Last Updated: 09/27/2017
These Site Terms (“Terms”) govern your access to, and use of, the websites (collectively, the “Sites”) that are owned or operated by MessageYes, Inc. (“MessageYes,” “we” or “us”). These Terms do not alter in any way the terms or conditions of any other agreement you may have with MessageYes for products, services or otherwise. If you are using the Sites on behalf of an entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf, and that such entity agrees to be responsible to MessageYes if you violate these Terms.
MessageYes reserves the right to change or modify these Terms at any time and in our sole discretion. If MessageYes makes any changes to these Terms, we will provide notice of such changes, such as by updating the “Last Updated” date at the top of these Terms. Your continued use of the Sites will confirm your acceptance of the revised Terms. We encourage you to frequently review our Terms to ensure that you understand the terms and conditions that apply to your access to and use of the Sites. If you do not agree to any amended Terms, you must immediately stop using the Sites.
Enforcement of these Terms is solely in MessageYes’ discretion, and the absence of enforcement of these Terms in some instances does not constitute a waiver of MessageYes’ right to enforce these Terms in other instances. Any use of the Sites in violation of these Terms may result in, among other things, termination or suspension of your right to use the Sites. These Terms constitute the entire agreement between you and MessageYes relating to your access to and use of our Sites.
The Sites are not targeted towards, nor intended for use by, anyone under the age of 18. By accessing or using the Sites, you represent and warrant that you (a) are 18 years of age or older; (b) have not been previously suspended or terminated from the Sites; and (c) have full power and authority to enter into these Terms and that, in doing so, you will not violate any other agreements to which you are a party.
3. Copyright and Limited License
(a) Unless otherwise indicated on the Sites or by MessageYes, the Sites and all content and other materials therein, including, without limitation, the MessageYes logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Site Materials”) are the proprietary property of MessageYes or our licensors or users and are protected by U.S. and international copyright laws.
(b) MessageYes grants you a limited, non-transferable, non-exclusive, non-sublicensable license to access and use the Sites and Site Materials; however, such license is subject to these Terms and, except as permitted under applicable law, does not include (i) any resale or commercial use of the Sites or Site Materials; (ii) distributing, publicly performing or public displaying any Site Materials; (iii) modifying or otherwise making any derivative uses of the Sites or Site Materials, or any portion thereof; (iv) using any data mining, robots or similar data gathering or extraction methods; (v) downloading (other than the page caching) of any portion of the Sites, Site Materials or any information contained therein, except as expressly permitted on the Sites; and (vi) using the Sites or Site Materials other than for their intended purposes. Any use of the Sites or Site Materials other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use also may violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein or otherwise by MessageYes, nothing in these Terms will be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time.
(c) Notwithstanding anything to the contrary in these Terms, the Sites and Site Materials may include software components provided by MessageYes or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
“MessageYes” and the MessageYes logo and any other MessageYes product or service names, logos or slogans that may appear on the Sites are trademarks of MessageYes or its licensors in the United States and in other countries, and may not be copied, imitated or used, in whole or in part, without the prior written permission of MessageYes or the applicable trademark holder. You may not use any metatags or other “hidden text” utilizing “MessageYes” or any other name, trademark, or product or service name of MessageYes without our prior written permission. In addition, the look and feel of the Sites, including all page headers, custom graphics, button icons and scripts, are the service mark, trademark and/or trade dress of MessageYes and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product or service names, logos or slogans mentioned on the Sites are the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by MessageYes.
5. Third-Party Content
MessageYes may provide third-party content on the Sites and may provide links to web pages and content of third parties (collectively, “Third-Party Content”) as a service to those interested in this information. MessageYes does not control, endorse or adopt any Third-Party Content and makes no representation or warranties of any kind regarding the Third-Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that, to the maximum extent permitted by applicable law, MessageYes is not responsible or liable in any manner for any Third-Party Content and undertakes no responsibility to update or review any Third-Party Content.
6. Interactive Demonstrations
You may sign up through our Sites to participate in an interactive demonstration of MessageYes’ message-based commerce platform (a “Demo”). If you choose to participate in Demo, we will send you SMS messages with sample offers to the mobile phone number you provided simulating a typical interaction with a customer in order to demonstrate the capabilities of MessageYes’ platform. By opting-in to participate in the Demo, you (a) represent and warrant that the mobile phone number you provide is the phone number for a device that is controlled by you and not for a device owned or controlled by a third party, (b) agree to notify us if the mobile phone number you provide ceases to be a phone number for a device controlled by you, (c) consent to receive text messages sent by MessageYes to the number you provide for purposes of the Demo, which text messages are for marketing purposes and may be sent by an automated dialer. You will not be able to make any purchases through the Demo and the Demo is solely to provide information to you about MessageYes’ products, services and platform capabilities.
