1. The Services. In exchange for your payment of the fees set forth on the GivBee, LLC (hereafter referred to as “GivBee” or the “Company”) websites including, but not limited to, GivBee.com, DPText.org (collectively the “Sites”). Company will provide the services described on the Company Site (the “Services”).
2. Modifications to This Agreement. You agree that we may modify this Agreement, or any policy or other terms referenced in this Agreement (collectively, “Additional Policies”) at any time by posting a revised version of the Agreement or such Additional Policy on the Company Website. Any revised terms will become effective thirty (30) days after we post them to the Company Website or, if we provide you a click-through or other means of accepting the revised terms, upon your acceptance. Continued use of the Services after the revised terms become effective constitutes acceptance on your part of such Additional Policies. . IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, PLEASE LEAVE THIS WEBSITE BY CLOSING YOUR INTERNET BROWSER WINDOW NOW. IF YOU DO NOT INTEND ON USING THE SERVICE IN ACCORDANCE WITH THESE TERMS, DO NOT UTILIZE THE SERVICES PROVIDED BY GIVBEE.
3. Term, Termination and Suspension.
(a) Term. The term of this Agreement (“Term”) will commence once you agree to the terms and conditions of this Agreement by clicking the “I Accept” button below and complete the registration process for your Company Services account. The Agreement will remain in effect until terminated by you or us in accordance with Section 3 of this Agreement.
(b) Termination by You for Convenience. You may terminate this Agreement at any time and for any reason or no reason at all, at your convenience, by (i) providing us written notice of termination in accordance with Section 16 or (ii) closing your account for any Service for which we provide an account closing mechanism.
(c) Termination or Suspension by Us Other Than for Cause.
(i) We may suspend your right and license to use any or all Services (and any associated Company Properties), or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time by providing you thirty (30) days’ advance notice in accordance with the notice provisions set forth in Section 16 below.
(d) Termination and Suspension for Cause. We may suspend your right and license to use any individual Service or any set of Services, or immediately terminate this Agreement in its entirety (and, accordingly, your right to use all Services), if:
(i) you attempt a denial of service attack on any of the Services;
(ii) you attempt to hack or break any security mechanism on any of the Services, or we otherwise determine that your use of the Services or the Company Properties poses a security or service risk to us, to any user of services offered by us, to any third party sellers on any of our websites, to any of our or their respective customers, or may subject us or any third party to liability, damages or danger;
(iii) you otherwise use the Services in a way that disrupts or threatens the Services;
(iv) you are in default of your payment obligations for longer than two (2) months;
(v) we determine, in our sole discretion, there is evidence of fraud with respect to your account;
(vi) you use any of the Company Content (as defined in Section 3(a)) or trademarks (as defined in Section 3(b)) other than as expressly permitted herein;
(vii) we receive notice or we otherwise determine, in our sole discretion, that you may be using Company Services for any illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the intellectual property rights of any third party;
(viii)we determine, in our sole discretion, that our provision of any of the Services to you is prohibited by applicable law, or has become impractical or unfeasible for any legal, business or regulatory reason; or
(ix) subject to applicable law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets, failure to continue your business in the normal course, assignment for the benefit of creditors, or if you become the subject of a voluntary or involuntary bankruptcy or similar proceeding related to your liquidation or solvency.
(e) Termination or Suspension with Notice. We may also suspend or terminate your right and license to use any individual Service or any set of Services within thirty (30) days if:
(i) you are in default of any payment obligation with respect to any of the Services or if any payment mechanism you have provided to us is invalid or charges are refused for such payment mechanism, and you fail to cure such payment obligation default or correct such payment mechanism problem within such thirty (30) day period.
(ii) you breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within thirty (30) days of first receiving notice of such breach.
(f) Effect of Suspension or Termination.
(i) SUSPENSION. Upon our suspension of your use of any Services, in whole or in part, for any reason, (i) fees will continue to accrue for any Services that are still in use by you (including fees for Support requests and data storage, if applicable), notwithstanding the suspension; (ii) you remain liable for all fees, charges and any other obligations you have incurred through the date of suspension with respect to the applicable Services; and (iii) all of your rights with respect to the applicable Services shall be terminated during the period of the suspension.
(ii) TERMINATION. Upon termination of this Agreement for any reason: (i) you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; (ii) all of your rights under this Agreement shall immediately terminate; and (iii) you shall immediately return, or if instructed by us, destroy all Company Confidential Information (as defined in Section 10 below) and any Company Properties (if any) then in your possession.
(g) Data Preservation in the Event of Suspension or Termination.
