1. Acceptance of the Agreement; Eligibility; Registration.
a. By accepting this agreement or upon installation or use of the Application by You, whichever occurs earlier, You agree to and are bound by the Agreement. Should you object to any term or condition of the Agreement, do not download, access, or use the Application.
b. In order to access the Application, You may be required to first pay a fee or have provided the Company with certain registration information and/or created Your Account, as defined in Section 2 of this Agreement.
c. Download, use of, and registration for, the Application is void where prohibited. By using the Application in any way, You represent and warrant that:
(i) You are at least 18 years of age, and able to form legally binding contracts under applicable law;
(ii) all personal identifying information You submit is true, current, accurate, and complete, and that You will update Your information promptly if any of that information changes during the duration of Your use of the Application; and
(iii) Your use of the Application does not violate any law or regulation.
2. Your Service Account and Associated Accounts
a. Only You may use Your Service Account (or “Account”). You must keep Your Accounts and passwords confidential and not authorize any third party to access or use the Application on Your behalf, unless the Company provides an approved mechanism for that. You agree to contact the Company immediately if You suspect misuse of Your Accounts or any security breach in the Application. You may be able to set up additional Accounts that are dependent on Your Account (“Associated Accounts”). You are responsible for all activity that takes place with Your Service Account and any Associated Accounts. You may not use another person’s Account. The Company may require that You change Your Account Information or certain parts of Your Account Information at any time for any reason.
b. If You are the user of an Associated Account, then the holder of the Service Account has full control over Your Associated Account. This control Includes the right to manage Your Associated Account, reset Your password, or suspend or cancel Your Associated Account, end the Services, close or alter your associated account at any time, view Your Associate Account’s usage and profile data, Including how and when Your Associate Account is used; and read or store content in Your Associated Account, Including electronic communications, contact lists, and other information, and, in some cases, to request and receive machine and Service usage information related to Your Associated Account. As an Associated Account user, this Agreement applies to Your use of the Services, except for the following: With regard to Section 2a, You and the holder of the Service Account on which Your Associated Account depends may have access to Your password and Associated Account. Section 11 shall apply to the holder of the Service Account on which Your Associated Account depends, rather than You.
Any personally identifying information submitted through the Application is subject to the Company’s Notice of Privacy Practices located at www.LotMonkey.com/privacy, the terms of which are Incorporated herein by reference. Please review the Notice of Privacy practices to understand the Company’s privacy practices. The date of any updates to the Notice of Privacy Practices will be noted at the top of the webpage containing the Notice of Privacy Practices.
4. Supported Carriers
The following list of carriers is supported by the Application: Alltel Wireless, AT&T Mobility, Bluegrass Cellular, Boost, C Spire, Carolina West, CeIncom, Cellular 29 plus, Centennial Wireless, Chat Mobility, CIncinnati Bell, Cleveland Unlimited Copper Valley Cellular, Cricket Communications, Cross-Valliant Cellular, CT Cube, CTC Telecom, DTC Wireless, East Kentucky Network, Element Mobile, EpicTouch, Farmers Mutual Telephone Co., GCI Communication, Illinois Valley Cellular, Iowa Wireless Services, Jasper Wireless, Leaco Rural Telephone Company, MetroPCS, MTA Communications MTPCS, Nex-Tech Wireless, North Dakota Network, Northwest Missouri Cellular, nTelos, Panhandle, Pine Cellular, Pioneer, Plateau Telecommunications, Sagebrush Cellular, SI Wireless, Sprint Nextel, T-Mobile USA, TMP Corporation, UBET Wireless, Union Telephone Company, US Cellular, Verizon Wireless, and Virgin Mobile US. This list is non-exhaustive; other carriers may be supported as well.
5. User Content
a. “User Content” means materials, data, information, or other content that a User uploads, posts, emails, transmits or otherwise Makes Available (see definition in section 5b of this Agreement) in its Account. The Company does not claim ownership of User Content. However, You grant the Company a worldwide, royalty-free, nonexclusive, transferable, and fully sublicensable license to use, distribute, reproduce, modify, publish and translate Your User Content solely for the purposes of enabling Your use of the Application, facilitating the Company’s management of the Application, and to comply with applicable law, regulations, guidelines, and court or administrative orders. You may revoke this license and terminate the Company’s rights at any time by removing Your User Content from the Application; provided that You agree that the Company may retain and use copies of Your User Content for archival purposes and pursuant to Section 8 (Investigations), below.