7. Acceptable Use of the Sites
You agree that your access to and use of the Sites will not violate any law, contract, intellectual property or other third-party rights or constitute a tort, and that you are solely responsible for your conduct while on the Sites. You further agree that you will abide by these Terms and will not:
- Use the Sites in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites, or that could damage, disable, overburden or impair the functioning of the Sites in any manner;
- Send any unsolicited or unauthorized advertising, solicitations, promotional materials, spam, junk mail, chain letters or pyramid schemes, or harvest or collect the email addresses or other contact information of other users from the Sites for the purpose of sending spam or other commercial messages;
- Use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Sites or to extract data;
- Submit or otherwise transmit any viruses, worms, Trojan horses, defects or other items that may disrupt, harm, destroy or take control of all or any part of the Sites;
- Reverse engineer any aspect of the Sites or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Sites (except as otherwise expressly permitted by law);
- Attempt to circumvent any content filtering techniques we employ, or attempt to access any service or area of the Sites that you are not authorized to access;
- Attempt to indicate in any manner that you have a relationship with us or that we have endorsed you or any products or services for any purpose;
- Engage in any harassing, intimidating, predatory or stalking conduct;
- Develop any third-party applications that interact with the Sites without our prior written consent; or
- Use the Sites for any illegal or unauthorized purpose or engage in, encourage or promote any activity that violates these Terms.
You may submit questions, comments, suggestions, ideas, notes, original or creative materials or other information or materials about MessageYes and the Sites (collectively, “Feedback”). Feedback, whether submitted through the Sites or otherwise, is non-confidential and will become the sole property of MessageYes. MessageYes will own exclusive rights, including all intellectual property rights, in and to such Feedback and will be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You agree to defend, indemnify and hold harmless MessageYes and our partners, independent contractors, service providers and consultants and our respective directors, officers, employees and agents (individually and collectively, the “MessageYes Parties”), from and against any claims, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of or related to: (a) your use of the Sites; (b) any Feedback you provide; (c) your violation of these Terms; and (d) your violation of the rights of another.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SITES AND SITE MATERIALS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY MESSAGEYES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MESSAGEYES DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES AND SITE MATERIALS. MESSAGEYES DOES NOT REPRESENT OR WARRANT THAT THE SITES OR SITE MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.
WHILE MESSAGEYES ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SITES SAFE, MESSAGEYES CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITES OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.
Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.
11. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MESSAGEYES OR THE MESSAGEYES PARTIES, BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OR INABILITY TO USE THE SITES OR SITE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM MESSAGEYES, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO MESSAGEYES’ RECORDS, PROGRAMS OR SERVICES. IN NO EVENT WILL THE AGGREGATE LIABILITY OF MESSAGEYES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITES EXCEED ONE HUNDRED U.S. DOLLARS ($100). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, NOTHING IN THESE TERMS EXCLUDES OR LIMITS OUR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR FOR FRAUD.
12. Dispute Resolution; Arbitration
With the exception only of disputes related to the enforcement or validity of MessageYes’ intellectual property rights, all disputes, controversies or claims arising out of or relating to these Terms, will be resolved through confidential binding arbitration held in Seattle, Washington in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available on the JAMS website and hereby incorporated by reference. You acknowledge and agrees that you have read and understand the rules of JAMS or waived its opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason. You and MessageYes agree that any dispute arising out of or related to these Terms is personal to you and MessageYes and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and MessageYes agree that these Terms affect interstate commerce and that the enforceability of this Section 12 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, these Terms and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. You and MessageYes agree that for any arbitration, the party filing the claim will pay the filing fee and the parties will split the remaining JAMS fees and costs. Judgment upon any arbitration award may be entered and enforced in any court of competent jurisdiction. Otherwise, you and MessageYes agree that the state or federal courts in King County, Washington have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. WITH RESPECT TO DISPUTES SUBJECT TO ARBITRATION PURSUANT TO THIS SECTION 12, BOTH YOU AND MESSAGEYES ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) THOSE DISPUTES IN COURT BEFORE A JUDGE OR JURY.
To the fullest extent permitted by applicable law, you release MessageYes and the other MessageYes Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. You expressly waive any rights you may have under California Civil Code § 1542 as well as any other statute or common law principles that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
14. Governing Law and Venue
These Terms and your access to and use of the Sites will be governed by and construed and enforced in accordance with the laws of the State of Washington, without regard to conflict of law rules or principles (whether of the State of Washington or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, will be resolved in the state or federal courts located in King County, Washington.
15. Modifications to the Sites
MessageYes reserves the right to modify or discontinue, temporarily or permanently, the Sites or any content, features or portions thereof at any time without prior notice and without obligation or liability to you. You agree that MessageYes will not be liable for any modification, suspension or discontinuance of the Sites or any part thereof.
Notwithstanding any of these Terms, MessageYes reserves the right, without notice and in our sole discretion, to terminate your right to use the Sites, or any portion of thereof, and to block or prevent your future access to and use of the Sites or any portion thereof.
If any provision of these Terms are deemed unlawful, void or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.