Personal Information We Collect
Information You Give UsWe collect personal information you give us, such as: Account information. We collect personal information when you create an account, such as your email address and password, as well as your phone number if you provide one to enable two-factor authentication or if you use our telephony service. Account content. If you have a Service account, you can use and store different types of data in the Service, such as photos and videos, files, messages and other content. Transaction information. When you order paid versions of the Service we collect information necessary to complete the transaction, including your name, payment information and billing information. Forum content. You may post messages and other content in help forums or message boards within the Service. This information is stored within the Service and other users can see it. Contact details. We collect the contact details you share with us when you communicate with us, which may include your email address, phone number, postal address or social media handles. Feedback and correspondence. You may share information with us when you respond to surveys, request customer support or otherwise interact with us. Contact details for parties you invite. If you decide to invite someone else to create an account on the Service, we will collect your and the third party’s names and email addresses to send an email and follow up with the third party. You or the third party may contact us at firstname.lastname@example.org to request deletion of the other party’s information. By inviting someone else to use the Service, you confirm that you have that person’s permission to do so. Device data. You may choose to give us permission to access certain data on or components of your device, such as your photos, contacts, microphone and camera. You can always disable this access in your device’s settings.
Sensitive personal informationWe will never ask you to send us or submit to the Service any information related to racial or ethnic origin; political opinions or union membership; religious or other beliefs; your health, biometric or genetic information; information about your sexual preference or sexual orientation; or information about your criminal background.
Information We Collect from Other SourcesWhen you use our My Number Lookup service, you can request that we send you personal information associated with your phone number that we collect from publicly available and commercially available sources. We do not use this information for any purpose other than to provide it to you when you use the service, we do not share it with any third parties (except for our service providers as described below under How We Share Your Personal Information) and we do not retain it for longer than is necessary provide the service.
How We Use Your Personal InformationWe will only use your personal information in ways that are compatible with the purposes listed below for which it was collected or as subsequently authorized by you.
To provide the ServiceWe use your personal information to provide and support the Service. As part of providing the Service we may send you service announcements, technical notices, updates, security alerts and support-related messages through the Service or by email. We may also communicate with you in response to your support requests, questions or feedback.
For research and developmentWe use the information we collect to better understand your interests and the Service, make improvements to the Service and to develop new features and services.
To send you marketing communicationsIf you use the Service, request information from us, or participate in our surveys, promotions or events, we may send you Marketing Automation ltd-related marketing communications. You can always opt out of these communications by following the opt-out instructions in the message or by contacting us.
To create anonymous dataWe may create aggregated and other anonymous data from our users’ personal information. We make personal information into anonymous data by removing information that makes the data personally identifiable to you. We may use this anonymous data and share it with third parties to operate, understand and improve our Service, develop new services and for other lawful business purposes.
For security, compliance, fraud prevention and safetyWe may use your personal information as we believe appropriate to investigate or prevent violation of the law or our Terms of Service; to secure the Service; to protect our, your or others’ rights, privacy, safety or property; and to protect, investigate and deter against fraudulent, harmful, unauthorized, unethical or illegal activity.
For compliance with law; legal claimsWe may use your personal information as we believe appropriate to (a) comply with applicable laws, lawful requests and legal process, such as to respond to subpoenas or requests from government authorities, (b) where permitted by law in connection with a legal investigation and (c) to prosecute or defend legal claims
With your consentIn some cases we may ask for your consent to collect, use or share your personal information with your consent, such as when we request access to your photos or other data through prompts in your mobile operating system.
How We Share Your Personal Information
For compliance with law; legal claims; security, compliance, fraud prevention and safetyWe may disclose information about you as we believe appropriate to government or law enforcement officials or private parties (a) for the security, compliance, fraud prevention and safety purposes described above; (b) as required by law, lawful requests or legal process; (c) where permitted by law in connection with any legal investigation; and (d) to prosecute or defend legal claims.
Business transfersWe may sell, transfer or otherwise share some or all of our business or assets, including your personal information, in connection with a business deal (or potential business deal) such as a merger, consolidation, acquisition, reorganization, sale of assets or in the event of bankruptcy.