b. You agree that as between You and the Company, You, not the Company, are entirely responsible for all of Your User Content that You distribute, perform, display, upload, post, email, transmit or otherwise make available on or through the Application(“Make Available”), whether publicly posted or privately transmitted. You assume all risks associated with use of Your User Content, Including any reliance on its accuracy, completeness or usefulness. The holder of a Service Account is also responsible for the User Content of users of Associated Accounts
c. You represent and warrant that:
(i) You own the Intellectual Property Rights, or have obtained all necessary license(s) and permission(s), to use Your User Content;
(ii) You own the Intellectual Property Rights, or have obtained all necessary license(s) and permission(s) in the web sites to which You point short uniform resource locators (URLs) or quick response (QR) codes;
(iii) You have the rights necessary to grant the license and sublicenses described in the Agreement; and
(iv) You have received consent from any and all persons depicted in Your User Content to use Your User Content as set forth in the Agreement, Including distribution, public display, public performance and reproduction of Your User Content.
d. The Company does not control, verify, or endorse Your User Content or third party web sites to which You point short URLs or QR codes, or that You and others Make Available on or through the Application.
e. You are responsible for backing up the data that You store on or through the Application. Unless expressly agreed to by the Company in writing elsewhere, The Company has no obligation to store any User Content. The Company has no responsibility or liability for the deletion or accuracy of Your User Content, the failure to store, transmit or receive transmission of User Content, or the security, privacy, storage or transmission of other communications originating with or involving use of the Application. Certain features of the Services may enable You to specify the level at which such features restrict access to Your User Content. You are solely responsible for applying the appropriate level of access to Your User Content. If You do not choose, the system may default to its most permissive setting. You agree that the Company retains the right to create reasonable limits on the use of the Service, Including Your User Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages accompanying the Services and as otherwise determined by the Company in its sole discretion. The Company may remove Your User Content from the Application at any time if You breach this Agreement or if the Company cancels or suspends the Application or any service or feature accessible therefrom.
6. Use of the Application.
a. You agree to use the Application only for purposes that are permitted by the Agreement and any applicable law, regulation, or generally accepted practices or guidelines in any applicable jurisdiction (Including any laws regarding the export of data or software to and from the United States or other applicable countries) (“Law”).
b. You agree not to access or attempt to access the Application by any means other than the interface provided by The Company or circumvent any access or use restrictions put into place to prevent certain uses of the Application.
c. You agree to abide by all applicable local, state, national, and international laws and regulations. By way of example, and not as a limitation, You agree to refrain from uploading, publishing, transmitting, emailing, storing, posting, disseminating, distributing, or otherwise making available User Content, or generating short URLs or QR codes pointing to documents or web sites containing content, that:
(i) is patently offensive, defamatory, obscene, illegal, pornographic, profane, inflammatory, intimidating, harassing, vulgar, fraudulent, infringing, inappropriate, false, misleading, libelous, or promotes illegal activities;
(ii) could harm, disable, overburden, or impair the Application; and
(iii) infringes a third party’s patent, trademark, copyright, trade secret, contract, privacy, publicity, or other proprietary rights; and
(iv)contains software viruses, or similar programs or code, which cause loss of data or malfunctioning of computer software, hardware, or telecommunications equipment.
d. You still further agree not to use the Application in any manner prohibited by the Company. The following activities are examples of the kind of activities You are prohibited from conducting using the Application. They are exemplary, and in no way meant to limit the definition of prohibited activities. You are prohibited from:
(i) Harvesting or collecting email addresses or other personal identification information of Users to send emails or other unsolicited communications;
(ii) Using automated scripts to interact with the Application, harvest information from the Application, or the like;
(iii) Impersonating any person or entity, or providing false or fraudulent information about Yourself, Your age, or Your affiliation with any person or entity;
(iv) Soliciting personal information or other identifying information from anyone under the age of 18;
(v) Using the Application to conduct, encourage, attempt, or assist another in conducting tortuous, criminal, or otherwise unlawful activities;
(vi) Attempting to gain unauthorized access to the Application, other accounts, and/or computer systems and networks of the Company, its affiliates, agents, or partners, Including, without limitation by circumventing, modifying, attempting to circumvent or modify, interfere with any security technology or software;
(vii) Using the account, username, or password of another User at any time, disclosing Your password to any third party, or permitting any third party to access Your account; and
(vii) Selling or transferring Your Account in any way.
7. Use of Software.
a. If You receive Software from the Company as part of the Application, its use is governed in one of two ways: If You’re presented with license terms that You must accept in order to use the Software, those terms apply; if no license is presented to You, this Agreement applies. The Company reserves all other rights to the Software.
b. Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, Including any copying or redistribution of the Software to any other server or location, redistribution or use on a service bureau basis. If there is any conflict between this Agreement and the license agreement provided with such Software, the license agreement shall take precedence in relation to that Software; except only that if the Software is a pre-release version, then, notwithstanding anything to the contrary Included within an accompanying license agreement, You are not permitted to use or otherwise rely on the Software for any commercial or production purposes.