(i) SUSPENSION OTHER THAN FOR CAUSE. In the event of a suspension by us of your access to any Service for any reason other than a for cause suspension under Section (d), during the period of suspension, (i) we will not take any action to intentionally erase any of your data stored on the Services and (ii) applicable Service data storage charges will continue to accrue.
(ii) SUSPENSION OR TERMINATION FOR CAUSE. In the event of a suspension by us of your access to any Service for any reason for cause under Section (d), during the period of suspension, (i) we will not take any action to intentionally erase any of your data stored on the Services and (ii) applicable Service data storage charges will continue to accrue. If we elect to terminate the Agreement for cause under Section 3(d), we agree that we will not take any action to intentionally erase any of your data stored on the Services for a period of thirty (30) days after the effective date of termination; your post-termination retrieval of data stored on the Services will be conditioned on your prompt and immediate payment of any remaining balances, Service data charges, or any fees incurred, pro-rated for the month. Thereafter, we shall have no obligation to continue to store your data.
(iii) TERMINATION BY YOU. In the event you choose to terminate any Service or any set of Services, or choose to terminate this Agreement in its entirety, you agree that you will notify us in writing. You will be obligated to pay for the remaining balance owed under this Agreement, unless you provide us with at least thirty (30) days’ written notice prior to the effective termination date. Upon receipt of notice by you, (i) we agree that we will not take any action to intentionally erase any of your data stored on the Services for a period of thirty (30) days after the effective date of termination; and (ii) your post-termination retrieval of data stored on the Services will be conditioned on your prompt and immediate payment of any remaining balances, Service data charges, or any fees incurred, pro-rated for the month. Thereafter, we shall have no obligation to continue to store your data.
4. Authorization and License to Use the Services. Subject to your acceptance of and compliance with this Agreement and with the payment requirements for the Services that are set forth on the applicable Service detail page on the Company Website (as such payment terms may be updated from time to time), we hereby grant you a limited, non-exclusive and non-transferable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement.
(a) Permitted Uses Generally.
(i) APPLICATION AND WEBSITE DEVELOPMENT. You may write or develop software, websites, or other online services or technology that you store in, or that interface with, the Services (collectively “Applications”). Applications include machine images containing software applications, application programming interfaces (“APIs”), libraries, data and associated configuration settings. You acknowledge that we may, from time to time, change, deprecate or republish our own proprietary APIs (as defined in Section 6 below) for any Service or feature of a Service, and that it is your responsibility to ensure that calls you make to any Service are compatible with then-current APIs for the Service. You further acknowledge that we may change or remove features or functionality of the Services at any time.
(ii) END-USER ACCESS. You may enable access and use of Your Content by your end users in accordance with the terms of this Agreement. “Your Content” refers to any Application, data or other content that you may (a) provide to us pursuant to this Agreement, (b) make available to any end users in conjunction with the Services, or (c) develop, or use in connection with the Services. You are responsible for all terms and conditions applicable to Your Content.
(iii) NETWORK REQUESTS. You may make network calls or requests to the Services at any time that the Services are available, provided that, unless otherwise set forth in the Service Terms applicable to any Service, you (or if you build and release an Application, each installed copy of your Application) may not exceed the maximum file size or maximum calls per second limit (if any) set forth in the Service Terms for any particular Service (or, in the event the Service Terms for a Service do not indicate a maximum file size, greater than 40K).
(b) Restricted Uses Generally.
(iii) OTHER PROHIBITED ACTS. In addition to the acts prohibited in Sections 4(b)(i) and 4(b)(ii), Your Data and/or your use of the Services may not: (i) constitute, promote, facilitate or permit gambling; (ii) include, promote or facilitate child pornography or other illegal activities, including without limitation, activities that might be libelous or defamatory, or otherwise malicious or harmful to any person or entity, or that discriminate based on race, sex, religion, nationality, disability, sexual orientation or age; (iii) distribute, share or facilitate the distribution or sharing of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code; or (iv) violate, misappropriate or infringe the intellectual property or other proprietary rights of Company, its affiliates or any third party. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of the Service, use of the Service, or access to the Service, other than as provided within the scope of the Service or if agreed to by written consent from the Company.
(c) Accounts and Keys. Unless otherwise stated in the applicable Service Terms, you may only create one account per email address. When you complete the account creation process, you will be issued unique account identifiers (“Tokens”) and may also add a public key to your account if you plan to utilize public/private key encryption technology. Account Tokens (i) identify your account and (ii) allow you to make requests to Company. Tokens are immutable and will always uniquely identify your particular Company account. If you also choose to utilize public/private key encryption technology, you are responsible for maintaining the secrecy and security of your private key. Additionally, you are fully responsible for all activities that occur under your Tokens, regardless of whether such activities are undertaken by you or a third party. Therefore, you should contact us immediately if you believe that your account has been compromised in any way. You are responsible for maintaining up-to-date and accurate information (including contact information) for your Company account. We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of Your Content or other data which you submit or use in connection with your account or the Services.