Access, correct or deleteIf you have an account, you can access and update the personal information in your profile. Registered users may also contact us to request deletion of your account and personal information. We may request information from you to help us confirm your identity and process your request. Applicable law may require or permit us to decline your request, such as where we need to retain your information for security, compliance, fraud prevention and safety, to comply with law or for legal claims. If we decline your request, we will tell you why, subject to legal restrictions. Once we process your request you will not be able to access your account or use the Service. When we delete any information, it will be deleted from our active database, but where permitted by law, may remain for a period of time in our backup files or other instances where deletion is not practicable.
Marketing communicationsYou may opt out of marketing-related communications by following the opt-out prompt in the message, or by contacting us. You may continue to receive service-related and other non-marketing communications.
SecurityWe use a variety of industry-standard technologies and procedures to help protect your personal information from unauthorized access, use, or disclosure. However, security risk is inherent in all information technology. Thus, while we use reasonable efforts to protect your personal information, we cannot guarantee its absolute security. If you believe the security of the Service or your personal information has been compromised, contact us immediately.
Third Party Sites and ServicesThe Service may link to or integrate with other websites and services operated by third parties, including social media platforms, advertising services and other websites and applications. These links and integrations are not endorsements of, or representations that we are affiliated with, any third party. We do not control third party websites, applications or services and we are not responsible for their actions. Third party websites and services follow different rules regarding their collection, use and sharing of your personal information and we encourage you to read their privacy policies to learn more.
ChildrenThe Service is not directed to anyone under the age of 16. A parent or guardian who becomes aware that a child has used the Service may contact us and we will attempt to delete the child’s personal information as soon as possible.
Cookie NoticeCookies are small data files stored on your computer or mobile device by a website. They transmit information about your use of the site to its operator or to third parties that placed the cookie. Our sites and applications use both session and persistent cookies to enable you to sign in and use our sites and applications, store your preferences and settings within them; analyze how they perform, personalize your experience with them, provide interest-based advertising and for other lawful purposes. We may also use other similar technologies for these purposes, such unique device identifiers, and third party software embedded in our mobile applications. In some cases, these cookies and similar technologies are used by third parties. The cookies and similar technologies used in our sites and mobile applications are as follows:
|Essential||Essential to provide you with services available through our sites and to enable you to use some of their features.We cannot provide the services our users request without them.||None|
|Functionality||Allow our sites to remember the choices you make when you use our sites.Intended to provide you with a more personal experience and to avoid you having to re-select your preferences every time you visit our sites.||None|
|Analytics||Collect information about traffic to our sites and mobile applications, and how our users use them, such as the number of visitors, the websites that referred them, the pages they visited, what time of day they visited, whether they have visited before, what features they used and other similar information. We use this information to help operate and improve our sites and mobile applications.||Google Analytics. Learn more information about Google Analytics cookies here and about how Google protects your data here. You can prevent the use of Google Analytics relating to your use of our sites by downloading and installing the browser plugin available here.|
1. Marketing Automation Service Description.Marketing Automation offers a variety of tools, applications, web services and widgets that allows users to capture, control and manage data and messages on your electronic devices. You can use the Service to intercept messages, move files from one storage location on your device to a restricted storage location, and create backup copies of your data. The Service further includes a virtual private network service (the “VPN Service”) which provides private and secure data transmission.
2. Use of the Service and Marketing Automation Properties.Marketing Automation and its licensors own all rights, title, and interest in the Application, the Software, the Website, the Service, and the information and content available on or through the foregoing (collectively, the “Marketing Automation Properties”). The Marketing Automation Properties are protected by copyright laws throughout the world. Subject to the Terms, Marketing Automation grants you a limited license to reproduce portions of the Marketing Automation Properties for the sole purpose of using the Marketing Automation Properties for your personal, non-commercial purposes. Unless otherwise specified by Marketing Automation in a separate license, your right to use any Marketing Automation Properties is subject to the Terms. Marketing Automation and its licensors reserve all rights not granted in these Terms. 2.1 Application License. Application License. Subject to your compliance with the Terms, Marketing Automation grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal use. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
2.2 Marketing Automation Software.Use of any software and associated documentation, other than the Application, that is made available via the Website or the Service (“Software”) is governed by the Terms. Any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, redistribution or use on a service bureau basis. If the Software is a pre-release version, then you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. Marketing Automation grants you a non-assignable, non-transferable, non- sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Service in the manner permitted by the Terms. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of the Terms.