c. If no license agreement accompanies the Software, use of the Software will be governed by the terms of this Section 7(c). The Company grants You a personal, worldwide, freely revocable, limited, non-transferable, non-sublicensable, royalty-free, non-assignable, nonexclusive license to use the Software in the manner permitted by the Agreement. You agree that You will not decompile, reverse engineer or otherwise attempt to discover the source code of the Software. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of the jurisdiction where You are located give You the right to do so to obtain information necessary to render the Software interoperable with other software, provided, however, that You must first request the information from the Company and the Company may, in its discretion, either provide such information to You or impose reasonable conditions, Including reasonable fees, on use of the Software to ensure that The Company’s Intellectual Property Rights in the Software are protected. You may not assign (or grant a sublicense of) Your rights to use the Software, grant a security interest in or over Your rights to use the Software, or otherwise transfer any part of Your rights to use the Software. For clarity, Your use of the Software is also subject to the disclaimers, and export control provisions contained in this Agreement.
d. Any Software we provide is licensed, not sold. Unless we notify You otherwise, the software license ends when Your service ends. You must then uninstall the software, or we may disable it. You must not work around any technical limitations in the Software. You must not disassemble, decompile, or reverse engineer any Software that’s Included in the Application, except and only to the extent that the applicable copyright law expressly permits doing so.
e. We may automatically check Your version of the Software. The Software may automatically download to, and install on, Your computer updates from the Company from time to time. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new Software modules and completely new versions. You agree to receive such updates (and permit the Company to deliver these to You with or without Your knowledge) as part of Your use of the Application.
f. The Software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws Include restrictions on destinations, end users, and end use. Without limitation, You may not transfer the software or Services without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department’s Lists to Check); the governments of Iran, Sudan, or Cuba; or prohibited members of the Cuban Communist Party. You represent and warrant that You’re not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.
a. The Company, in its sole discretion, may (but has no obligation to) monitor or review Your use of the Application at any time. Without limiting the foregoing, the Company shall have the right, in its sole discretion, to remove any of Your User Content or disable QR codes or short URL’s You generated using any of the services or features of the Application, for any reason (or no reason), Including if it violates the Agreement or any Law.
b. Although The Company does not generally monitor User activity occurring in connection with the Application, if the Company becomes aware of any possible violations by You of any provision of the Agreement, the Company reserves the right to investigate such violations, and the Company may, at its sole discretion, immediately terminate Your rights hereunder, Including Your right to use the Application or change, alter or remove Your Content or Account Information, in whole or in part, without prior notice to You. If, as a result of such investigation, the Company believes that criminal activity has occurred, the Company reserves the right to refer the matter to, and to cooperate with, any and all applicable law enforcement authorities. Except to the extent prohibited by applicable Law, the Company is entitled to retain and/or disclose any information or User Content, Including Your User Content or Account Information (or elements thereof), in the Company’s possession in connection with Your use of the Application to:
(i) comply with applicable Law, legal process or governmental request;
(ii) enforce the Agreement;
(iii) respond to any claims that Your User Content violates the Agreement or rights of third parties;
(iv) respond to Your requests for customer services; or
(v) protect the rights, property or personal safety of the Company, its employees, officers, and directors, Users or third parties, Including the public at large, as the Company in its sole discretion believes to be necessary or appropriate.
9. The Company’s Intellectual Property.
a. Copyright and other intellectual property laws and treaties protect the Software and all other aspects of the Application. The Company, or its licensors, owns the title, copyright, trademark, trade dress, patent, trade secret, unfair competition, and other intellectual and proprietary rights (the “Intellectual Property Rights”) in the Software and Application. The Software and Application are solely licensed and not sold. The Company and its suppliers reserve all other rights to the Software and Application that are not expressly granted in this Agreement. You do not have ownership rights to any Software made available or accessible on or in relation to the Application, or any other aspect of the Services (except you may own your own submissions), regardless of how the Software and Application are used, accessed, downloaded, or otherwise made available to You. Except as expressly provided in the Agreement, the Company and its suppliers do not grant any express or implied rights to use the Application.
b. LOTMONKEY, QWIKTAG, QWIKTAGS, MOBILEAD, MOBILEADS, and other Company designs, slogans, graphics, and symbols are trademarks, service marks, and/or trade dress belonging exclusively to the Company. You may not use, copy, or modify such trademarks, service marks, and trade dress for use in a confusingly similar manner without first obtaining the written consent of the Company.
c. Proprietary rights in the short URLs and QR codes You or third parties generate using the Services are the exclusive and sole property of the Company. The Company grants You a worldwide, nonexclusive, nontransferable license to use, distribute, reproduce, modify, and publish said short URLs and QR codes so long as Your Account is active. When your Account is terminated (regardless of whether voluntarily or involuntarily), the license is revoked. At 12:01am Eastern time on the day following the date in which your account expires or is terminated, the QR codes and short URL’s will no longer point to the landing pages to which You pointed them. After the license is revoked, You are prohibited from using, distributing, reproducing, modifying, and publishing the codes or short URLs.
d. Reference to any products, services, processes, or other information, by trade name, trademark, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by the Company.