5. Acceptable Use Policy and Service Terms. You may only use the Services in accordance with the Acceptable Use Policy described below, and the applicable Service Terms.
You represent and warrant that the owners of the phone numbers you initiate messages to through the GivBee services have consented or otherwise opted-in to the receipt of such messages or emails as required by any applicable law or regulation. You agree that you will include clear opt-out/unsubscribe information on your messages when required to do so by any applicable law or regulation and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association. You further agree that any individuals requesting “opt-out” status shall immediately be taken off your opt-in list and you further agree that you will not initiate any subsequent messages to any individuals after they request opt-out status.
You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages that you create and initiate through the GivBee Services. Without limiting the foregoing, you agree to familiarize yourself with the rules, regulations and legalities of any messages transmitted and the use of data collected, through the GivBee Services, by visiting these websites:
· FTC, http://www.ftc.gov
· FCC, http://www.fcc.gov
· TCPA, TCPA-Rules, TCPA omnibus-declaratory-ruling-and-order
· Do Not Call Registry, http://www.donotcall.gov
The Telephone Consumer Protection Act (“TCPA”), the Federal Trade Commission, the Federal Communications Commission, the Do Not Call list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and SMS or MMS messages. GivBee is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages prior to using the GivBee Sites or Services. You are ultimately responsible to make your own informed decisions regarding messages you send, information you collect and how you apply said rules and regulations to your use of The Service.
You agree to not access or use ANY third party lists for phone numbers or email addresses, or otherwise prepare or distribute unsolicited messages in connection with our service.
(a) You agree to import, add, edit, access or use only lists for which all listed parties have given their express written consent to receive texts from you (“Permission-Based Lists”). You hereby covenant that you shall not use any other lists in connection with your use of GivBee’s services. In addition, it is prohibited to import phone numbers without tangible proof of the subscribers’ explicit consent to receive messages.
(b) You acknowledge and agree that not all messages sent via GivBee’s service will be received by their intended recipients. For example, sending a text to a distribution list may deliver messages to unintended recipients due to the reassignment of mobile numbers. It is your responsibility to keep your lists updated.
(c) You agree to comply with all local, state and federal regulations and general practices governing your specific content or promotion type. Additionally, content affiliated with pornographic or sexually explicit material or alcoholic beverages is prohibited. In particular, alcoholic beverages or entertainment content or promotions targeted to people under 21 years of age may not be sent through the system.
(d) You agree to adopt and maintain this Privacy Policy, which may be modified by GivBee at any time for any reason.
(e) You agree to identify your organization, product and service accurately and not deceive your subscribers/recipients in any message with reference to your identity, offering, availability, pricing, benefits, and any other aspects of your communication.
6. License to Use the Company Properties.
(a) Company Properties. We may make available to you, for your installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (all such materials hereby referred to as the “Company Properties”). Subject to your acceptance of this Agreement, ongoing compliance with its terms and conditions with respect to the subject Service, and payment if and as required for your right to use the subject Service, we hereby grant to you the right to install, copy and use the Company Properties solely in connection with and as necessary for your use of the Services in compliance with our Terms and Conditions. This grant constitutes a limited, non-exclusive, non-transferable license during the Term of this Agreement. Under no circumstances may you transfer or sublicense any rights granted to you under this Section to third parties.
The Company Properties may include, without limitation:
· Product training session materials such as video recordings, audio recordings, demos, screen grabs, emails and documentation;
· Proprietary application programming interfaces (“APIs”);
· Developer tools for use in connection with the APIs;
· Articles and documentation for use in connection with the use and implementation of the APIs or other application materials (collectively, “Documentation”);
· Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service and its related APIs and other technology;
· Other forms of digital content, data, text, images, logos, user interface designs and other creative designs, audio and video (with the Documentation, collectively, “Company Content”);
· Sample source code which we may make available from time to time for use in connection with the Services (“Sample Source Code”); and
· Software libraries created by us in connection with the Services (“Libraries”).
Except as may be expressly authorized under this Agreement:
(i) You may not attempt to, or in any way: modify, alter, tamper with, repair, or otherwise create derivative works of any software included in or accessed via the Company Properties.
(ii) You may not attempt to, or in any way: reverse engineer, disassemble, or decompile the Company Properties or the Services or apply any other process or procedure to derive the source code of any software included in or accessed via the Company Properties.
