Terms & Conditions of USE

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Terms & Conditions


 

1. INTRODUCTION

1.1. Introduction:

(a) These Terms & Conditions shall govern the use of Hub IQ, LLC’s Services, hereafter referred to as “Services”. Hub IQ, LLC will hereafter be referred to as both “Hub IQ” and “Provider”.

(b) If a person registers for the Services through Hub IQ’s website, or if a person becomes a registered user by logging in to an assigned account created by Hub IQ, then that person must expressly agree to these Terms & Conditions. A registered person will hereafter be referred to as “User”.

(c) By using the Provider’s Services, the User accepts these Terms & Conditions in full; accordingly, if the User disagrees with these Terms & Conditions or any part of these Terms & Conditions, then the User must not use the Services.

(d) The User must be at least 16 years of age to use our Services; by agreeing to these Terms & Conditions, the User warrants and represents to the Provider that the User is at least 16 years of age.

(e) The Provider’s Services utilize cookies; by using the Services or agreeing to these Terms & Conditions, the User consents to the Provider’s use of cookies in accordance with the terms of our Privacy Policy.

(g) By accepting these Terms & Conditions, the User permits the Provider to display the name and/or logo for the User’s company or organization on the Provider’s website, for the sole purposes of listing or referencing companies and organizations that have used the Provider’s Services.

1.2. Interpretation: In these Terms & Conditions:

(a) Clause headings and other headings are for ease of reference only and do not affect the interpretation of the Terms & Conditions;

(b) words in the singular include the plural and vice versa;

(c) a reference to:

(i) personnel includes officers, employees, contractors and agents, but a reference to the User’s personnel does not include the Provider;

(ii) a person includes an individual, a body corporate, an association of persons (whether corporate or not), a trust, a government department, or any other entity;

(iii) a party includes the Provider and the User, and these are jointly referred to as the parties;

(iv) including and similar words do not imply any limit; and

(v) Force Majeure refers to an event that is beyond the reasonable control of a party, excluding an event that could have been avoided by a party taking reasonable steps or reasonable care, or a lack of funds for any reason.

1.3. Copyright Notice

(a) Copyright (c), Hub IQ, LLC.

(b) Subject to the express provisions of these Terms & Conditions:

(i) Hub IQ,LLC, together with our licensors, own and control all the copyright and other intellectual property rights in our website content, social media posts, and Services; and

(ii) all the copyright and other intellectual property rights in our website content, social media posts, and Services are reserved.

 

2. SERVICES

2.1. Services Provided: The Hub IQ Software as a Service (SaaS) is a cloud-based Mobile Engagement Platform that includes, but is not limited to, customizable web applications, mobile content delivery, lead capture, analytics and SMS text messaging.

2.2. General: The Provider must use best efforts to deliver the Services:

(a) in accordance with these Terms & Conditions and the laws of the United States of America;

(b) exercising reasonable care, skill and diligence; and

(c) using suitably skilled, experienced and qualified personnel.

2.3. Non-exclusive: The Provider’s provision of the Services to the User is non-exclusive. Nothing in the Terms & Conditions prevents the Provider from providing the Services to any other person.

2.4. Registration and Accounts

(a) The User may register for an account through the Provider’s website by selecting an available Subscription Service, completing the account registration form, and submitting payment (when applicable) through the shopping cart on the Provider’s website.

(b) The User must not allow any other person to utilize the User’s account to access the Services.

(c) The User must notify the Provider in writing immediately if the User becomes aware of any unauthorized use of the User’s account.

(d) The User must not use any other person’s account to access the Services.

2.5. User Login Details

(a) The User will be asked to choose a username and password when registering for a Subscription Service account through the Provider’s website.

(b) The username must not be liable to mislead and must comply with the content rules set out in Clauses 11.1 and 11.2; The User must not use the account or username for or in connection with the impersonation of any other person.

(c) The User must keep the password confidential.

(d) The User must notify the Provider immediately in writing if the User becomes aware of any disclosure of the
password.

(e) The User is responsible for any activity on the Provider’s Services arising from any failure to keep the password confidential, and may be held liable for any losses arising out of such a failure.