10. Copyrights and Other Third Party Intellectual Property.
a. You may not use the Application to violate any third party’s intellectual property rights, Including patent, trademark, copyright, trade secret, publicity, privacy, contract, or other proprietary rights. You represent and warrant that You will not post, display, upload, share, reproduce, transmit, or otherwise use any information, photographs, audio files, video files, data, documents, and any other materials, on or through the Application, which violates or infringes any intellectual property or proprietary rights of a third party.
b. In accordance with the Digital Millennium Copyright Act, 17 U.S.C. Section 512(c), if You believe that Your work has been posted, modified, distributed, reproduced or otherwise copied on or through the Application in a way that constitutes copyright infringement, for the Company to remove or disable the material, please send a Notification to the Company’s Copyright Agent, which Includes the following information:
1. Your physical or electronic signature, or that of a person authorized to act on behalf of the owner of a copyrighted work, which is alleged to be infringed.
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single Notification, a representative list of such works.
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the Company to locate the material.
4. Information reasonably sufficient to permit the Company to contact You, such as an address, telephone number, and, if available, an email address.
5. A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
6. A statement that the information in the Notification is accurate, and under penalty of perjury, that You are authorized to act on behalf of the owner of the copyrighted work, which is alleged to be infringed.
The Notice should be sent either by email to:
with “Attn: Notification to Copyright Agent” in the subject line,
or by mail to:
Attn: Notification to Copyright Agent
17 Wood Road Suite 500
Round Lake, New York 12151
c. In accordance with the Digital Millennium Copyright Act, 17 U.S.C. Section 512(g), if You believe that any material You have Made Available to the Application has been mistakenly removed or disabled, or that the material does not, in fact, violate or infringe the copyright rights of another, please send a written Counter-Notification to the Company’s Copyright Agent, which Includes the following information:
1. Your physical or electronic signature.
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that You have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. Your name, address, and telephone number.
5. A statement that You consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if Your address is outside of the United States, for any judicial district in which the service provider may be found, and that You will accept service of process from the person who provided the Notice of copyright infringement or an agent of such person.
The Counter-Notification should be sent either by email to:
with “Attn: Counter-Notification to Copyright Agent” in the subject line,
or by mail to:
Attn: Counter-Notification to Copyright Agent
17 Wood Road Suite 500
Round Lake, New York 12151
c. Please note that the above-described procedures are regulated by statute. Sending a Notice or Counter-Notice to the Company, when such allegation is in bad faith or otherwise false, can cause You to be liable for damages, attorney fees, costs, and can be perjury. Speaking to an attorney before You send a Notice or Counter-Notice may help You understand Your rights.
d. The Copyright Agent will not remove content from the Application in response to phone or email notifications regarding allegedly infringing content, sInce a valid DMCA notice must be signed, under penalty of perjury, by the copyright owner or by a person authorized to act on his or her behalf. Please submit such notifications by fax or ordinary mail only and as further described by this Section. The Copyright Agent should be contacted only if You believe that Your work has been used or copied in a way that constitutes copyright infringement and that such infringement is occurring on or through the Application. All other inquiries directed to the Copyright Agent will not be responded to. Such inquiries should be made through the feedback procedure referenced in Section 19 or the report abuse procedure referenced in Section 20.
11. Charges, Payments and Refunds.
(i) Subscription Charges. Charges for plans are posted on the website and may be changed from time-to-time. Payments are due for any month on the same date, or the closest date in that month, to the date of the month You activated the Services of the Application and made your first monthly payment (the “Pay Date”).
(ii) Trial period offers. Unless the Company notifies You otherwise, if You’re participating in any trial period offer, You must cancel the Services by the end of the trial period to avoid Incurring new charges. If You do not cancel Your Services, You authorize the Company to charge Your Payment Method (defined in Section 11c below).
b. Price changes.
The Company expressly reserves the right to change or modify its prices and fees at any time, and such changes or modifications shall be posted online at the www.LotMonkey.com website and effective immediately without need for further notice to You. If you have purchased Services for a period of months or years, changes or modifications in prices and fees shall be effective when the Services in question come up for renewal as further described below.
c. Payment Method.
Except as prohibited in any product-specific agreement, you may pay for Services by providing a valid credit card, an electronic check (from your personal or business checking account, as appropriate), PayPal (as defined below) (each, a “Payment Method”). Confirmation for orders will be sent to the email address on file for Your Account. Your Payment Method on file must be kept valid if you have any active Services in your Account.
d. Late payments.
Except as prohibited by law, we may assess a late charge if You do not pay on time. You must pay these late charges when the Company bills You for them. The late charge will be the lesser of 1 percent of the unpaid amount each month or the maximum rate permitted by law. The Company may use a third party to collect past due amounts. You agree to pay for all reasonable costs the Company Incurs to collect any past due amounts, Including reasonable attorneys’ fees and other legal fees and costs. The Company may suspend or cancel Your service if You fail to pay in full on time.