(iii) You may not edit Documentation in any way that materially alters the meaning of the Documentation or causes the Documentation to become factually incorrect or misleading.
(b) Restrictions With Respect to Use of Marks. Your use of any trademarks, service marks, trade names, logos, and other designations of Company and its affiliates or licensors (collectively “Marks”) shall strictly comply with the following provisions.
You may use the Marks in conjunction with the display of the Company Content and for the purpose of indicating that your Application was created using the Services. You must immediately discontinue use of any Mark as specified by us at any time in writing. We may modify any Marks provided to you at any time, and upon notice, you will use only the modified Marks, and must discontinue use of the old marks. Other than as specified in this Agreement, you may not use any trademark, service mark, trade name or other business identifier of Company or its affiliates unless you obtain Company’s or its affiliates’ prior written consent, which consent shall be at Company’s sole and absolute discretion. In addition, you agree not to misrepresent or embellish the relationship between us and you, for example by implying that we support, sponsor, endorse, or contribute money to you or your business endeavors.
(c) Nonexclusive Rights. The rights granted by Company in this Agreement with respect to the Company Properties, the Marks and the Services are nonexclusive, and Company reserves the right to: (i) act as a developer of products or services related to any of the products that you may develop in connection with the Company Properties or via your use of the Services; and (ii) appoint third parties as developers or systems integrators who may offer products or services which compete with Company or your Application.
7. Uptime, Downtime and Excluded Service Suspensions; Security.
(a) Uptime. Company will use all commercially reasonable efforts to make the Service available with a Service Monthly Uptime Percentage (defined as the percentage of time in the Service Month during which Service is available for your use, not including Excluded Service Suspensions outlined under Section 7(c)) of at least 99% during the Service Month. The Service Month shall be defined as the 30-day period preceding the date on which you claim a Service Credit. If Company does not meet this Service Month Uptime Percentage commitment, you will be eligible to receive a Service Credit as described in Section 7(b). The Service Month Uptime Percentage applies only to the operation of the system and does not apply to downtime due to carrier technical issues or other events that are beyond the control of the Company.
(b) Downtime. In addition to our rights to terminate or suspend Services to you as described in Section 3 above, you acknowledge that your access to and use of the Services may be temporarily suspended for the duration of any unanticipated or unscheduled Downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions.
(c) Excluded Service Suspensions. We shall be entitled, without any liability to you, notwithstanding our Service Monthly Uptime commitments outlined in Section 7(a), to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service, which shall be conducted, where possible, with twenty-four (24) hours prior written notice; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; (c) due to factors that are outside of our reasonable control, including any force majeure event or Internet-wide or telecommunications disruption or related problems beyond the demarcation point of the Services; (d) that are caused by you or any third party; (e) that result from the failure of your equipment, software or other technology and/or third party equipment, software or other technology; (f) that arise from our suspension and termination of your right to use the Services in accordance with this Agreement; or (g) as a result of our determination that any Service is prohibited by law or regulatory reasons (collectively, “Excluded Service Suspensions”).
Without limitation to Section 7(d), we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of disruption due to any Excluded Service Suspensions. To the extent we are able, we will endeavor to provide you email notice of any planned Excluded Service Suspensions in accordance with the notice provisions set forth in Section 16 below and to post updates on the Company Websites regarding resumption of Services (if applicable) following any Excluded Service Suspensions, but shall have no liability for the manner in which we may do so or if we fail to do so.
(d) Security. We strive to keep Your Content secure, but cannot guarantee that we will be successful at doing so, given the nature of the Internet. Accordingly, without limitation to Section 7(c) above and Section 7(b) below, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content and Applications. We strongly encourage you, where available and appropriate, to (a) use encryption technology to protect Your Content from unauthorized access, (b) routinely archive Your Content, and (c) keep your Applications or any software that you use or run with our Services current with the latest security patches or updates. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your Content or Applications.
8. Service Commitments and Service Credits.
(a) Service Commitments. Notwithstanding the Excluded Service Suspensions outlined in Section (c), if the Service Monthly Uptime Percentage for you falls below 99% for the Service Month, you will be eligible to receive a Service Credit equal to 10% of the amount that Company charged you for use of the Service during the monthly billing cycle when the Downtime occurred. We will apply any Service Credits only against future payments otherwise due from you. You may not use Service Credits to receive any refund or other payment from Company. Unless otherwise provided in this Agreement, your sole and exclusive remedy for any Downtime is the receipt of a Service Credit (if eligible) in accordance with the terms of this Agreement or termination of your account.