2.6. Availability:

(a) The Provider will use reasonable efforts to ensure the Services are available 24 hours a day, 7 days a week. However, it is possible that on occasion the Services may be unavailable to permit maintenance or other development activity to take place, or in the event of Force Majeure, including natural disasters. The Provider will use reasonable efforts to notify the User with details in advance of any planned unavailability.

(b) Through the use of web services and APIs, the Services interoperate with a range of third party service features. The Provider does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, the Provider may cease to make available that feature to the User. If the Provider exercises its right to cease the availability of a third party feature, the User is not entitled to any refund, discount or other compensation.

 

3. USER OBLIGATIONS

3.1. General Use: The User and its personnel must not:

(a) use the Provider’s Services in any way or take any action that causes, or may cause, damage to the Services or impairment of the performance, availability or accessibility of the Services;

(b) use the Provider’s Services in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;

(c) use the Provider’s Services to post, promote, or transmit any unlawful, harassing, libelous, abusive, threatening, harmful, hateful, or otherwise objectionable material;

(d) use the Provider’s Services to copy, store, host, transmit, send, use, publish or distribute any material which consists of (or is linked to) any spyware, computer virus, Trojan horse, worm, keystroke logger, rootkit or any other malicious computer software;

(e) conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Services without the Provider’s express written consent;

(f) access or otherwise interact with our Services using any robot, spider or other automated means, except for the purpose of search engine indexing;

(g) take any action that imposes an unreasonably or disproportionately large load on the websites, servers, or networks connected to the Services;

(h) sell, rent or sub-license our Services; or

(i) modify, disassemble, decompile, republish, copy, reproduce, or reverse engineer any portion of the Services, and therefore, the entirety of the Services;

3.2. Permitted Content Sharing: Notwithstanding Clause 3.1, the User may share the Provider’s newsletters, blog posts and social media posts in print and electronic form to any person or group.

3.3. Access Conditions: When accessing the Services, the User and its personnel must:

(a) not impersonate another person or misrepresent authorization to act on behalf of others or the Provider;

(b) correctly identify the sender of all electronic transmissions;

(c) not attempt to view, access or copy any material or data other than that to which the User is authorized to access;

(d) neither use the Services in a manner, nor transmit, input or store any Data, that breaches any third party right (including Intellectual Property Rights and privacy rights) or is Objectionable, incorrect or misleading; and

(e) comply with all Terms & Conditions on the Services, as updated from time to time by the Provider.

3.4. Personnel: A breach of any clause in the Terms & Conditions by the User’s personnel is deemed to be a breach of the Terms & Conditions by the User.

3.5. Authorizations: The User is responsible for procuring all licenses, authorizations and consents required for it and its personnel to use the Services, including to use, store and input Data into, and process and distribute Data through, the Services.

 

4. DATA

4.1. Provider Access to Data:

(a) The User acknowledges that:

(i) the Provider may require access to the Data to exercise its rights and perform its obligations under the Terms & Conditions; and

(ii) to the extent that this is necessary, but subject to Clause 7, the Provider may authorize a member or members of its personnel to access the Data for this purpose.

(b) The User must arrange all consents and approvals that are necessary for the Provider to access the Data as described in Clause 4.1a.

4.2. Agent:

(a) The User acknowledges and agrees that to the extent Data contains personal information, in collecting, holding and processing that information through the Services, the Provider is acting as an agent of the User for the purposes of any applicable privacy laws; and

(b) The User must obtain all necessary consents from the relevant individual to enable the Provider to collect, use, hold and process that information in accordance with the Terms & Conditions.

4.3. Backups of Data: While the Provider will take standard industry measures to back up all Data stored using the Services, the Provider suggests that the User also keep a separate back-up copy of all Data uploaded by the User onto the Services.

4.4. Indemnity: The User indemnifies the Provider against any liability, claim, proceeding, cost, expense (including the actual legal fees charged by the Provider’s solicitors) and loss of any kind arising from any actual or alleged claim by a third party that any Data infringes the rights of that third party (including Intellectual Property Rights, Privacy Rights and Copyright law) or that the Data is Objectionable, incorrect or misleading.