In order to ensure that you do not experience an interruption or loss of Services, most Services offer an automatic renewal option. The automatic renewal option automatically renews the applicable Services for a renewal period equal in time to the original service period. For example, if your original service period is for one year, your renewal period will be for one year. The automatic renewal option Is the default setting. Therefore, unless you disable the automatic renewal option, the Company will automatically renew the applicable Services when it comes up for renewal and will take payment from the Payment Method you have on file with the Company at the Company’s then current rates, which you acknowledge and agree may be higher or lower than the rates for the original service period. In order to see the renewal settings applicable to you and your Services, simply log into your Account and follow the steps found there. You may enable or disable the automatic renewal option at any time. However, should you elect to disable the automatic renewal option and fail to manually renew your Services before they expire, you may experience an interruption or loss of Services, and the Company shall not be liable to you or any third party regarding the same.
f. The Company may participate in “recurring billing programs” or “account updater services” supported by your credit card provider (and ultimately dependent on your bank’s participation). If you are enrolled in an automatic renewal option and we are unable to successfully charge your existing Payment Method, your credit card provider (or your bank) may notify us of updates to your credit card number and/or expiration date, or they may automatically charge your new credit card on our behalf without notification to us. In accordance with recurring billing program requirements, in the event that we are notified of an update to your credit card number and/or expiration date, the Company will automatically update your payment profile on your behalf. The Company makes no guarantees that we will request or receive updated credit card information. You acknowledge and agree that it is your sole responsibility to modify and maintain your Account settings, Including but not limited to
(i) setting your renewal options and
(ii) ensuring your associated Payment Method(s) are current and valid. Further, you acknowledge and agree that your failure to do so, may result in the interruption or loss of Services, and the Company shall not be liable to you or any third party regarding the same.
g. If for any reason the Company is unable to charge your Payment Method for the full amount owed for the Services provided, or if the Company is charged a penalty for any fee it previously charged to your Payment Method, you agree that The Company may pursue all available lawful remedies in order to obtain payment. If you pay by credit card and if for any reason the Company is unable to charge your credit card with the full amount owed for the Services provided, or if the Company is charged back for any fee it previously charged to the credit card you provided, you agree that the Company may pursue all available lawful remedies in order to obtain payment. You agree that the remedies the Company may pursue in order to effect payment shall Include, but not be limited to, immediate cancellation of Services to You. The Company reserves the right to charge you reasonable “administrative fees” or “processing fees” for:
1. tasks the Company may perform outside the normal scope of its Services,
2. additional time and/or costs the Company may Incur in providing its Services, and/or
3. Your noncompliance with this Agreement (as determined by the Company in its sole and absolute discretion)
Typical scenarios Include, but are not limited to, customer service issues that require additional personal time or attention, fees Incurred by third-party payment providers such as PayPal, fees Incurred as the result of chargebacks or other payment disputes brought by You, Your bank, or a Payment Method processor, and disputes that require accounting or legal services. These administrative fees or processing fees will be billed to the Payment Method you have on file with the Company
You may cancel Services at any time, with or without cause. See Section 15 of this Agreement for information on terminating Your Account. Some service offers may require You to pay cancellation charges as stated in the materials describing the offer. Your cancellation of Services won’t alter Your obligation to pay all charges made to Your Account.
(i) You agree to pay any and all prices and fees due for Software and Services purchased as part of the Application. All prices and fees are non-refundable unless otherwise expressly noted, even if Your Services are suspended, terminated, or transferred prior to the end of the Services term.
(ii) The Company is required to provide a refund only if it terminates Services to You without cause before the end of a month/year for which You have paid. There is no other circumstance in which you will be entitled to a refund from the Company. The Company may, at its sole discretion, offer refunds in other situations subject to any User seeking such refund by applying for the refund through the ”My Account” section of Your Account.
(iii) Where refunds are issued, the Company’s issuance of a refund receipt is confirmation that the Company has submitted Your refund to the Payment Method charged at the time of the original sale. You acknowledge and agree that the associated payment provider and/or individual issuing bank establish and regulate the time frames for posting your refund. Refund posting time frames may range from five (5) business days to a full billing cycle.
j. Online statement and errors.
(i) Charges on your Billing Account will be summarized for you via online statement in the Billing and Account Management portion of Your Account on the Application or via e-mail receipt sent to the e-mail address You provided at initial Services sign-up. You can view, print, or request a paper copy of this statement. If You request a paper copy, the Company may charge You a retrieval fee. The Company will provide paper copies only for the past 120 days.