(b) Credit Request and Payment Procedures. To receive a Service Credit, you must submit your claim via email to support@givbee.com. In order for your claim to be valid, your email must include your account number, the dates and times of each occurrence of Downtime that you claim to have experienced and your server request logs that corroborate your claimed Downtime. In addition, we will not consider a claim for a Service Credit unless we received your claim within thirty (30) days of the most recent Downtime that you claim to have experienced. If your claim is valid and we agree that the Service Month Uptime Percentage is less than 99% for the Service Month, then we will issue the Service Credit to you within one billing cycle following the month in which we receive your claim.
9. Fees.
(a) Service Fees. In consideration of your use of any of the Services, you agree to pay applicable fees for Services in the amounts set forth on the respective Service detail pages on the Company Websites including, but not limited to GivBee.com and DPText.org (including any minimum subscription fees). Fees for any new Service or new Service feature will be effective upon posting by us on the Company Website for the applicable Service. We may increase or add new fees for any existing Service or Service feature, by giving you 30 days’ advance notice. Such notice will be posted on the Company Website on the Service detail page for the affected Service. You agree that you are responsible for checking the Company Website each month to confirm whether there are any new fees and their effective date(s). Fees for custom services and non-standard plans are not always detailed on the GivBee sites. All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, any applicable sales taxes. You will provide such information to us as reasonably required to determine whether we are obligated to collect taxes from you.
(b) Payment. We may specify the manner in which you will pay any fees, and any such payment shall be subject to our general accounts receivable policies then in effect. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, you shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority. For credit card transactions made by an end user, a transaction fee is likely charged to the end user by the payment provider. GivBee does not collect any part of this fee. For the fee amount, consult the payment provider website.
(c) Special Pricing Arrangements. From time to time, we may offer free or discounted pricing for certain Services (each a “Special Pricing Arrangement”). After a Special Pricing Arrangement ends, normal charges will apply. You must comply with any additional terms, restrictions, or limitations (e.g., limitations on the total amount of usage) we impose in connection with the Special Pricing Arrangement, as described on the Service-specific page of the Company Website, if you choose to take part in any Special Pricing Arrangement. You may not sign-up for multiple Company accounts in order to receive additional benefits under a Special Pricing Program. We may immediately terminate any account that we determine, in our sole discretion, is established or used to avoid the terms, restrictions, or limitations applicable to a Special Pricing Arrangement. Any data stored as part of a Special Pricing Program must be actively used.
(d) Additional Fee Information. You are responsible to pay for any message(s) you attempt to send to any number, regardless of whether the message is actually received by the intended recipient. GivBee shall not be responsible for any errors or transmission failures with regard to the charging and collection of funds from your indicated payment method, nor for any actions taken by the provider of the payment method you choose (which could include refusal to authorize the charge). In addition to these Terms, any payments made by you may be subject to the agreement between you and the provider of the payment method. Because GivBee deems uninterrupted service as an important part of customer satisfaction, at its own discretion, it may attempt to collect due fees and payments at later dates, instead of preventing the Service from operating. As between you and GivBee, you are responsible for all charges related to purchases made using your account and payment method, whether or not you authorized such purchases. Standard charges apply to any test messages sent originating from your account.
(e) SMS Credits. SMS Credits are paperless vouchers that are included as part of your plan or as upgrades to your plan and which facilitate the transmission of SMS messages. The transmission of a seemingly-valid SMS message will cause an associated quantity of credits to be debited from your account. You can obtain the real-time status of your SMS credits through the online interface.
Credits that are included as a part of a plan, including any additional credits purchased during your billing cycle as part of an upgrade to your plan, and not used within the purchased plan’s time frame (eg. event texting window, month or year), expire at the end of the billing cycle. Additionally, the value of credits may change over time as the cost of transmission changes, and thus you acknowledge that the number of credits needed to utilize the Services may change correspondingly. Any unused value shall be forfeited upon expiration. All prices and billing increments are subject to change at any time due to fluctuations in market conditions. Notwithstanding the above, GivBee may, in its sole discretion, offer customized plans that provide for individualized terms concerning credit expiration, billing cycles, account maintenance fees and/or other agreed upon terms. The terms of such customized plans will be made known and governed by a separate signed agreement.
