Caddy – Free Second Number (“Caddy”), a service provided by 800.com, Inc., provides its customers (“you”) with enhanced telephony services (collectively the “Service”) as described more fully on the Internet at www.Caddy.com (the “Website”). Caddy reserves the right at its sole discretion to refuse service to anyone for any reason.
In order to use the Service, you must, at your sole expense: (1) provide and be responsible for payment for all equipment necessary to establish a connection to the Internet; (2) provide for access to the Internet and pay any Internet connection service fees associated with such access; (3) supply all phone service features required for your use of the Service; and (4) pay for the Service.
You agree to provide Caddy with accurate and complete registration information, and agree to keep that information updated at all times. Failure to do so constitutes a breach of this TOU.
By registering for the Service, you will receive a password. It is solely your responsibility to keep your account information and password secure. You may not disclose your password to anyone except persons that you have authorized to use your account. You hereby assume all liability of any kind arising out of or related to the use of the Service by such authorized person(s). You hereby expressly release and indemnify Caddy from, and hereby assume all liability and damages of any kind arising out of or related to, all activities conducted through your account on the Service by any persons, whether or not such persons are authorized by you to use the Service. You agree to notify Caddy immediately of any unauthorized use of your account or any other breach of security you know of or suspect. The fees paid by you to Caddy are only for the Service. You are responsible for all charges associated with your telephone, all telephony equipment, long distance charges and charges for connecting to the Internet. You agree that any telephone or other communications mode charges incurred are your sole responsibility. You may be subject to other charges from your phone company in addition to the fees for the Service.
You are solely responsible for all content, data, materials, or information you transmit via the Service (collectively, “Content”). Caddy provides unfiltered services. This means that Content is not routinely reviewed before being transmitted through the Service, and Caddy will have no liability related to the content of any such communications, whether or not arising under the laws of copyright, patent, trade secret, defamation, privacy, obscenity, or otherwise. Furthermore, Caddy shall not be responsible for any unsolicited telephone calls (e.g., telemarketing calls) or calls made by any type of payphones received by you through the Service. Caddy does not control Content accessed, posted, recorded, or otherwise transmitted or received via the Service and does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will Caddy be liable for any Content accessed, retrieved, recorded, heard, posted, or otherwise transmitted or received via the Service, regardless of where or how it originated.
As a user of the Service, you agree to use the Service only for lawful purposes. Use of the Service for transmission, distribution, retrieval, or storage of any information, data, or other material in violation of any applicable law or regulation is prohibited.
You also agree not to use the Service to:
- Use or transmit any material protected by copyright, trademark, trade secret, patent, or other intellectual property right without proper authorization;
- Threaten, harass, defame, embarrass, or distress any other person or group;
- Transmit any unlawful, harmful, defamatory, pornographic, obscene, vulgar or otherwise objectionable messages or material;
- Transmit unsolicited fax or voice advertisements or solicitations (“fax/voice spam”) in violation of federal or state laws, including but not limited to any “do not call” list restrictions;
- Transmit any information in violation of the Patriot Act or which otherwise may be deemed in furtherance of terrorist activity or in breach of the national security of the United States or any other state or nation; or
- Transmit any materials or information in any manner that violates applicable law;
- Abuse payphone compensation;
Reasonable Use Policy. Caddy Services plans are offered on an “unlimited use” and/or “unlimited minutes” basis and (i) may only be used for normal personal use, (ii) are provided only for live dialog between two individuals, and (iii) exclude international calling, which is available for an additional fee. Caddy Services may not be used for any of the following prohibited uses:
- Trunking or forwarding your Caddy number to another phone number capable of handling multiple simultaneous calls, or to a private branch exchange (PBX) or a key system.
- Spamming or blasting (e.g., sending 100 or more bulk messages and/or junk voicemail or faxes simultaneously).
- Bulk call-in lines (e.g., customer support or sales call centers, “hotlines”, 900 numbers, sports-line numbers, etc.).
- Auto-dialing or “predictive” dialing (i.e., non-manual dialing or using a software program or other means to continuously dial or place out-bound calls).