 

5. BILLING & SUBSCRIPTION FEES

5.1. Subscription Fees: When selecting a paid Subscription Service through the Provider’s website (as opposed to a free Subscription Service), the User must pay to the Provider the Subscription Fees for use of the Services prior to gaining access to the features associated with that paid subscription. The Subscription Fees:

(a) are billed in monthly, bi-annual or annual Subscription Periods. The User has the ability to select the desired billing Subscription Period;

(b) are subject to change from time to time at the Provider’s discretion. The Provider will make an effort to communicate any upcoming changes to the Subscription Fees to the User via electronic communication (by text message and/or email) prior to the changes taking effect.

5.2. Advanced Billing:  The User will be billed in advance of the Subscription Period so that all services are prepaid prior to usage. Due to advanced billing, the User:

(a) will maintain access of the User’s account upon account cancellation until the end of the current Subscription Period; and

(b) will not receive a monetary refund of any kind upon account cancellation.

5.3. Invoicing: Upon request by the User, the Provider may send the User an invoice via email for payment. The User agrees that:

(a) the User has 10 business days from the invoice issue date to submit payment.

(b) failure to submit full payment within 10 business days could result in account cancellation.

(c) upon permission granted by the User to the Provider to save the User’s credit card information, the Provider may automatically bill the User when the Subscription Fees come due.

 

6. INTELLECTUAL PROPERTY

6.1. Ownership:

(a) Subject to Clause 6.1b, title to, and all Intellectual Property Rights in the Services, Websites, and all Underlying Systems, is and remains the property of the Provider (and its licensors). The User must not dispute that ownership.

(b) Title to, and all Intellectual Property Rights in, the Data (as between the parties) remains the property of the User. The User grants the Provider a worldwide, non-exclusive, fully paid up, transferable, irrevocable license to use, store, copy, modify, make available and communicate the Data for any purpose in connection with the exercise of its rights and performance of its obligations in accordance with the Terms & Conditions.

6.2. Feedback: If the User provides the Provider with ideas, comments or suggestions relating to the Services or Underlying Systems (together feedback):

(a) all Intellectual Property Rights in that feedback, and anything created as a result of that feedback (including new material, enhancements, modifications or derivative works), are owned solely by the Provider; and

(b) the Provider may use or disclose the feedback for any purpose.

6.3. Third Party Websites and Material: The User acknowledges that the Services may link to third party websites or feeds that are connected or relevant to the Services. Any link from the Services does not imply any Provider endorsement, approval or recommendation of, or responsibility for, those websites or feeds or their content or operators. To the maximum extent permitted by law, the Provider excludes all responsibility or liability for those websites or feeds.

6.4. Third Party Intellectual Property Rights Indemnity:

(a) The Provider indemnifies the User against any claim or proceeding brought against the User to the extent that claim or proceeding alleges that the User’s use of the Services in accordance with the Terms & Conditions constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the User:

(i) promptly notifying the Provider in writing of the IP Claim;

(ii) making no admission of liability and not otherwise prejudicing or settling the IP Claim, without the Provider’s prior written consent; and

(iii) giving the Provider complete authority and information required for the Provider to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for the Provider’s account.

(b) The indemnity in Clause 6.4a does not apply to the extent that an IP Claim arises from or in connection with:

(i) the User’s breach of the Terms & Conditions;

(i) use of the Services in a manner or for a purpose not reasonably contemplated by the Terms & Conditions or otherwise not authorized in writing by the Provider; or

(iii) any third party data or any Data.

(c) If at any time an IP Claim is made, or in the Provider’s reasonable opinion is likely to be made, then in defense or settlement of the IP Claim, the Provider may (at the Provider’s option):

(i) obtain for the User the right to continue using the items which are the subject of the IP Claim; or

(ii) modify, re-perform or replace the items which are the subject of the IP Claim so they become non-infringing.

 

7. CONFIDENTIALITY

7.1. Security: Each party (the Provider and the User) must, unless it has the prior written consent of the other party:

(a) keep confidential at all times the Confidential Information of the other party;

(b) effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorized access or use; and

(c) disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of Clauses 7.1a and 7.1b.