(f) Integrated Third-Party Services. GivBee has created integrations with various third-party Payment Providers including: PayPal, Braintree, and SafeSave. If you use such third party services, you are subject to and must adhere to the terms of the applicable Payment Providers’ Terms of Service and other agreements and fees relating to their Service transactions. The Company is not affiliated with any Payment Provider, and neither is the agent or employee of the other, and neither is responsible in any way for the actions or performance (or lack thereof) of the other. The same is true with respect to the Company on the one hand and users who have opted-in to the texting service (“Users”) on the other hand. To the extent that the Service is rendered in conjunction with any other provider of services, the same shall also be true, namely that to the extent that a User of the Service hereunder does so in conjunction with the services of another service provider, such User will be subject to the other service provider’s terms of service, and neither the Company or the other service provider will be considered the agent or employee of the other, and neither will be responsible in any way for the actions or performance (or lack thereof) of the other. These Terms shall not in any way supersede the terms of any other service provider for using their service, nor shall the terms of service of any other service provider supersede the terms of the Terms with respect to the Service.
(g) Other Taxes. You understand that taxing authorities may classify funds raised through the Service as taxable income to You and any beneficiary who will receive funds directly from a campaign and you will pay all fees and taxes associated with the use of the Service.
(h) Cost of collection. You agree that, if permissible by law, you will reimburse the Company for all costs, expenses, and attorneys’ fees that may be incurred to collect payment for those charges related to Services rendered to you.
10. Confidentiality.
(a) Use and Disclosure. You shall not disclose Company Confidential Information during the Term or at any time during the two (2) year period following the end of the Term or this Agreement. As used in this Agreement, “Company Confidential Information” includes all nonpublic information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Company Confidential Information includes, without limitation:
(i) nonpublic information relating to our, or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including any information about or involving beta tests or a product that you obtain as a result of your participation in such beta test);
(ii) third-party information that we are obligated to keep confidential; and
(iii) training session materials such as video recordings, audio recordings, demos, screen grabs, emails and documentation
(iv) the nature, content and existence of any discussions or negotiations between you and us.
Confidential Information does not include any information described in Section 10(b) or any information that you are legally required to disclose provided that you provide us (unless prohibited by applicable law) with prompt written notice of any such request for our Confidential Information so that we may seek a protective order or other relief to prevent or limit the requested disclosure.
(b) Non-Confidential Information. Notwithstanding any other provision in this Agreement, you shall not have any obligation to ensure the confidentiality of any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data or content provided or made available by you hereunder that:
(i) is or becomes publicly available without breach of this Agreement;
(ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party;
(iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or
(iv) can be shown by documentation to have been independently developed by the receiving party without use of the disclosing party’s Confidential Information.
11. Intellectual Property.
(a) Our Services and the Company Properties. Other than the limited use and access rights and licenses expressly set forth in this Agreement, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to: (i) the Services; (ii) the Trademarks and Marks; and (iii) any other technology and software that we provide or use to provide the Services. You do not, by virtue of this Agreement or otherwise, acquire any ownership interest or rights in the Services, the Marks, or other technology and software (including third party technology and software), except for the limited use and access rights described in this Agreement.
(b) Your Applications, Data and Content. Other than the rights and interests expressly set forth in this Agreement, you reserve all right, title and interest (including all intellectual property and proprietary rights) in and to Your Content. We will not disclose Your Content, except: (i) if you expressly authorize us to do in connection with your use of the Services; or (ii) as necessary to provide the Services to you, or to comply with the Agreement or the request of a governmental or regulatory body, subpoenas or court orders.
(c) Non-Assertion. During and after the term of the Agreement, with respect to any of the Services that you elect to use, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our customers, end users, vendors, business partners (including third party sellers on websites operated by or on behalf of us), licensors, sublicensees or transferees, any patent infringement or other intellectual property infringement claim with respect to such Services.
12. Representations and Warranties.
(a) Use of the Services. You represent and warrant that you will not use the Services and/or your Application and Your Content, or otherwise send, upload, post, email, transmit or otherwise make available: (i) in a manner that infringes, violates or misappropriates any rights of us or any third party; (ii) any unsolicited marketing messages, or engage in spamming or other impermissible advertising, marketing or other activities, including, without limitation, any activities that violate anti-spamming laws and regulations, including, without limitation, the CAN-SPAM Act of 2003; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data subject to export limitations, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, and Council Regulation (EC) No 428/2009; (iv) in a way that is otherwise illegal or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise malicious or harmful or discriminatory to any person or entity; (v) any information, products or services, that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); or (vi) any information, products or services, that infringes any patent, trademark, trade secret, copyright or other proprietary rights (Rights) of any party, or that contains any material that contains software viruses, trojan horses, worms, time bombs, cancel-bots or any other harmful/deleterious programs; or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
(b) Applications and Content. You represent and warrant: (i) that you are solely responsible for the development, operation, and maintenance of Your Content, including without limitation, the accuracy, security, appropriateness and completeness of Your Content and all product-related materials and descriptions; (ii) that you have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Content; (iii) that Your Content (a) does not violate, misappropriate or infringe any rights of Company, its affiliates, or any third party, (b) does not constitute defamatory material; does not invade third party rights of publicity or privacy; and/or does not otherwise violate any rights of any third party; and (c) is not designed for use in any illegal activity or to promote illegal activities, including, without limitation, any way that may be harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that Your Content does not contain any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code (collectively “Harmful Components”); (v) Your Content does not (a) mislead others as to the identity of the sender of your messages, impersonate any person or entity; or falsely state or otherwise misrepresent your affiliation with a person or entity; or provide contact details that do not belong to you. (b) forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Service, (c) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service, or attempt to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means, or harvest, or otherwise collect information about others, without their consent; and (vi) to the extent to which you use any of the Marks, that you will conduct your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of Company.