Caddy reserves the right without prior notice to (i) disconnect or suspend your Service if Caddy determines that your use of the Service violates this Reasonable Use Policy, or if you consistently exceeds 1,000 minutes per seat per month or 1 concurrent call at any time per extension, and (ii) to terminate voice calls exceeding 6 hours duration. This Reasonable Use policy also applies to “unlimited” extensions that are limited to 1,000 extensions to each account. Additional extensions may require an additional Caddy account. Caddy may add to, modify or amend the Reasonable Use Policy at any time for any reason in its sole discretion. If Caddy, in its sole discretion, believes that you have violated any of the above restrictions or that you have otherwise violated any applicable law, Caddy may forward the objectionable material, as well as your communications with Caddy and your personally identifiable information, to the appropriate authorities for investigation and prosecution, and may immediately terminate your service without penalty or liability of any kind to Caddy.
Modifications to service
Caddy reserves the right to modify, suspend, or discontinue the Service from time to time with or without notice to you. Caddy shall not be liable to you or any third party if Caddy exercises its right to modify, suspend, or discontinue the Service.
You agree that Caddy, in its sole discretion, has the right to establish limits which Caddy deems reasonable on the number and/or size of messages which you send, receive and/or store in order to prevent any negative impact on the use of the Service by others, and you agree to comply with any such limits which Caddy may establish at its sole discretion from time to time. Caddy assumes no responsibility for the deletion or failure to deliver or store voice or other messages. You also acknowledge and agree that Caddy makes no representation, and does not purport to offer any enhancements, with respect to processing of Caller ID information from incoming callers. Caddy will attempt to display and log caller’s Caller ID information as it is provided to Caddy by its telecommunications network provider(s), but Caddy makes no representations of any kind that such attempts shall be successful.
CADDY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY WITH RESPECT TO BLOCKING OUT CALLER ID INFORMATION IF IT IS PRESENTED TO Caddy AS UNBLOCKED, OR UNBLOCKING SUCH INFORMATION IF IT IS PRESENTED AS BLOCKED, OR IF IT IS OTHERWISE UNAVAILABLE TO Caddy. YOU EXPRESSLY AGREE TO FULLY INDEMNIFY AND HOLD HARMLESS Caddy FROM ANY LIABILITIES PERTAINING TO INAPPROPRIATE OR UNAUTHORIZED USE OF THE CALLER ID INFORMATION, AS WELL AS ANY FAILURE BY Caddy TO BLOCK OUT CALLER ID INFORMATION, IF IT IS PRESENTED TO Caddy AS UNBLOCKED, OR UNBLOCKING SUCH INFORMATION IF IT IS PRESENTED AS BLOCKED, OR IF IT IS OTHERWISE UNAVAILABLE TO Caddy.
You acknowledge that your right to use the Service is subject to the following limitations:
- Your rights to the Service granted under this Agreement are personal to you. You may not sell, assign, or otherwise transfer or agree to transfer all or any portion of those rights without the prior written consent of Caddy, which consent may be withheld for any reason in the absolute discretion of Caddy.
- Caddy reserves the right to terminate accounts which remain inactive for over 30 days, or accounts which, in the sole judgment of Caddy, are used for purposes that are illegal, or which Caddy deems inappropriate or detrimental to Caddy.
- You agree that Caddy, in its sole discretion, reserves the right to modify, suspend, or discontinue the forwarding of your number in order to prevent any negative impact on the use of the Service by others, and you agree to comply with any such limits which Caddy may establish at its sole discretion from time to time.
- You acknowledge that the Service is intended for customary personal use. The Service is not intended for dedicated telecommunications services and in no case is the Service intended for intensive auto-dialing, continuous, or extensive call forwarding, or dedicated telemarketing. You understand that such inappropriate use of the Service may result in immediate cancellation of your account by Caddy without any penalty or liability of any kind to Caddy, and that you will not be entitled to any refund in case your account is canceled thereby.
- You understand that Caddy is limited in the depth of Customer Service that it can provide to customers. Accordingly, telephone-based technical support may not be provided. Caddy will provide email and other support resources on an as-available basis. If you experience a problem with the Service, you can contact support at [email protected].