2.3 VPN Service.VPN Service. The VPN Service has sufficient capacity to accommodate average non-commercial use. However, from time to time during periods of extraordinarily heavy usage of the VPN Service, you may temporarily experience slower service or service unavailability. No such temporary slowdown or unavailability shall constitute a breach or default by Marketing Automation of its obligations. Marketing Automation reserves the right to temporarily suspend or limit your use of the VPN Service if: (a) your usage level exceeds our average customer use level or otherwise negatively impacts the overall health of the network determined by Marketing Automation in its sole and absolute discretion, or (b) you exceed any bandwidth limitations associated with your account. No such suspension or limitation of the VPN Service shall constitute a breach or default by Marketing Automation of its obligations.
2.4 Updates.You understand that the Marketing Automation Properties are evolving. As a result, Marketing Automation may require you to accept updates to the Application or the Software that you have installed on your computer or mobile device. You acknowledge and agree that Marketing Automation may update the Marketing Automation Properties with or without notifying you. Any updates to the Marketing Automation Properties are subject to these Terms. You may need to update third party software from time to time in order to continue using the Marketing Automation Properties.
2.5 Certain Restrictions.The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Marketing Automation Properties, (b) you shall not frame or utilize framing techniques to enclose any Marketing Automation trademark or logo (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Marketing Automation’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Marketing Automation Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not attempt or engage in, any potentially harmful acts that are directed against the Marketing Automation Properties, including but not limited to violating or attempting to violate any security features of the Marketing Automation Properties, using any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any Marketing Automation Properties, or introducing viruses, worms, or similar harmful code into the Marketing Automation Properties; (f) access the Marketing Automation Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Marketing Automation Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Marketing Automation Properties; (i) you shall not use the Marketing Automation Properties in any manner that could damage, disable, overburden, or impair Marketing Automation’s systems or networks, or interfere with any other party’s use and enjoyment of the Marketing Automation Properties, including without limitation, by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Marketing Automation Properties; (j) you may not attempt to gain unauthorized access to any computer systems or networks associated with the Marketing Automation Properties; (k) . Any future release, update or other addition to the Marketing Automation Properties shall be subject to the Terms. Marketing Automation, its suppliers and service providers reserve all rights not granted in the Terms. Any unauthorized use of the Marketing Automation Properties terminates the licenses granted by Marketing Automation pursuant to the Terms.
2.6 Third Party Materials.As a part of the Marketing Automation Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Marketing Automation to monitor such materials and that you access these materials at your own risk.
3.1 Registering Your Account.In order to access certain features of the Marketing Automation Properties, you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Application (“Account”).
3.2 Registration Data.In registering for the Service, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least sixteen (16) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the Service under the laws of the United States, your place of residence or any other applicable jurisdiction. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Marketing Automation Properties by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or Marketing Automation has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Marketing Automation has the right to suspend or terminate your Account and refuse any and all current or future use of the Marketing Automation Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time. Marketing Automation reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Marketing Automation Properties if you have been previously removed by Marketing Automation, or if you have been previously banned from the Service.
3.3 Activities Under Your Account.You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (1) notify Marketing Automation immediately of any unauthorized use of your password or any other breach of security; and (2) exit from your Account at the end of each session.
3.4 Necessary Equipment and Software.You must provide all equipment and software necessary to connect to the Marketing Automation Properties, including but not limited to, a mobile device that is suitable to connect with and use the Marketing Automation Properties, in cases where the Service offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Marketing Automation Properties.
4. Responsibility for Content.4.1 Types of Content. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through the Marketing Automation Properties, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the party from whom such Content originated. This means that you, and not Marketing Automation, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Marketing Automation Properties (“Your Content”).
