by a
third party. By agreeing to these Terms you are also agreeing to
the third party provider's terms of use, a copy of which is
available at
www.leadventure.com/tos/thirdpartyservices
.
b.
Authorized Use
. You and your Authorized Users may access and use the Digital
Accessibility Service, subject to any limitations set forth in the
applicable Order Form and the provider's terms of use, solely
for your business purposes.
c.
Use Restrictions and Obligations
. You are responsible for maintaining the security and
confidentiality of any user accounts granted to you. You may not:
(i) remove, delete, add to, alter, or obscure any warranties,
disclaimers, copyright, trademark, patent, or other intellectual
property, proprietary rights or other notices, marks, or symbols
that appear on or in connection with the Digital Accessibility
Service; (ii) circumvent or otherwise interfere with any user
authentication or security of the Digital Accessibility Service.
If you become aware of any actual or threatened activity
prohibited by this Section __, you agree to provide email notice
to us of such activity or threatened activity and promptly take
all action reasonable and lawful measures within your control that
are necessary to stop the activity or threatened activity and to
mitigate its effects.
d.
Suspension or Termination
. You acknowledge and agree that the third party service provider
may suspend, terminate, or otherwise deny our, your, or your
Authorized Users access to or use of all or any part of the
Digital Accessibility Service upon written notice, if the third
party service provider receives a judicial or other governmental
demand or order, subpoena, or law enforcement request that
expressly or by reasonable implication requires the third party
service provider to do so.
e.
WCAG
. The Web Content Accessibility Guidelines ("WCAG") are
guidelines published by the Web Accessibility Initiative of the
World Wide Web Consortium. You understand that the WCAG guidelines
are developed by a third party and are not a law, regulation, nor
provide a legal safe harbor. You understand that following WCAG
does not guarantee compliance with the Access Laws.
f.
Service Disclaimer
. You acknowledge and agree that the Digital Accessibility Service
is provided by a third party service provider. The Digital
Accessibility Service is designed to improve accessibility of
websites but does not assure or guarantee compliance with Access
Laws. Compliance with Access Laws is a complex issue and even an
accessible website may receive a demand letter or lawsuit. We make
no representations or warranties that the Digital Accessibility
Service is compliant with any particular law, regulation,
guidance, or standard, including without limitation the Access
Laws and WCAG, and we, to the maximum extent permitted by law,
disclaim any and all liability associated with any such
claim.
g.
General Disclaimer
. If you choose not to purchase the Digital Accessibility Service,
you understand and agree that you expressly assume all risks and
all liability arising from or related to your Website's
accessibility in conformance with WCAG, or compliance with the
ADA, or any other Access Laws.
Marketing & Listing Services Terms
1. Marketing Services. Marketing Services may
include any one or all of the following: search engine optimization,
search engine marketing, marketing automation, social media
management (defined below), reputation management (defined below),
or other marketing services as described in the Order Form
(“Marketing Services”). The Services may also include
“Listing Services” which mean the listing of inventory,
parts, or accessories on various third-party websites (such as
E-Bay, Craigslist, or other ecommerce sites). As part of the
Marketing Services, we may create or provide you with SEO strategies
(including specific words) and creative materials that we develop or
create as a result of our expertise. Any SEO strategy, words, or
other creative material that we create or develop are our
Intellectual Property and we provide you the limited right to use
our Intellectual Property during the Term and solely in connection
with our provision of, and your receipt of, the Marketing Services.
Following the termination or expiration of the Marketing Services,
you will remove all Intellectual Property that we provided to you
from your websites or social media sites.
2.
Marketing Spend and Management Fees; Billing; Budgets; Credits
. The Marketing Services fees include “Marketing Spend,”
“Management Fees,” and may include a one-time
nonrefundable setup fee. Management Fees are the recurring monthly
fees that are fixed and committed spend during the Term. Management
Fees are not cancelable or refundable. Marketing Spend is the fee
for marketing activities for advertising placement the applicable
third-party platform (e.g. Google, Facebook) based on a monthly
budget which you set. The Marketing Spend also includes our margin
of up to 30%. If your desired results require additional spend, or
we incur an overage in excess of the Budgeted amount, we will notify
you that the Budget needs to be increased and, you will pay such
additional amounts promptly. If we do not spend Budget during the
Term, we will credit such amount to your next invoice unless the
credit amount is de minimis (as determined by us in our sole
discretion) and in which case we will not credit any amounts. In no
event will we refund any amounts to you.