- You understand you have access to your numbers as long as the numbers are on an active Caddy account. If a number is removed from an active account, or if your account has been terminated for longer than 120 days (4 months), you will lose your number.
- Caddy is not a carrier and is not responsible for issues that arise when porting numbers to or from our service. Our support team will work with you to remedy any issue that may arise to the extent of our capabilities.
- You understand that Caddy may terminate your Service if your telephone number and/or email address ceases functioning at any time and for any reason.
- Any attempt to use the Service other than as provided herein shall be a breach of this Agreement and will subject you to possible legal action and/or fees.
- You acknowledge and agree that you are aware of and will fully abide by the statutory and regulatory rules prohibiting unsolicited fax advertisements set forth in the Telephone Consumer Protection Act of 1991, Federal Consumer Protection Act 47 U.S.C. Paragraph 227, FCC’s rules on unsolicited fax communications, and in any applicable state statutes. Violations may subject you to statutory fines and penalties, and compensatory damages. For further information, see http://www.fcc.gov/cgb/consumerfacts/unwantedfaxes.html. You understand that the Service MAY NOT be used for faxmail spamming campaigns. You expressly agree to fully defend, indemnify, and hold harmless Caddy and its suppliers from any complaints arising out of your use of the Service in violation of any federal or state statutes or regulations. You understand that inappropriate use of the Service may result in immediate cancellation of your account by Caddy, and that you will not be entitled to any refund in case your account is canceled thereby.
Violation of TOU
In the event of any actual, threatened, or potential violation of the letter, spirit, or intent of any of the terms or conditions of this TOU as determined by Caddy in its sole discretion, Caddy reserves the right to suspend or terminate, either temporarily or permanently, any or all services provided to you by Caddy, to block any prohibited activity, or to take any other actions deemed appropriate by Caddy in its sole discretion and without prior notice. With respect to abuse of the limits established from time to time by Caddy on the number and/or size of messages which you send, receive and/or store while using the Service, or the number and/or length of calls you place or receive while using the Service, Caddy also reserves the right to charge abusers of Unlimited Plans at the Pro Plan rates then in effect. Users who violate this TOU may additionally incur criminal and/or civil liability. Caddy may refer violators to civil or criminal authorities for prosecution, and will cooperate fully with applicable government authorities in connection with its investigations of any suspected civil or criminal violations.
YOU AGREE TO INDEMNIFY AND HOLD CADDY AND EACH OF ITS RESPECTIVE SUBSIDIARIES, AFFILIATES, TELECOMMUNICATIONS PROVIDERS, SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF THE USE, SUSPENSION, DISABLEMENT, CANCELLATION, OR TERMINATION OF YOUR ACCOUNT ON THE SERVICE, ANY CONTENT POSTED, RECORDED, TRANSMITTED, OR RELAYED TO OR THROUGH THE SERVICE, YOUR VIOLATION OF THE TOU, OR YOUR VIOLATION OF ANY THIRD PARTY RIGHTS.