7.2. Permitted Disclosure: The obligation of confidentiality in Clause 7.1a does not apply to any disclosure or use of Confidential Information:

(a) for the purpose of performing the Terms & Conditions or exercising a party’s rights under the Terms & Conditions;

(b) required by law;

(c) which is publicly available through no fault of the recipient of the Confidential Information or its personnel;

(d) which was rightfully received by a party to the Terms & Conditions from a third party without restriction and without breach of any obligation of confidentiality; or

(e) by the Provider if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Provider enters into a confidentiality Terms & Conditions with the third party on terms no less restrictive than this Clause 7.

 

8. WARRANTIES

8.1. Mutual Warranties: Each party warrants that it has full power and authority to enter into and perform its obligations under the Terms & Conditions which, when agreed upon, will constitute binding obligations on the warranting party.

8.2. Acknowledgements and Warranty Limitations:

(a) The User acknowledges that the Services, which are comprised of complex software, are never wholly free from defects, errors and bugs; and subject to the other provisions of this Terms & Conditions, the Provider gives no warranty or representation that the Services will be wholly free from defects, errors and bugs;

(b) The User acknowledges that the Services, which are comprised of complex software, are never entirely free from security vulnerabilities; and subject to the other provisions of this Terms & Conditions, the Provider gives no warranty or representation that the Services will be entirely secure;

(c) The User acknowledges that the Services are designed to be compatible only with that software and those systems; and the Provider does not warrant or represent that the Services will be compatible with any other software or systems; and

(d) the Provider makes no representation concerning the quality of the Services and does not promise that the Services will meet the User’s requirements or be suitable for a particular purpose.

8.3. Limitation of Remedies: Where legislation or rule of law implies into the Terms & Conditions a condition or warranty that cannot be excluded or modified by contract, the condition or warranty is deemed to be included in the Terms & Conditions. However, the liability of the Provider for any breach of that condition or warranty is limited, at the Provider’s option, to:

(a) supplying the Services again; and/or

(b) paying the costs of having the Services supplied again.

 

9. LIABILITY

9.1. Unrecoverable Loss: Neither party is liable to the other under or in connection with the Terms & Conditions or the Services for any:

(a) loss of profit, revenue, savings, business, use, data (including Data), and/or goodwill; or

(b) consequential, indirect, incidental or special damage or loss of any kind.

9.2. Unlimited Liability:

(a) Clause 9.1 does not apply to limit the Provider’s liability:

(i) under the indemnity in Clause 6.4a; or

(ii) under or in connection with the Terms & Conditions for:

• personal injury or death;

• fraud or willful misconduct; or

• a breach of Clause 7.

(b) Clause 9.1 does not apply to limit the User’s liability:

(i) to pay the Subscription Fees; or

(ii) for those matters stated in Clause 9.2aii.

9.3. No Liability for Other’s Failure: Neither party will be responsible, liable, or held to be in breach of the Terms & Conditions for any failure to perform its obligations under the Terms & Conditions or otherwise, to the extent that the failure is caused by the other party failing to comply with its obligations under the Terms & Conditions, or by the negligence or misconduct of the other party or its personnel.

9.4. Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Terms & Conditions.

 

10. SUSPENSION, TERMINATION AND CANCELLATION

10.1. Restriction, Suspension and Termination of Services: The Provider may restrict, suspend and/or terminate the User’s account and access to the Services at any time in the Provider’s sole discretion without notice or explanation. Reasons for such action may include, but are not limited to, instances when the User (including any of its personnel):

(a) undermines, or attempts to undermine, the security or integrity of the Services;

(b) uses, or attempts to use, the Services:

(i) for improper purposes; or

(ii) in a manner, other than for normal operational purposes, that materially reduces the operational performance of the Services; or

(c) has otherwise materially breached the Terms & Conditions (in the Provider’s reasonable opinion).

In the event of access restriction, suspension, or termination, the User must not circumvent or bypass, or attempt to circumvent or bypass, any access restriction measures on the Provider’s Services.

10.2. Cancellation of Services: The User may cancel the Subscription Services at any time using the My Account panel on the customer dashboard. However, the User remains subject to Clause 5.2.