3. Pausing Your Marketing Campaigns; Termination.
Except for Clients under monthly contracts, at any time during the
Term, so long as we have not made purchases on your behalf, you may
suspend any Marketing Spend temporarily. You understand that
suspending the Marketing Spend does not suspend your obligation to
pay the Management Fees and we will continue to invoice and you will
pay the Management Fees during the Term notwithstanding any
suspension of Marketing Spend. Notwithstanding Section 6(b)(iv) of
the Terms, for monthly contracts, Client may terminate any Renewal
Term with 15 days written notice prior to the Renewal Term.
4. SharpShooter Program Subscription; Fees; Billing
. If the Order Form includes a SharpShooter Program Subscription
(the “SSPS”), the Marketing Services included in your
SSPS will be provided based on the schedule of events outlined in
the Order Form. In the event you need to change the date of any
events included in the schedule of events outlined in the Order
Form, you must provide us with notice not less than thirty (30) days
prior to the scheduled date. The SSPS fees are recurring monthly
fees that are fixed and committed spend during the Term. If for any
reason you do not hold, reschedule, or replace the events outlined
in the Order Form as part of the SSPS during the Term, we will not
credit, refund, or carryover any amounts that go unused during the
Term. SSPS fees are not cancelable or refundable.
5. Client Obligations. In order for us to perform
the Marketing Services, you must (a) provide us with access to
applicable accounts (like Google Analytics or Facebook); (b) install
and maintain a pixel or script to allow us to track traffic; and (c)
assist us with the development of keywords.
6. Reporting. We will provide you with reporting
regarding the activities performed and the results of such
activities. You u
nderstand that the performance of the Marketing Services may take
time to see results or may change or fluctuate over time due to
changes in search engine algorithms, site rankings, competition
for key words, policies of the search engine platform or third
party platform, changes in
indexed directories, or other changes or factors
. Therefore, we do not guarantee that the Marketing Services will
achieve any specific result or any result within a specific
timeframe or campaign. If you change your website, the changes may
impact the Marketing Services.
7
.
Social Media Management. The “Social
Media Management” Services include curated content
postings, optimized social media pages, and posting of select
manufacturer’s promotions through the Client’s
Facebook and Twitter accounts, as applicable. The complete list
of Social Media Management Services is defined in the Social
Media Management product sheet, incorporated in these Terms by
reference. Social Media Management Tier 1 Services include
management of one (a) Facebook business page for one Client
location, one (b) Google My Business listing for Google posts
for one Client location, and one (c) Twitter account for one
Client location, if applicable. Social Media Management Tier 2
Services including management of one (d) Facebook business page.
Additional Client locations may be added for an additional fee.
Client must grant administrative level access to the
Client's Facebook business page to start the Social Media
Management Tier 1 or Tier 2 Services. In the event
administrative access cannot be granted to us or logins cannot
be provided, we will create a new Twitter account and/or
Facebook account on Client's behalf. Except for
"liking" or "sharing" posts through the
customary methods on a social media site, Client may not copy,
reproduce, display, use or repost any content in any manner or
in any media without our prior written consent, including
reproducing content from one Client location's Facebook page
or Twitter account to any other Facebook page or Twitter account
not covered by these Terms.
8. Reputation Management. The “Reputation
Management” Services may include: (a) the ability to build,
enhance, control and track business listings on multiple local
search and business directory websites and mobile applications; (b)
requesting, managing, and/or responding to customer reviews; (c) a
review management dashboard; and (d) integration with dealer’s
Dealer Management System (DMS) to provide daily automated review
requests to customers who had a transaction the previous day. The
Reputation Management Services may utilize email and text and are
subject to the Messaging and Email Services team included below.
Client may not copy, reproduce, display, use, or repost any content
in any manner or in any media without our prior written
consent.