5. User Conduct.As a condition of use, you agree not to use the Marketing Automation Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) to take any action or (b) Make Available any Content on or through the Website and the Service that: (i) infringes or violates any patent, trademark, trade secret, copyright, contractual right, right of publicity or other right of any person or entity; (ii) violates any acceptable use or other information technology policy that may apply to your use of any computer system or network; (iii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (v) involves commercial activities and/or sales without Marketing Automation’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (vi) impersonates any person or entity, including any employee or representative of Marketing Automation; or (vii) is inappropriate in any other manner that Marketing Automation determines in its sole, reasonable discretion.
6. Fees and Purchase Terms.
6.1 General Purpose of Terms: Sale of Service, not Software.The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Marketing Automation’s Software or Application, and, furthermore, any use of Marketing Automation’s Software or Application by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms.
6.2 Payment.You agree to pay all fees or charges to your Account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Marketing Automation collects payments through a limited number of payment services (“Payment Provider”). You must provide Marketing Automation with valid account information for the respective chosen Payment Provider. Your Payment Provider agreement governs your use of the designated credit card or other payment method, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing Marketing Automation with your payment information, you agree that Marketing Automation is authorized to immediately invoice your Account for all fees and charges due and payable to Marketing Automation hereunder and that no additional notice or consent is required. You agree to immediately notify Marketing Automation of any change in payment credentials for payment hereunder. Marketing Automation reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Website or by e-mail delivery to you.
6.3 Service Subscription Fees.You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select the term of your subscription (each, a “Service Commencement Dat”). Except as set forth in the Terms, all fees for the Services are non-refundable. No contract will exist between you and Marketing Automation for the Services until Marketing Automation or the Payment Provider, for example Apple or Google, accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
6.4 Taxes.Marketing Automation’s fees are net of any applicable Sales Tax. If any Service, or payments for any Service, are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Marketing Automation, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority and you will indemnify Marketing Automation for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or such other evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Marketing Automation its permitted to pass to its customers that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
6.5 Automatic Renewal.Your subscription will continue indefinitely until terminated in accordance with the Terms. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Marketing Automation’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least 24 hours prior to the Renewal Commencement Date by logging into and going to the “Manage App Subscriptions” page in the Apple App Store or the “My Apps” page in the Google Play Store app. The same page will permit you to change your Account settings if you do not wish your subscription to renew automatically, or if you want to change or terminate your subscription.If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then- current subscription period. By subscribing, you authorize Marketing Automation to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Marketing Automation does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Marketing Automation may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be re-activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
6.6 Pre-purchased Minutes and Texts.Users of the Telephony Service may be able to purchase calling minutes and text messaging packages (collectively, “Pre-Purchased Packages“). Pre-Purchased Packages are not legal tender and cannot be reloaded, resold, transferred for value, redeemed for cash or applied to any other account, except to the extent described herein or as required by applicable law. Marketing Automation prohibits and does not recognize any purported transfers of Pre-Purchased Packages outside of the Telephony Services, or the purported sale, lease, gift or trade in the “real world” of anything that appears or originates outside of the Telephony Services. Accordingly, you may not trade, sell or attempt to sell Pre-Purchased Packages for “real” money, or exchange those items or currency for value of any kind outside the Telephony Services. Any such transfer or attempted transfer is prohibited and void, and will subject your Account to termination. You shall ensure that you have sufficient Pre-Purchased Packages in your Account before you initiate any transaction that requires such credits. If you have insufficient Telephony Credits in your Account to complete the transaction, the transaction will be cancelled. ALL TRANSACTIONS MADE USING Pre-Purchased Packages ARE FINAL AND ARE NON-REFUNDABLE.