10.3. Termination Rights of Terms & Conditions:

(a) Either party may, by notice to the other party, immediately terminate the Terms & Conditions if the other party:

(i) breaches any material provision of the Terms & Conditions and the breach is not:

• remedied within 10 days of the receipt of a notice from the first party requiring it to remedy the breach; or

• capable of being remedied;

(ii) becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason; or

(iii) is unable to perform a material obligation under the Terms & Conditions for 30 days or more due to Force Majeure; and

(b) If the remedies in Clause 6.4c are exhausted without remedying or settling the IP Claim, the Provider may, by notice to the User, immediately terminate the Terms & Conditions.

10.4. Consequences of Termination or Cancellation of the Terms & Conditions:

(a) Termination or cancellation of the Terms & Conditions does not affect either party’s rights and obligations that accrued before that termination or cancellation;

(b) On termination or cancellation of the Terms & Conditions, the User must pay all Fees for Services provided prior to that termination or cancellation;

(c) Except to the extent that a party has ongoing rights to use Confidential Information, at the other party’s request following termination or cancellation of the Terms & Conditions, a party must promptly return to the other party or destroy all Confidential Information of the other party that is in the first party’s possession or control; and

(d) At any time prior to 30 days after the date of termination or cancellation, the User may request:

(i) a copy of any Data stored using the Services, provided that the User pays the Provider’s reasonable costs of providing that copy. On receipt of that request, the Provider must provide a copy of the Data in a common electronic form. The Provider does not warrant that the format of the Data will be compatible with any software; and/or deletion of the Data stored using the Services, in which case the Provider must use reasonable efforts to promptly delete that Data.The Provider is not required to comply with Clause 10.4di to the extent that the User previously requested deletion of the Data.

10.5. Obligations Continuing: Clauses which, by their nature, are intended to survive termination or cancellation of the Terms & Conditions, including Clauses 6, 7, 9, 10.4, 10.5 and 16, continue in force.

 

11. USER CONTENT LICENSE AND RULES

11.1. User Content License:

(a) In these Terms & Conditions, “User content” means all works and materials (including without limitation text, graphics, images, audio material, video material, audio-visual material, scripts, software and files) that the User submits for storage or publication on, processing by, or transmission via, the Services;

(b) The User grants to the Provider a worldwide, irrevocable, non-exclusive, royalty-free license to store, use, reproduce, translate, distribute and publish User content on and in relation to the Services;

(c) The User grants to the Provider the right to sub-license the rights licensed under Section 11.1b;

(d) The User grants to the Provider the right to bring an action for infringement of the rights licensed under
Section 11.1b;

(e) The User hereby waives all of the User’s moral rights in User content to the maximum extent permitted by applicable law; and the User warrants and represents that all other moral rights in User content have been waived to the maximum extent permitted by applicable law;

(f) The User may edit User content to the extent permitted using the editing functionality made available
on the Services; and

(g) Without prejudice to our other rights under these Terms & Conditions, if the User breaches any provision of these Terms & Conditions in any way, or if the Provider reasonably suspects that the User has breached these Terms & Conditions in any way, the Provider may delete, unpublish or edit any or all of User content.

11.2. User Content Rules:

(a) The User warrants and represents that User content will comply with these Terms & Conditions.

(b) User content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).

(c) User content, and the use of User content by the Provider in accordance with these Terms & Conditions,
must not:

(i) be libelous or maliciously false;

(ii) be obscene or indecent;

(iii) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;

(iv) infringe any right of confidence, right of privacy or right under data protection legislation;

(v) constitute negligent advice or contain any negligent statement;

(vi) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;

(vii) be in contempt of any court, or in breach of any court order;

(viii) be in breach of racial or religious hatred or discrimination legislation;

(ix) be blasphemous;

(x) be in breach of official secrets legislation;

(xi) be in breach of any contractual obligation owed to any person;

(xii) depict violence in an explicit, graphic or gratuitous manner;

(xiii) be pornographic, lewd, suggestive or sexually explicit;

(xiv) be untrue, false, inaccurate or misleading;

(xv) consist of or contain any instructions, advice or other information which may be acted upon and could, if acted

(xvi) cause illness, injury or death, or any other loss or damage;

(xvii) constitute spam;

(xviii) be offensive, deceptive, fraudulent, threatening, abusive, harassing, anti-social, menacing, hateful, discriminatory or inflammatory; or

(xix) cause annoyance, inconvenience or needless anxiety to any person.