Client must grant administrative level access to the Client's
Facebook and Google accounts to start the Reputation Management
Services.
If reviews are being posted via Facebook or Twitter review
services, additional terms from Facebook or Twitter may apply and
Client agrees to comply with such terms.
9.
Online Vehicle Exchange, LLC (OVE) Fees. If
Listing Services includes OVE, you will be responsible for any
fees associated with your sales activities through OVE. OVE assess
a $500 fee for any vehicle sold that is unavailable. You are
responsible for maintaining accurate data on OVE and promptly
deleting all sold inventory.
Data Services
1. Data Services. Data Services may include Third
Party Data, in the form of digitized original automobile window
stickers.
2. Acceptable Use. You may only use the Data
Services and Third Party Data to provide to consumers in connection
with the sales and advertising of vehicles and to enhance vehicle
data, either by including the Third Party Data on a website to
describe a vehicle or as a window sticker on a vehicle. You may not
sell, distribute, or alter the Third Party Data or Data Services.
3. Warranty Disclaimer. THE DATA SERVICES ARE
LICENSED “AS IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS
OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF
MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. We do not warrant that
the Data Services will meet your requirements, that operation will
be uninterrupted or error free, or that the Third Party Data will
contain correct, accurate, or complete data.
Messaging and Email Services
1.
Messaging and Email Services.
For purposes of these Service Specific Terms,
“Messaging Services” means any message sent via
SMS, MMS, Chat, and WhatsApp messaging channels in connection with
the Services indicated in an Order Form.
“Email Services” means any email sent via the Services
indicated in an Order Form.
2.
Third Party Services
. We use third-party services in order to provide Messaging Services
and Email Services. If the Order indicates that you purchased
Messaging Services or Email Services, the following terms apply to
such purchase:
a)
No Inappropriate Content or Users.
Do not use the Messaging Services or Email Services to transmit or
store any content or communications (commercial or otherwise) that
is illegal, harmful, unwanted, inappropriate, objectionable,
confirmed to be criminal misinformation, or otherwise poses a
threat to the public. This prohibition includes use of the
Messaging Services or Email Services by a hate group or content or
communications that originate from a hate group or are exploitive,
abusive, or hate speech.
b)
Prohibited Activities.
Do not use the Messaging Services or Email Services to send any
content, engage in or encourage any activity that is illegal,
deceptive, harmful, unwanted, inappropriate, objectionable,
criminal, violating others’ rights, poses a threat to the
public, or harmful to our business operations or reputation,
including:
i)
Violating laws, regulations, governmental orders, or industry
standards or guidance in any applicable jurisdiction
(collectively, “Applicable Laws”). This
includes violating Applicable Laws requiring (a) consent be
obtained prior to transmitting, recording, collecting, or
monitoring data or communications, (b) compliance with opt-out
requests for any data or communications, or (c) anything illegal
in the jurisdiction where the message recipient lives. Examples
include messages related to the marketing or sale of a cannabis
product or offers for prescription medication that cannot
legally be sold over-the-counter in the U.S.A.
ii)
Interfering with or otherwise negatively impacting any aspect of
the Messaging Services, Email Services, or any third-party
networks that are linked to the Messaging Services or Email
Services.
iii)
Reverse engineering, copying, disassembling, or decompiling the
Messaging Services or Email Services.
iv)
Creating a false identity or any attempt to mislead others as to
the identity of the sender or the origin of any data or
communications.
v)
Hate speech, harassment, exploitative, abusive, or any
communication that originate from a hate group.
vi)
Fraudulent messages, including misinformation about products
claiming to prevent, treat, or cure health issues that have not
been approved by the applicable government authority.
vii)
Escort services, mail-order spouse finders, international
marriage brokers, and other similar sites and services.
viii)
Malicious content, such as malware or viruses
ix)
Any content that is designed to intentionally evade filters
c)
No Service Integrity Violations.