Limitation of liability
IN NO EVENT WILL Caddy OR ANY OF ITS RESPECTIVE SUPPLIERS, SERVICE PROVIDERS, OR OTHER THIRD PARTIES AFFILIATED THEREWITH BE LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, SUSPENSION, CANCELLATION, DISABLEMENT, TERMINATION, OR THE RESULTS OF USE OF THE SERVICE, ANY WEB SITES LINKED TO THE SERVICE, THE MATERIALS OR INFORMATION CONTAINED AT ANY OR ALL SUCH SITES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF CADDY OR ANY OF ITS RESPECTIVE SUPPLIERS, SERVICE PROVIDERS, OR OTHER THIRD PARTIES AFFILIATED THEREWITH, ARISING FROM OR RELATING TO THIS AGREEMENT (REGARDLESS OF THE FORM OF ACTION OR CLAIM, (E.G. CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, MALPRACTICE, FRAUD OR ANY OTHER LEGAL THEORY)) IS LIMITED TO FIFTY DOLLARS ($50). APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
Disclaimer of warranties
THE SERVICE IS PROVIDED BY CADDY ON AN “AS IS” BASIS. NEITHER Caddy NOR ITS SUBSIDIARIES, PARTNERS, PROVIDERS, OR AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION AND FUNCTIONALITY OF THE SERVICE OR ANY CONTENT TRANSMITTED OR MADE AVAILABLE BY OR THROUGH THE SERVICE. Caddy DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHERMORE, CADDY DOES NOT WARRANT THAT USE OF THE SERVICE WILL BE UNINTERRUPTED, AVAILABLE AT ANY TIME OR FROM ANY LOCATION, SECURE OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Either you or Caddy may terminate your account at any time. This is your sole and exclusive remedy with respect to any dissatisfaction with the Service, the terms and conditions set forth in the TOU as may be updated from time to time, or any other policies and practices of Caddy now in effect or that may be adopted or modified in the future. You may terminate your account by sending an email to [email protected]. Your account termination will take effect within a reasonable amount of time after Caddy’s receipt of your termination notice. Caddy reserves the right to restrict access to the Service to any user (including you) if it reasonably believes the user has breached this TOU in any way, and may at any time in its sole discretion, with or without notice and with or without cause, immediately deny access to the Service and may remove all account information, voicemail boxes and their contents, and any other content. PLEASE NOTE THAT MONTHLY, BIANNUAL, AND ANNUAL SUBSCRIPTION PAYMENTS FOR THE SERVICE ARE NON-REFUNDABLE AND WILL NOT BE PRORATED REGARDLESS OF USAGE.
The TOU shall be governed by and construed in accordance with the laws of the state of Texas . If any provision(s) of the TOU is found to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Caddy’s failure in any instance to exercise or enforce any right or provision of the TOU shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Caddy in writing. You and Caddy agree that any cause of action arising out of or related to this TOU or the Service must commence within one (1) year after the events giving rise to the cause of action first arose; otherwise, such cause of action is permanently barred. The section titles in this TOU are solely used for the convenience of the parties and have no legal or contractual significance. These terms and conditions constitute the entire agreement between you and Caddy with respect to the subject matter herein and supersede in their entirety any and all prior or contemporaneous oral or written agreements. You may not assign this agreement to any other party.
1.1 Modifications From time to time it may be necessary for the Company to update or revise certain provisions of the TOU. By using the application and accepting the TOU, you agree that the Company may modify the terms of the TOU, including, but not limited to, those terms related to the charges (if any) associated with your use of the application. You are responsible for regularly reviewing the latest version of the TOU, and any additional terms and conditions that may be posted. Your continued use of the application constitutes your agreement to all such terms, conditions, and notices. If you do not agree to the changes proposed by the Company, or to any of the terms in the TOU, your only remedy is to stop using the application.
II. Using The application
2.1 Inappropriate Uses The application must not be used: (a) to store, publish, distribute, or otherwise disseminate unlawful material or information including, but not limited to: threatening, harassing, defamatory, obscene, vulgar, indecent, hateful, objectionable, tortious, libelous, deceptive, or fraudulent information and materials, or information and materials that constitute or give rise to claims of an invasion of another person’s privacy; (b) to conduct any activity that is a violation of any State or Federal law or to request unlawful services or materials; (c) harm minors in any way; (d) impersonate any person or entity, including, but not limited to, the Company employee or representative, or to falsely state or otherwise misrepresent your affiliation with a person or entity; (e) to store, publish, distribute, or otherwise disseminate child pornography or similar material; (f) in the furtherance of any activity that infringes (directly or indirectly) upon the intellectual property rights of others, including, but not limited to, copyrights, trademarks, service marks, trade secrets, and patents; (g) to interfere with any other party’s use and enjoyment of the application; (h) in any way that deliberately degrades or disables the application or any other computer system or to prevent or impede the delivery of any legitimate data; (i) to make inappropriate postings to newsgroups, chat rooms, electronic bulletin boards and any other forum on the application or elsewhere; or (j) by persons under the age of 18 to purchase products without the involvement of a parent or guardian.
You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. Many of the features and information on the application are updated on a real time basis and are proprietary to us or are licensed to the Company by third parties. You agree that you will not copy, reproduce, alter, modify, create derivative works, or publicly display any content (except for content you provide to us) from the application without the prior expressed written permission of the Company or the appropriate third party.