(xx) contain instructions or materials for the assembly of bombs or other weapons.

(xxi) promote or display illegal drugs or drug contraband.

 

12. SPAM AND COMPLIANCE

12.1. Zero-Tolerance:  Hub IQ has a zero-tolerance policy toward spam. Although Hub IQ does not assume the duty or obligation to monitor emails, text messages or push notifications, Hub IQ reserves the right, in its sole and absolute discretion, to monitor any and all emails, text messages and push notifications created or sent by the User or any third party at any time without prior notice to ensure that they conform to guidelines and policies pertaining to these Terms & Conditions.

12.2. Spam Definition: Spam is any type of unsolicited message. The User should not assume that an existing relationship with any message recipient constitutes permission to send messages. For example, if a customer disclosed an email address or mobile phone number in the course of business but did not give you specific permission to send messages, you cannot send messages to that email or phone number. Offenders may be subject to penalties according to local, state, and/or federal law. Before using Hub IQ’s Services, you agree to review and abide by the following linked resources and to check for any revisions, as they may be amended over time.

• TCPA

• CAN-SPAM Act

• MMA

• CTIA

• CRTC (for sending messages to Canada)

12.3. Text Messages: All outgoing text messages sent using our Services must contain “Reply STOP to OptOut” in the message. The User must immediately cease from sending any further messages to any subscribers who have opted out.

12.4. Truthful Identity: The User agrees to represent truthfully the User’s identity, organization, product or service, availability, pricing, benefits, and any other offering aspects to the User’s subscribers in all messages.

12.5. Content and Promotion Laws: The User agrees to comply with all local, state, and federal regulations as well as general practices governing User content or promotion type.

 

13. CONSENT AND IMPORTING

13.1. Consent: As required by law, all email and text message recipients must be clearly and fully notified of (1) the collection of their contact information, (2) the purpose of its collection, and (3) the use of their contact information, and they must give explicit consent prior to receiving a User’s call or message. The required record of consent differs depending on the nature of the User’s message. Solicitation messages require prior WRITTEN consent. The User must obtain consent even if the User has had prior business relations with the recipients. Purchasing a product or service from the User, participating in an event with the User, or “liking” or “following” a User’s business on social media does not constitute consent to receiving messages from the User. If the User requires confirmations of opt-ins to the User’s service but does not receive a response from a given contact, the User does not have sufficient consent and may not send messages to that contact.

13.2. Importing: The User agrees to import, add, edit, access or otherwise use only contact lists for which all listed parties have opted in to receive correspondence from the User (“Permission-Based Lists”) in connection with User’s use of the Services. The User hereby covenants that the User shall not use any other lists in connection with User use of the Services. In the event that the User imports or adds a subscriber with email addresses or phone numbers, the User must be able to provide tangible proof upon request that the subscriber being imported or added has given prior express written consent to be added to User’s lists and to receive solicitation messages from the User. Written consent may be granted when a subscriber is clearly and fully notified of the collection of their contact information and agrees in writing that he or she may be contacted through their collected contact information. Prior express written consent can be obtained in hand written form or via email, website form, text message, or other methods in compliance with the E-SIGN Act.

13.3. Third Party Lists: The User agrees that the User will not access or otherwise use any third party list of email addresses or phone numbers or otherwise engage in unsolicited messaging in connection with the Services.

 

14. INFORMATION SHARING

14.1    The Provider does not share, sell, or rent any contact information with any party. The User is not allowed to share, sell, or rent any of the User subscribers’ contact info with any third party for any reason.

14.2    The Provider may, however, use or disclose information, including User personal information and User subscribers’ contact information, under the following very limited circumstances:

(a) to provide the User with products and services requested by the User;

(b) to anticipate and resolve problems and conflicts with the Services;

(c) for verification and authentication purposes in regards to requests or changes of any personal information or data related;

(d) for other purposes communicated to the User at the time the User provides or authorizes the use of User information;

(e) to enforce the Provider’s Terms & Conditions and/or Privacy Policy or other legal agreements;

(f) to outsource any of the tasks referenced in our Terms & Conditions and/or Privacy Policy, such as customer service;

(g) in response to a subpoena, court order, or other legal process;

(h) to establish or exercise our legal rights or defend against legal claims;

(i) to share with a company controlled by, or under common control with the Provider for any purpose permitted by our Terms & Conditions or Privacy Policy;

(j) when the Provider believes such use or disclosure is (a) necessary in order to investigate, prevent, or take action regarding suspected illegal activities, fraud, or situations involving potential threats to the physical safety of any person, or (b) required by law; and/or

(k) In the event of a merger, acquisition, consolidation, divestiture, or bankruptcy of the Provider.