(ii) You agree that such online statement or e-mail receipts are the only statement of your Billing Account that the Company needs to provide to You. IT IS YOUR RESPONSIBILITY TO PRINT OR SAVE A COPY OF EACH ONLINE STATEMENT OR EMAIL RECEIPT AND TO RETAIN COPIES FOR YOUR RECORDS.
k. Payments to You.
Your right to any payment due to You from the Company is conditioned upon You promptly providing the Company with all of the information needed to properly make the payment. You must provide the Company with the information requested before Your right to receive the payment accrues. You are responsible for the accuracy of the information You provide and for any taxes and charges You may Incur. You must also comply with any other conditions the Company places on Your right to any payment. If You receive a payment in error, the Company may reverse or require return of the payment. You agree to cooperate with the Company in our efforts to do this.
(i) Internet access service.
The Services don’t Include Internet access, so You are responsible for paying the fees charged by Your Internet access provider. Those fees are in addition to the fees You pay the Company for access to the Application
(ii) Message and data rates may apply from Your wireless carrier.
Please consult Your wireless carrier for applicable text messaging fees. Under no circumstances will the Company be responsible for fees that Your wireless carrier or other third parties may charge You for use of the Service.
12. NO WARRANTY; LIABILITY LIMITATIONS.
a. YOU AGREE THAT USE OF THE APPLICATION IS ENTIRELY AT YOUR OWN RISK. THE APPLICATION IS PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS “WITH ALL FAULTS”, WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ANY WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY, AND PERFORMANCE OF THE APPLICATION. TO THE FULLEST EXTENT PERMITTED BY LAW, THE COMPANY DISCLAIMS ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE APPLICATION.
b. IN NO EVENT WILL THE COMPANY OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM: YOUR USE OF THE APPLICATION, ANY PLATFORM APPLICATIONS OR ANY OF THE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH THE APPLICATION, YOUR OR ANOTHER USER’S MISUSE OF THE APPLICATION, FROM INABILITY TO USE THE APPLICATION, OR THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION, OR TERMINATION OF THE APPLICATION, EVEN IF THE COMPANY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY’S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY THE USER FOR USE OF THE APPLICATION. THIS LIMITATION OF LIABILITY MAY NOT BE VALID IN SOME STATES.
c. The Company does not guarantee the accuracy or timeliness of information available from the Application. You acknowledge that computer and telecommunications systems are not fault-free and occasional periods of downtime occur. The Company expressly disclaims any liability for the Application being unavailable, interrupted, inoperable, unreliable, or containing viruses, bugs, errors, or defects. The Company is further not responsible for the Application being inaccurate, Incomplete or out-dated, or containing or providing inaccurate, Incomplete, or out-dated information, materials, or software. The Company has no obligation to correct any of the aforementioned occurrences.
d. The Company is not responsible for the Application containing User Content that is offensive, obscene, illegal, or the like. The Company is not responsible for the actions of Users on the Application as the Company has no control over them. You acknowledge that the Company is not responsible for any content, User Content, third party applications, or software posted to, displayed on, or available from, the Application regardless of whether it was posted by a User, third party, or the Company. Your use and/or downloading of any information from or through the Application is at Your own discretion and sole risk. You are solely responsible for any and all damages, losses, or other harm that may result.
e. The Application may contain links, posted by the Company or Users, to Third Party web sites or materials belonging to or originating from third parties. The Company does not investigate such Third Party web sites. THE COMPANY DOES NOT CONTROL, ENDORSE OR ACCEPT RESPONSIBILITY FOR ANY MATERIALS OR SERVICES OFFERED BY THIRD PARTIES ACCESSIBLE THROUGH LINKED THIRD PARTY WEB SITES. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ABOUT, AND SHALL NOT BE LIABLE FOR, ANY SUCH THIRD PARTIES, THEIR MATERIALS OR SERVICES. ANY DEALINGS THAT YOU MAY HAVE WITH SUCH THIRD PARTIES ARE AT YOUR OWN RISK. Except as expressed stated otherwise herein, This Agreement does not apply to Third Party websites, so if You leave the Site through a link or otherwise, You should review the particular third party web site(s)’s terms and policies.
f. THE COMPANY WILL NOT BE LIABLE FOR ANY LOSS THAT YOU MAY INCUR AS A RESULT OF SOMEONE ELSE USING YOUR PASSWORD OR SERVICE ACCOUNT OR ACCOUNT INFORMATION OR REGISTRATION INFORMATION IN CONNECTION WITH THE APPLICATION, EITHER WITH OR WITHOUT YOUR KNOWLEDGE.
g. The limitations and exclusions apply to anything related to this Agreement, for example:
(i) The Application, Software, and Services.
(ii) Loss of data.
(iii) Content (Including code) on third-party web sites, third-party programs, or third-party conduct accessed via the Application.
(iv) Viruses or other disabling features that affect Your access to or use of the Application.