Do not violate the integrity of the Messaging Services or
Email Services, including:
i)
Attempting to bypass, exploit, defeat, or disable limitations or
restrictions placed on the Messaging Services or Email Services.
ii)
Finding security vulnerabilities to exploit the Messaging
Services or Email Services or attempting to bypass any security
mechanism or filtering capabilities.
iii)
Any denial of service (DoS) attack on the Messaging Services or
Email Services or any other conduct that attempts to disrupt,
disable, or overload the Messaging Services or Email Services.
iv)
Transmitting code, files, scripts, agents, or programs intended
to do harm, including viruses or malware, or using automated
means, such as bots, to gain access to or use the Messaging
Services or Email Services.
v)
Attempting to gain unauthorized access to the Messaging Services
or Email Services.
d)
Data Safeguards.
You are responsible for determining whether the Messaging
Services or Email Services offer appropriate safeguards for Your
use of the Messaging Services or Email Services, including, but
not limited to, any safeguards required by Applicable Laws, prior
to transmitting or processing any data or communications via the
Messaging Services or Email Services.
e)
Age and Geographic Gating.
If you are sending messages in any way related to alcohol,
firearms, gambling, tobacco, or other adult content, then more
restrictions apply. In addition to obtaining consent from every
message recipient, you must ensure that no message recipient is
younger than the legal age of consent based on where the recipient
is located. You also must ensure that the message content complies
with all applicable laws of the jurisdiction in which the message
recipient is located or applicable communications industry
guidelines or standards. You need to be able to provide proof that
you have in place measures to ensure compliance with these
restrictions.
f)
Terms Specific to Messaging Services
(1)
Prior to sending the first message, you must obtain consent
from the message recipient to communicate with them. You must
make clear to the individual they are agreeing to receive
messages of the type you're going to send. You need to
keep a record of the consent, such as a copy of the document
or form that the message recipient signed, or a timestamp of
when the customer completed a sign-up flow.
(2)
If you do not send an initial message to that individual
within a reasonable period after receiving consent (or as set
forth by local regulations or best practices), then you must
reconfirm consent in the first message you send to that
recipient.
(3)
The consent applies only to you, and to the specific use or
campaign that the recipient has consented to. You cannot treat
it as blanket consent allowing you to send messages from other
brands or companies, or additional messages about other uses
or campaigns.
(4)
Proof of opt-in consent must be retained as set forth by local
regulation or best practices after the end user opts out of
receiving messages.
ii)
Alternative Consent Requirements: The Two Exceptions.{" "}
While consent is always required and the consent requirements
noted above are generally the safest path, there are two
scenarios where consent can be received differently:
(1)
Contact initiated by an individual.
If an individual sends a message to you, you are free
to respond in an exchange with that individual. For example,
if an individual texts your phone number asking for your hours
of operation, you can respond directly to that individual,
relaying your open hours. In such a case, the
individual’s inbound message to you constitutes both
consent and proof of consent. Remember that the consent is
limited only to that particular conversation. Unless you
obtain additional consent, don't send messages that are
outside that conversation.
(2)
Informational content to an individual based a prior
relationship
. You may send a message to an individual where you have a
prior relationship, provided that individual provided their
phone number to you, and has taken some action to trigger the
potential communication and has not expressed a preference
tonotreceive messages from you. Actions can include a button
press, alert setup, appointments, or order placements.
Examples of acceptable messages in these scenarios include
appointment reminders, receipts, one-time passwords,
order/shipping/reservation confirmations, drivers coordinating
pick up locations with riders, and repair persons confirming
service call times. The message must not attempt to promote a
product, convince someone to buy something, or advocate for a
social cause.
iii)
Periodic Messages and Ongoing Consent.
If you intend to send messages to a recipient on an ongoing
basis, you should confirm the recipient’s consent by
offering them a clear reminder of how to unsubscribe from those
messages using standard opt-out language (defined below). You
must also respect the message recipient’s preferences in
terms of frequency of contact. You also need to proactively ask
individuals to reconfirm their consent as set forth by local
regulations and best practices.
iv)
Identifying Yourself as the Sender.
Every message you send must clearly identify you (the party that
obtained the opt-in from the recipient) as the sender, except in
follow-up messages of an ongoing conversation.
v)
Opt-out.