3.1 License The Company grants you a limited license to access and make personal use of the application and not to download (other than page caching) or modify it, or any portion of it, except with the express written consent of the Company. This license does not include any resale or commercial use of the application or its contents; any collection or use of any product listings, descriptions, or prices; any derivative use of this site or its contents; any downloading or copying of account information; or any use of data mining, robots, or similar data gathering and extraction tools. Any unauthorized use terminates the permission or license granted by the Company. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the Company www.Caddy so long as the link does not portray the Company, or its products or services, in a false, misleading, derogatory, or otherwise offensive manner.
The Company does not claim ownership of any information, data, text, communications, software or graphics, music, sound, photographs, video, messages or other materials (each, “Content”) you submit or make available for inclusion on the application. However, with respect to submitted Content you may post on the application, you grant the Company a world-wide, royalty free and non-exclusive license(s) to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such Content on the application solely for the purposes of providing the application services. This license exists only for as long as you elect to continue to include, transmit or store such Content on the application and will terminate at the time you remove or the Company removes such submitted Content from the application. You expressly warrant you have the right to grant this license in any Content you upload, store or transmit to or through the application. If you do not have the right to grant such license, you should not be uploading, storing or transmitting such material, and doing so will be a breach of the TOU. You acknowledge that the Company may or may not pre-screen Content, but that the Company and its designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any Content that is available via the application. Without limiting the foregoing, the Company and its designees shall have the right to remove any submitted Content that violates the TOU or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content. In this regard, you acknowledge that you may not rely on any Content created by, or submitted to the Company.
3.2 Product Submissions The Company receives many inquiries and suggestions regarding new product ideas, but does not accept any unsolicited submissions of new products, creative suggestions, ideas, notes, drawings, concepts or other information (each, “Information”). Although we are honored you would think of us, the Company relies on its employees to supply its new product and other creative ideas. The Company has found it necessary to adopt this policy because some companies in our industry have had claims made against them by people who allege that the company used an idea, even though the company had received only the most general of concepts. Since the employees of the Company are constantly working on a number of ideas in many areas, some of which might be similar to an idea you seek to send to the Company, we cannot accept any outside submissions or the risks associated with these submissions.
If you send the Company any Information despite our request that you do not do so, you agree that any and all Information you send the Company is in the public domain, is not confidential and is sent by you for use by the Company without payment or compensation to you or acknowledgement of the source. For any Information you submit to the Company, you grant the Company a world-wide, royalty free, fully paid-up and non-exclusive license(s) to use, distribute, reproduce, modify and adapt such Information for the sole benefit of the Company. The Company makes no warranty to you, whether express or implied, regarding its use of any Information you may submit to the Company.
3.3 Links The Company may provide, or third parties may provide, links to other World Wide Web sites or resources. Because the Company has no control over such sites and resources, you acknowledge and agree that the Company is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
3.4 The Company’s Intellectual Property Rights The Content provided by the Company (that is, Content other than as submitted by site users) on the application, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of the Company or its content suppliers, partners, or affiliates, and is protected by U.S. and international copyright laws. The compilation of all Content on the application is the exclusive property of the Company and is protected by U.S. and international copyright laws. All software used on this site is the property of the Company or its software suppliers and is protected by U.S. and international copyright laws. You acknowledge and agree that the application contains proprietary and confidential information that is protected by applicable U.S. and international intellectual property and other laws. Except as expressly authorized by the Company, you agree not to modify, rent, license, loan, sell, distribute or create derivative works based on the application, including its interface, in whole or in part, and other logos and product and service names that are trademarks of the Company (the “Company Marks”). Unless you have written permission, you agree not to display or use in any manner, the Company Marks.
3.5 Caddy is the Customer of Record. You acknowledge that Caddy is the “customer of record” for all phone numbers provided as part of our Services excluding numbers that have been ported in. As the customer of record, we have certain rights with respect to porting phone numbers. You understand and agree that you may use the phone numbers provided as part of our Services subject to these Terms. Unless otherwise required by law, we reserve the right to refuse to allow you to port away any phone number in our sole discretion.