 

15. DISPUTES

15.1. Mediation: Any issue, claim or dispute that may arise out of or in connection with these Terms & Conditions and which User and Provider are not able to resolve themselves by negotiation, shall be in the first instance submitted to mediation in a manner agreed to by User and Provider. User and Provider agree to use mediation to attempt to resolve such an issue, claim or dispute prior to filing any legal proceedings in court. User and Provider will select an independent mediator agreeable to both parties. The mediator will communicate with the parties to arrange and convene the mediation process that will be most efficient, convenient and effective for both parties. The costs of the mediation and fees of the mediator will be borne equally by User and Provider. The parties will cooperate with the mediator in coming to reasonable terms and conditions on the mediation arrangements which will include the time and place for conducting the mediation, who will attend or participate in the mediation and what information and written material will be exchanged before the mediation. The mediation will be conducted at a place agreeable to both User and Provider.

15.2. Obligations Continue: Each party must, to the extent possible, continue to perform its obligations under the Terms & Conditions even if there is a dispute.

 

16. GENERAL

16.1. Force Majeure: Neither party is liable to the other for any failure to perform its obligations under the Terms & Conditions to the extent caused by Force Majeure, provided that the affected party:

(a) immediately notifies the other party and provides full information about the Force Majeure;

(b) uses best efforts to overcome the Force Majeure; and

(c) continues to perform its obligations to the extent practicable.

16.2. Third Party Rights: No person other than the Provider and the User has any right to a benefit under, or to enforce, the Terms & Conditions.

16.3. Waiver: To waive a right under the Terms & Conditions, that waiver must be in writing and signed by the waiving party.

16.4. Independent Contractor: Subject to Clause 4.2, the Provider is an independent contractor of the User, and no other relationship (e.g. joint venture, agency, trust or partnership) exists under the Terms & Conditions.

16.5. Notices: A notice given by a party under the Terms & Conditions must be delivered to the other party via email. If no confirmation of receipt is given via email from the receiving party on a notice of termination, then the notice of termination must also be delivered in writing (by certified mail) to the receiving party at that party’s last known physical address.

16.6. Severability: Any illegality, unenforceability or invalidity of a provision of the Terms & Conditions does not affect the legality, enforceability or validity of the remaining provisions of the Terms & Conditions.

16.7. Variation: The Provider may revise these Terms & Conditions from time to time at the Provider’s discretion.

(a) The Provider will give the User notice by email of any revision of these Terms & Conditions, and the revised Terms & Conditions will apply to the use of the Services from the date that the Providers gives such notice to the User; if the User does not agree to the revised Terms & Conditions, then the User must stop using the Services.

16.8. Entire Terms & Conditions: These Terms & Conditions, including the Provider’s Privacy Policy, set out everything agreed upon by the parties relating to the Services, and together these supersede and cancel anything discussed, exchanged or agreed upon prior to the initial use of the Services by the User.

16.9. Subcontracting and Assignment:

(a) The User may not assign, novate, subcontract or transfer any right or obligation under the Terms & Conditions without the prior written consent of the Provider. The User remains liable for its obligations under the Terms & Conditions despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.

(b) Any change of control of the User is deemed to be an assignment for which the Provider’s prior written consent is required under Clause 16.9a. In this Clause change of control means any transfer of shares or other arrangement affecting the User or any member of its group which results in a change in the effective control of the User.

16.10. Law: These Terms & Conditions are governed by, and must be interpreted in accordance with, the laws of the State of Utah in the United States of America. Each party submits to the non-exclusive jurisdiction of the Courts of the State of Utah in the United States of America, in relation to any dispute connected with the Terms & Conditions.