(c) Authorization and Account Information. You represent and warrant that: (i) the information you provide in connection with your registration for the Services is accurate and complete; (ii) if you are registering for the Services as an individual, that you are at least 18 years of age and have the legal capacity to enter into this Agreement; and (iii) if you are registering for the Services as an entity or organization, that (a) you are duly authorized to do business in the country or countries where you operate, (b) the individual clicking “I Accept” on this Agreement and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of your entity, and (c) your employees, officers, representatives and other agents accessing the Services are duly authorized to access the Services and to legally bind you to this Agreement and all transactions conducted under your account.
13. Disclaimer & Limitations on Liability.
(a) General Disclaimer of Warranties. THE MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THIS AGREEMENT (COLLECTIVELY THE “OFFERINGS”) ARE PROVIDED “AS IS” AND AS AVAILABLE. WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE OFFERINGS WILL MEET YOUR REQUIREMENTS, FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE OFFERINGS WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT AS SPECIFIED IN SECTIONS 7 and 8 OF THIS AGREEMENT, WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS, INCLUDING THOSE THAT AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF ANY PAYMENT SERVICES. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. YOU AGREE THAT ANY EFFORTS BY US TO MODIFY OUR SERVICES SHALL NOT BE DEEMED A WAIVER OF THIS GENERAL DISCLAIMER OF WARRANTIES. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SERVICES REMAINS WITH YOU.
(b) No Liability for Your Content and Applications. In addition to the foregoing, we specifically disclaim all liability, and you shall be solely responsible for the development, operation, and maintenance of Your Content and Application(s) and for all materials that appear on or within Your Content and Application(s) housed on the Service.
(c) No Liability for Third Party Websites. The Company Website and/or the Services may contain links to websites that are not under our control (“Third Party Sites”). We are not responsible for the contents or functionality of any Third Party Sites or any website that can be accessed via links on any Third Party Site. We provide these links to you as a convenience and the inclusion of any such links does not constitute or imply our endorsement or validation of any Third Party Site.
(d) Limitations of Liability. NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR INTERRUPTION OF BUSINESS, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH DAMAGES WERE REASONABLY FORESEEABLE TO US, OR WE WERE GROSSLY NEGLIGENT) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES OR ANY ELIGIBLE SERVICE CREDITS IN THE IMMEDIATELY PRECEDING SIX (6) MONTHS, AS OUTLINED IN SECTION 8(b).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
(e) Release, IF YOU HAVE A DISPUTE WITH ONE OR MORE USERS, SUBSCRIBERS, OR TEXT RECIPIENTS, YOU RELEASE US (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
14. Indemnification
(a) General. You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys’ fees), arising out of or in connection with any claim relating to (i) your use of the Services in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, Additional Policies, and/or applicable law, (ii) Your Content, or the combination of either with other applications, content or processes, including but not limited to any claim involving infringement or misappropriation of third-party rights and/or the use, development, design, manufacture, production, advertising, promotion and/or marketing of Your Content, (iii) your violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, your representations and warranties, or (iv) you or your employees’ or personnel’s negligence or willful misconduct.
(b) Notification. We agree to promptly notify you of any claim subject to indemnification; provided that our failure to promptly notify you shall not affect your obligations hereunder except to the extent that our failure to promptly notify you materially prejudices your ability to defend the claim. At our option, you will have the right to defend against any such claim with counsel of your own choosing (subject to a conflicts assessment), and to settle such claim as you deem appropriate, provided that you shall not enter into any settlement without our prior written consent and provided that we may, at any time, elect to take over control of the defense and settlement of the claim.