(v) Incompatibility between the Application and other services, software, and hardware. Delays or failures You may have in starting or completing transmissions or transactions in connection with the Application in an accurate or timely manner.
(vi) Claims for breach of contract; breach of warranty, guarantee or condition; strict liability; tort (Including negligence or breach of statutory duty); or misrepresentation.
The limitations and exclusions also apply if this remedy does not fully compensate You for any losses or fails of its essential purpose or if we knew or should have known about the possibility of the damages.
Some or all of these limitations or exclusions may not apply to You if Your state, province, or country does not allow the particular exclusion or limitation.
13. Indemnity and Hold Harmless.
You agree to hold harmless, indemnify, and at the Company’s request, defend, the Company, its subsidiaries, and affiliates, and their respective officers, directors, agents, contractors, partners and employees, from and against any loss, liability, claim, demand, damages, costs, or expenses, Including reasonable attorneys fees made by any third party due to or arising out of Your use of the Application, any User Content You Make Available on or though the Application, any QR codes or short URLs You generated using the Application, violation or breach of this Agreement, and/or violation of any law, regardless of whether such third party is successful.
14. Changes to the Application and/or Services.
The Company may change the Application or delete features at any time for any reason. A particular feature of the Software or Services may be a prerelease version—a beta, for example—and may not work correctly or in the way a final version might work. The Company may significantly change the final version or decide not to release a final version. You agree that the Company shall not be liable to You or any third party for any modification, suspension or discontinuance of the Application or one or more particular features of the Software or Service.
The Agreement will continue to apply until terminated by either You or the Company as set forth below.
a. If You want to terminate Your Agreement with the Company, You may do so by closing Your accounts for all of the features of the Application that You use in the “my account” section of Your Account. Your subscription will then expire (terminate) at 12:01am Eastern time on the day following the date in which your subscription term ends. For example, if you had paid for a one year subscription term on February 1, 2015, and elected not to renew on January 1, 2016, your Services will expire at 12:01am Eastern time on February 1, 2016.
b. The Company may at any time terminate the Agreement (or portion thereof) with You if:
(i) You have breached any provision of the Agreement (or have acted in a manner that clearly shows You do not intend to, or are unable to, comply with the Agreement);
(ii) The Company is required to do so by Law (for example, where the provision of the Application or one or more features of the Services to You is, or becomes, unlawful);
(iii) The provision of the Application and/or one or more particular features of the Software or Services to You by the Company is, in the Company’s opinion, no longer commercially viable;
(iv) The Company has elected to discontinue the Application and/or one or more features of the Services; or
(v) There has been an extended period of inactivity in Your Service Account.
c. The Company may also terminate or suspend all or a portion of Your Service Account and/or access to one or more features of the Application for any reason. Termination of Your Service Account may Include:
(i) removal of access to all offerings within the Services;
(ii) deletion of Your User Content and Account Information, Including Your personal information, log-in ID and password, and all related information, files and materials associated with or inside Your Service Account (or any part thereof); and
(iii) barring of further use of the Application.
d. You agree that all terminations for cause shall be made in the Company’s sole discretion and that the Company shall not be liable to You or any third party for any termination of Your Service Account (and accompanying deletion of Your Account Information), or access to one or more features of the Service, Including Your Content.
e. Upon expiration or termination of the Agreement, You shall promptly discontinue use of the Services. However, any perpetual licenses You have granted, any of Your indemnification and payment obligations hereunder, any of the Company’s disclaimers or limitations of damages of liabilities hereunder will survive any termination or expiration of the Agreement.
16. International Users.
The Company administers the Application and its associated Software and Services from its offices in Round Lake, NY, United States of America. The Company makes no representation that the Application is appropriate or available for use outside the United States and access to the Application from territories where its contents are illegal or restricted is prohibited. If You choose to access the Application from outside the United States, You do so on Your own initiative and are responsible for compliance with applicable Laws. You agree to comply with all export and re-export restrictions and regulations of the Department of Commerce and any other United States or foreign agencies and authorities in connection with Your use of the Application and to not, in violation of any Laws, transfer, or authorize the transfer, of any of the Company’s products, Software, Services or technology to a prohibited country or otherwise in violation of any Laws. In particular, but without limitation, the products, Services or technology may not, in violation of any Laws, be exported or re-exported
(i) into any U.S. embargoed countries or
(ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders or U.S. Department of Commerce Entity List of proliferation concern, or Debarred Parties List.
By using any products, Services or technology subject to any such restrictions and regulations, You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.
17. User Disputes.
The Company reserves the right to monitor and intervene in disputes between and among Users, however, the Company is in no way obliged to monitor or intervene in such disputes. If there is a dispute between Users of the Services, or between Users and any third party, You understand and agree that the Company is under no obligation to become involved. You are solely responsible for Your conduct while using the Services. In the event that You have a dispute with one or more other users, You hereby release the Company, its officers, employees, agents and successors in rights from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes and/or the Application.