IV. WARRANTY AND LIMITATION OF LIABILITY THE APPLICATION IS PROVIDED ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
THE COMPANY SHALL NOT BE LIABLE FOR ANY FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER WHERE SUCH FAILURE RESULTS FROM ANY CAUSE BEYOND THE COMPANY’S REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, MECHANICAL, ELECTRONIC OR COMMUNICATIONS FAILURE OR DEGRADATION. IN NO EVENT SHALL WE OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE APPLICATION, OUR SERVICES, OR THIS AGREEMENT HOWEVER ARISING, INCLUDING NEGLIGENCE. OUR LIABILITY, AND THE LIABILITY OF OUR SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE AMOUNT OF FEES YOU PAID TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO ANY PURPORTED LIABILITY.
You agree, at your own expense, to indemnify, defend and hold harmless the Company and its employees, representatives, subsidiaries, affiliates, officers, directors, suppliers and agents (collectively, the “Company Indemnified Parties”), against any claim, suit, action or other proceeding against the Company Indemnified Parties, by a third party, to the extent that such claim, suit, action or other proceeding is based on or arises in connection with your use of the application (or the use of any of your sub-accounts) specifically including (i) a violation of the terms set forth in the TOU (ii) a claim that any use of the application by you infringes any third party intellectual property right, is libelous or defamatory, or otherwise results in injury or damage to anyone. You agree to pay any and all costs, damages and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by or in connection with or arising from any such claim, suit, action or proceeding attributable to any such claim.
Any legal controversy or legal claim arising out of or relating to this TOU or the application, excluding legal action taken by the Company to collect our fees and/or recover damages for, or obtain an injunction relating to, the Company or the application operations, intellectual property, and our services, shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party, unless in our sole judgment, the Company wishes to consolidate the legal controversy of two or more parties in any legal action. The arbitration shall be conducted in Dallas, Texas, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. The Company may seek any interim or preliminary relief from a court of competent jurisdiction in Dallas, Texas necessary to protect our rights pending the completion of arbitration. Should you file an action contrary to this provision, the Company may recover from you our reasonable attorney fees and costs. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of this site or services or the TOU must be filed within six (6) months after such claim or cause of action arose or be forever barred. Notwithstanding anything else to the contrary in this TOU, the Company shall always have and retain the right to pursue legal action of any kind or nature whatsoever in any appropriate jurisdiction in order to protect our interests.
You agree that the Company may, under certain circumstances and without prior notice, immediately terminate your access to the application and the Company services. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOU or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated termination), (d) discontinuance or material modification to the Company service (or any part thereof), (e) unexpected technical or security issues or problems, and (f) extended periods of inactivity. Termination of your the Company services includes (i) removal of access to all the Company services and the application, (ii) removal of access and deletion of all related information, files and content associated with or inside services provided to you by the Company (or any part thereof), and (iii) barring further use of the application and the Company services. Further, you agree that all terminations for cause shall be made at the Company’ sole discretion and that the Company shall not be liable to you or any third party for any termination of the application or the Company services.
8.1. You and the Company are independent contractors. No agency, partnership, joint venture, or employment is created as a result of this TOU and you do not have any authority of any kind to bind the Company in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
8.2. Savings If any provision of this TOU is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this TOU shall otherwise remain in full force and effect and enforceable.
8.3. Notice Any notice by us to you may be made at our option via a posting on the Company site or via email or first class mail. It is your responsibility to check the application from time to time for updates. Your continued use of the application constitutes your agreement to and acceptance of this TOU and any changes to it.
8.4. Choice of Law, Compliance with Applicable Laws If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The laws of the State of Texas, excluding its conflicts-of-law rules, govern the TOU and your account. User conduct may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction and venue for any claim or dispute with the application or relating in any way to your account or your use of the application resides in the courts of Dallas County, Texas, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of Texas in connection with any such dispute including any claim involving the Company or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers. You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to the application any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software. This assurance and commitment shall survive termination of this TOU. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes any portion of this site or access to the application or our services.