15. Disputes.
(a) Arbitration. Except as hereinafter provided, any dispute arising under these Terms shall be settled and determined by binding arbitration in Charleston, South Carolina in accordance with the provisions of the Federal Arbitration Act, 9. U.S.C. §§1-16, as amended (the “Federal Arbitration Act”), to the exclusion of state laws inconsistent therewith. The terms of the Commercial Arbitration Rules of the American Arbitration Association (the “Rules”) then in effect shall apply except to the extent they conflict with the express provisions of this paragraph. A single independent arbitrator shall conduct the arbitration. The parties shall endeavor to select the independent arbitrator by mutual agreement. If such agreement cannot be reached within thirty days after a dispute has arisen which is to be decided by arbitration, the selection of the arbitrator shall be made in accordance with the Rules as then in effect. The arbitrator shall be a member of a state bar engaged in the practice of law in the United States or a retired member of a state or the federal judiciary in the United States. The award of the arbitrator shall be based on the evidence admitted and the substantive law of the State of South Carolina (subject to any applicable preemption or supersedence by U.S. federal substantive law) and shall contain an award for each issue and counterclaim. The award shall be made within thirty days following the close of the final hearing and the filing of any post-hearing briefs authorized by the arbitrator, and such award shall set forth in writing the factual findings and legal reasoning for such award. The arbitrator may, in his/her discretion, award to any party specific performance or injunctive relief (the foregoing is not intended to limit GivBee’s access to the courts to the extent provided below). The arbitrator may not change, modify, or alter any express condition, term, or provision of these Terms or the extent the scope of their authority is expressly limited. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding upon the parties and no appeal of any kind may be taken. Judgment may be entered thereon in any court having jurisdiction thereof. Each party shall be entitled to inspect and obtain a copy of non-privileged relevant documents in the possession or control of the other party. All such discovery shall be in accordance with procedures approved by the arbitrator. Unless otherwise provided in the award, each party shall bear its own costs of discovery. The statute of limitations applicable under South Carolina law to the commencement of a lawsuit shall apply to the commencement of arbitration hereunder.
(b) Injunctive Relief; Jurisdiction. Notwithstanding anything to the contrary, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Company’s or any third party’s intellectual property and/or proprietary rights. Any dispute relating in any way to your visit to the Company Website or to products or services sold or distributed by Company or its affiliates in which the aggregate total claim for relief sought on behalf of one or more parties exceeds $10,000 shall be adjudicated in any state or federal court in Charleston, South Carolina and you consent to exclusive jurisdiction and venue in such courts.
(c) Governing Law. By using the Services, you agree that the law of the State of South Carolina, without regard to principles of conflicts of laws, will govern this Agreement and any dispute of any sort that might arise between you and us.
16. Notices. Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally (e. g., notices of updated fees, etc.) will be posted on the Company Website. Notices made by us under this Agreement for you or your account specifically (e. g., notices of breach and/or suspension) will be provided to you via the email address provided to us in your registration for the Services or in any updated email address you provide to us in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
For notices made by you to us under this Agreement and for questions regarding this Agreement or the Services, you may contact Company at GivBee, LLC, 295 Seven Farms Dr., Suite C-162, Charleston, SC 29492.
17. Miscellaneous Provisions.
(a) Third Party Activities. If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.
(b) Severability. If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
(c) Waivers. The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision or any other provision in this Agreement thereafter. All waivers by us must be in writing to be effective.
(d) Entire Agreement. This Agreement incorporates by reference all policies and guidelines posted on the Company Website, including all Additional Policies, and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter. This Agreement may be only be amended or modified by a written agreement signed by an authorized representatives of the Company.
(e) Survival. In the event this Agreement is terminated for any reason, the provisions of this Agreement which by their sense and context should survive any termination of expiration of this Agreement, including without limitation Sections 17(e), 17(f), 3.8, 17(b), 6, 9 (with respect to payments that are accrued but unpaid at the time of termination), and 10 through 14, will survive any such termination.
(f) No Endorsement. You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of your Applications or Your Content.
(g) Relationship. Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between you and us (or any of our affiliates).
(h) Language. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
(i) Force Majeure. We shall not be liable hereunder for any failure or delay in the performance of our obligations under this Agreement if such failure or delay is on account of causes beyond our control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, casualty, government authority, strikes, or acts of God, in which event we shall be excused from our obligations for the period of the delay and for a reasonable time thereafter.
(j) Acknowledgement. By checking the box labeled “By checking this box, I accept GivBee’s Terms of Service” and then clicking the NEXT button, you indicate and agree that you have read this Agreement, understand it, and agree to be bound by its terms and conditions.
(k) Attorney’s Fees. Under any event of litigation or arbitration, including but not limited to any action to compel, enforce award or seek injunctive relief pursuant to this Agreement, the prevailing party shall be entitled to an award of their reasonable attorney’s fees and costs for such proceeding, including any related trial or levels of appeal