The initial message that you send to an individual needs to
include the following language: “Reply STOP to
unsubscribe,” or the equivalent using another standard
opt-out keyword, such as STOPALL, UNSUBSCRIBE, CANCEL, END, and
QUIT. Individuals must have the ability to revoke consent at any
time by replying with a standard opt-out keyword. When an
individual opts out, you may deliver one final message to
confirm that the opt-out has been processed, but any subsequent
messages are not allowed. An individual must once again provide
consent before you can send any additional messages.
vi)
Messaging Policy Violation Detection and Prevention Evasion.
You may not use Messaging Services to evade any
telecommunications provider’s unwanted messaging detection
and prevention mechanisms. Examples of prohibited practices
include:
(1)
Content designed to evade detection. As noted above, content
which has been specifically designed to evade detection by
unwanted messaging detection and prevention mechanisms is not
allowed. This includes intentionally misspelled words or
non-standard opt-out phrases which have been specifically
created with the intent to evade these mechanisms.
(2)
Snowshoeing. Snowshoeing is not allowed. Snowshoeing is
defined as spreading similar or identical messages across many
phone numbers with the intent or effect of evading unwanted
messaging detection and prevention mechanisms.
vii)
US Specific SMS Guidelines.
You are strongly encouraged to review proposed use cases
with qualified legal counsel to make sure they comply with all
applicable laws. The following are some general best practices:
(1)
Get opt-in consent from each customer or potential customer
before sending any communication to them, particularly for
marketing or other non-essential communications.
(2)
Only communicate during a customer or potential
customer’s daytime hours unless it is urgent.
(3)
SMS campaigns should support HELP/STOP messages, and similar
messages, in the customer or potential customer’s local
language.
(4)
Do not contact customers or potential customers on do-not-call
or do-not-disturb registries.
(5)
The euro symbol (€) is not supported; avoid using this
character in message submission toward the United States.
viii)
Services Using Phone Numbers.
If you use a phone number with any of the Messaging Services,
the following requirements apply:
(1)
Phone Number Compliance
. Upon LeadVenture’s request, you will provide
LeadVenture with true, accurate, and complete information
associated with your use of any phone number with the
Messaging Services for which LeadVenture is required to have
an address or any other information, if applicable, on record.
You will provide reasonable cooperation regarding information
requests from law enforcement, regulators, or
telecommunications providers. Furthermore, if you use any
Messaging Services that require the use of a phone number, you
will comply with any law or regulation that is or becomes
applicable as a result of your software application or service
interfacing with the Messaging Services.
(2)
Phone Number Porting
. You agree not to obtain phone numbers via your account for
the sole purpose of immediately porting them out. You agree to
provide us with explicit consent in the form required for each
phone number that you seek to port out. You agree not to take
any action to prevent the execution of a port-out request once
instructions have been given to facilitate such port-out
request. Your port-out request may not be possible if (a) the
phone number is not in service; (b) the port-out request is
prohibited by applicable law or regulation; (c) the port-out
request is not supported by the underlying telecommunications
provider or entity receiving the port-in request; or (d) the
port-out request is unauthorized, incomplete, or incorrect.
(3)
Withdrawal & Replacement of Phone Numbers
. You acknowledge that phone numbers associated with your
account are subject to (a) domestic and international laws,
policies, and regulations and (b) requirements of underlying
telecommunications providers, international intergovernmental
organizations (e.g., International Telecommunications Union
(ITU)), and phone numbering plan administrators ((a) and (b)
collectively, “Phone Number Rules”). We may
withdraw or replace any phone number associated with your
account (x) if required pursuant to the Phone Number Rules;
(y) if the use of such phone number violates Phone Number
Rules; or (z) for technical reasons. We will, where possible,
provide you with notice prior to any phone number withdrawal
or replacement for the foregoing reasons. Separately, we may
withdraw or replace any phone number without prior notice if
such phone number is associated with (a) a trial account that
has not been used for more than ninety (90) days or (b) an
account that has been suspended for more than ninety (90)
days.
g)
Terms Specific to Email Services
.
i)
Compliance with Laws.
You and your customers must comply with these terms and
all applicable laws, regulations, and industry standards or
guidance in connection with your use or your customers’
use of Email Services. You are responsible for your
customers’ use of Email Services.
ii)
Consent (“opt-in”).