18. General legal terms.
a. Interpreting the Agreement. All parts of this Agreement apply to the maximum extent permitted by relevant law. If for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the parties as reflected by that provision, and the Agreement between You and the Company regarding the Application. Unless you signed a beta-testing agreement with the Company, this Agreement supersedes any prior contract or oral or written statements regarding Your use of the Application. Any failure by the Company to enforce or exercise any provision of the Agreement, or any related right, shall not constitute a waiver of that provision or right. The Agreement’s section titles don’t limit its terms. If you are a beta-tester per an executed beta testing agreement, the Confidentiality provisions of the beta-testing agreement remain in full force and effect regardless of this Agreement.
b. Assignment and transfer. The Company may assign, transfer, or otherwise dispose of its rights and obligations under the Agreement, in whole or in part, at any time without notice. You may not assign this Agreement or transfer any rights to use the Application.
c. No third-party beneficiaries. This Agreement is solely for Your and the Company’s benefit. It is not for the benefit of any other person, except for permitted successors.
d. Notices. Any notice provided to the Company pursuant to the Agreement should be sent to:
17 Wood Road
Round Lake, New York 12151
Attention: CEO, or by email to email@example.com.
The Company may provide You with notices, Including those regarding changes to the Agreement, by email, regular mail, text message, postings on or within the Service, or other reasonable means now known or hereafter developed. Notices emailed to You will be deemed given and received when the email is sent. If You don’t consent to receive notices electronically, You must stop using the Service.
e. Choice of Law; Choice of Forum. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules. You expressly agree that the exclusive jurisdiction for any claim or action arising out of or relating to this Agreement or Your use of the Application be initiated and maintained only in the state and federal courts located in Albany County, New York (USA), and You further agree and submit to the exercise of personal jurisdiction and venue of such courts for the purpose of litigating any such claim or action. Any action by You against the Company hereunder shall be brought within one (1) year after the claim arose, or be barred.
Notwithstanding the foregoing, in the event of Your or others’ unauthorized access to or use of the Services or Materials in violation of the Agreement You agree that the Company shall be entitled to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
19. Report Abuse.
a. The Company treats all abuse reports concerning the Application extremely seriously. If applicable, we will forward a copy of the complaint to the User and/or Account holder. It is within the Company’s sole discretion whether to enforce the Agreement in response to any particular complaint. If the Company does not act, it is not considered a waiver of any right to do so in the future.
b. If You believe a User has violated any of the terms of the Application (other than by Copyright Infringement, which is dealt with in Section 10 of this Agreement), please submit the following to firstname.lastname@example.org:
(i) Your full legal name;
(ii) Your mailing address and telephone number;
(iii) Your email address;
(iv) Your username if you are an Account holder with the Application; and
(v) The Username of the User/Account holder you believe may have violated the Agreement and a written explanation of how (and on what date) you believe said User has violated the Agreement. If you have a URL for the page on which you believe the violation occurred, please Include it.
The Company may remove User Content, an Account, or Associated Account at its discretion, if You provide a detailed description and evidence that the User violates the Company’s Agreement. The Company will review all complaints, but please note, the Company is not obligated to remove User Content, an Account, or Associated Account that violates the Agreement, nor do these rules create any third party rights or any private right of action.
The Company does not accept or consider unsolicited ideas, Including ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans or new product names. Please do not submit any unsolicited ideas, suggestions or other works (“Submissions”) in any form to the Company or any of its employees. This policy is in place to avoid potential misunderstandings or disputes when the Company’s products, services or marketing strategies might appear similar to ideas submitted to the Company. If, despite our request that You not submit your ideas, you still submit them, then regardless of what Your letter says, the following terms shall apply to Your Submissions. You agree that:
(i) Your Submissions and their contents will automatically become the property of the Company, without any compensation to you;
(ii) the Company may use or redistribute the Submissions and their contents for any purpose and in any way;
(iii) there is no obligation for the Company to review the Submission;
(iv) there is no obligation to keep any Submissions confidential; and
(v) the Company may file for patents, trademarks, copyrights or other intellectual property protection on intellectual property (inventions, creative works, etc.) shown or described within Your Submission, and You agree that, upon the request and at the expense of the Company, You will execute and deliver any papers, make all rightful oaths, and perform all other lawful acts deemed necessary or desirable by the Company, and its legal representatives, to secure, maintain, and enforce patent or other intellectual property protection, and for vesting title to such intellectual property in the Company.
The Company does, however, welcome and appreciate Your feedback regarding many areas of the Company’s existing business. If you would like to send the Company Your feedback, please provide only specific feedback on the Company’s existing products or marketing strategies; do not Include any ideas that the Company’s policy will not permit it to accept or consider. Any feedback You provide shall be deemed to be non-confidential. The Company shall be free to use such information on an unrestricted basis.