You will obtain opt-in consent from a recipient prior to
sending emails to that recipient to the extent required by
applicable law or regulation.
(1)
You will not use purchased or rented email lists or email
lists of recipients that have not affirmatively consented
(i.e., opted in) to receive emails from you.
(2)
Where applicable law or regulation requires opt-in consent for
emails, proof of such consent should be retained by you in
accordance with the applicable law or regulation and at least
until the email recipient opts out of receiving emails.
(3)
Country specific consent requirements, such as double opt-in,
use of pre-checked consent boxes from consumers to assume
consent, and customers misconstruing consent by inaction or
silence should be adhered to, based on laws or regulations in
the applicable jurisdiction.
(4)
Every email you send must (a) clearly identify and accurately
represent yourself or your organization if you are the sender
(i.e., the party that obtained the opt-in consent from a
recipient or the party that is initiating the email), and (b)
include a clear non-deceptive subject line, which accurately
describes the content and purpose of the email (e.g. email is
an advertisement or promotion).
iii)
Revocation of Consent (“opt-out”).
All commercial or promotional emails that you send to an
individual must include the following in the body of each email:
(a)
An accurate physical mailing address in the body of the email,
an address where unsubscribe requests can be physically mailed;
(b) A clear and conspicuous unsubscribe link; and (c) A link to
your organization’s privacy policy applicable to emails
you send to recipients.
Individuals must have the ability to revoke consent to receive
further non-legally required notices at any time. When an
individual opts out, you must honor the request within 10 days
or the timeframe required by the applicable law or regulation,
whichever is shortest. An individual must provide opt-in consent
before you can send any additional emails.
iv)
Prohibited Actions.
You and your customers are prohibited from using Email Services
in the following ways:
(1)
Using third party email addresses, domain names without proper
consent or authorization
from the third party;
(2)
Sending emails that result in an unacceptable number of spam
or unsolicited email complaints;
(3)
Disguising, falsifying, or manipulating the origin, subject
matter, headers, or transmission path information of any
email;
(4)
Sending chain letters, pyramid schemes, or other fraudulent or
deceptive content to a recipient;
(5)
Using any tracking technologies (e.g., tracking pixels or
cookies) in emails sent to a recipient prior to obtaining
consent from that recipient to the extent and in the manner
required by applicable law or regulation; and
(6)
Evading mechanisms, filters, and detection capabilities
designed to identify unwanted emails.
v)
Deliverability Risk.
Some content or sending practices are not illegal or prohibited
but are highly likely to face deliverability issues. High rates
of deliverability problems and third-party complaints (e.g.,
consumer or recipient complaints or complaints from inbox
providers) may negatively affect the performance of Email
Services. As such, email content or sending practices that
generate such outcomes may lead to the third-party
provider’s refusal to deliver emails or account
suspension. Examples of content that may be at risk for
increased monitoring and potential deliverability issues
include, but are not limited to, the following:
(1)
Emails related to work-at-home hoaxes, get rich quick schemes,
and make money online schemes;
(2)
Unsolicited lead generation opportunities;
(3)
Gambling services;
(4)
Multi-level and affiliate marketing;
(5)
Credit repair and get-out-of-debt opportunities;
(6)
Multimedia Messaging Service; MM3 Stage 3 for Internet Mail
Exchange;
(7)
Selling “Likes” or followers for a social media
platform; and
(8)
Cryptocurrencies, virtual currencies, and any digital assets
related to an Initial Coin Offering.
vi)
Creation of Multiple Accounts.
All Email Services customers are prohibited from creating an
excessive number of accounts for the purposes of circumventing
internal controls. In general, accounts are limited to one free
and one paid Email Services email account per customer with
employees, contractors, and authorized users to segregate usage
as appropriate.
3.
Violations.
We reserve the right to suspend or remove access to Messaging
Services or Email Services for clients we determine are not
complying with these Service Specific Terms, or who are not
following the law in any applicable area or applicable
communications industry guidelines or standards, in some instances
with limited notice in the case of serious violations of this
policy.
Last Updated 05/01/2023