7. Marketing Automation Is Provided As-Is.MARKETING AUTOMATION CANNOT GUARANTEE THAT YOUR CONTENT WILL BE SAFE FROM OUTSIDE ATTACKS, HACKERS OR OTHER WAYS OF ACCESSING YOUR CONTENT ON THE FILE SYSTEMS. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE MARKETING AUTOMATION PROPERTIES IS AT YOUR SOLE RISK, AND THE MARKETING AUTOMATION PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. MARKETING AUTOMATION EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8. Limitation of Liability.YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL MARKETING AUTOMATION BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE WEBSITE, THE APPLICATION, THE SOFTWARE, THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT MARKETING AUTOMATION HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL MARKETING AUTOMATION BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY MARKETING AUTOMATION AS A RESULT OF YOUR USE OF THE SERVICE DURING THE TWELVE-MONTH PERIOD PRECEDING THE DATE ON WHICH YOU FIRST ASSERT YOU CLAIM. IF YOU HAVE NOT PAID MARKETING AUTOMATION ANY AMOUNTS DURING SUCH PERIOD, MARKETING AUTOMATION’S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO FIFTY DOLLARS ($50.00). THE TELEPHONY SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR SMS MESSAGES TO ANY EMERGENCY SERVICES. NEITHER MARKETING AUTOMATION NOR ITS SUPPLIERS WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE OR LOSS ARISING FROM OR RELATED TO THE INABILITY TO USE THE TELEPHONY SERVICES TO CONTACT EMERGENCY SERVICES.
9.1 Violations.If Marketing Automation becomes aware of any possible violations by you of the Terms, Marketing Automation reserves the right to investigate such violations. If, as a result of the investigation, Marketing Automation believes that criminal activity has occurred, Marketing Automation reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Marketing Automation is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on the Marketing Automation Properties, including Your Content, in Marketing Automation’s possession in connection with your use of the Marketing Automation Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms; (3) respond to any claims that Your Content violates the rights of third parties; (4) respond to your requests for customer service; or (5) protect the rights, property or personal safety of Marketing Automation, its Users or the public, and all enforcement or other government officials, as Marketing Automation in its sole discretion believes to be necessary or appropriate.
9.2 Breach.In the event that Marketing Automation determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated inappropriate conduct, Marketing Automation reserves the right to: (a) Warn you via e-mail (to any e-mail address you have provided to Marketing Automation) that you have violated the Terms; (b) Delete any of Your Content provided by you or your agent(s) to the Marketing Automation Properties; (c) Discontinue your registration(s) with the Marketing Automation Properties; (d) Discontinue your subscription to any Service; (e) Notify and/or send Your Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or (f) Pursue any other action which Marketing Automation deems to be appropriate.
9.3 No Subsequent Registration.If your registration(s) with or ability to access the Marketing Automation Properties is discontinued by Marketing Automation due to your violation of any portion of the Terms, then you agree that you shall not attempt to re-register with or access the Marketing Automation Properties through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Marketing Automation Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Marketing Automation reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
10. Miscellaneous Legal Terms.
10.1 Electronic CommunicationsThe communications between you and Marketing Automation use electronic means, whether you visit the Website or send Marketing Automation e-mails, or whether Marketing Automation posts notices on the Website or communicates with you via e-mail. For contractual purposes, you (1) agree to receive communications from Marketing Automation in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Marketing Automation provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights
10.2 ReleaseYou hereby release Marketing Automation and its successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage of any kind arising in connection with or as a result of the Terms or your use of the Website, the Application, the Software or the Service. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
10.3 AssignmentThe Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Marketing Automation’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
10.4 Force MajeureMarketing Automation and its licensors shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God; war; terrorism; riots; embargos; acts of civil or military authorities; fire; floods; accidents; strikes or shortages of transportation facilities; fuel; energy; labor; materials; problems with your computing or network infrastructure, hardware or product; problems with your internet service provider (ISP) or any sites you are attempting access through the VPN Service; or any electrical or other utility outages.
10.5 Dispute Resolution
- (a) Any claim or dispute (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms where the total amount of the award sought is less than Five Thousand U.S. Dollars (US $5,000.00) may be resolved in a cost effective manner through binding non-appearance-based arbitration, at the option of the party seeking relief. Such arbitration shall be initiated through an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section and under the rules of such ADR Provider, except to the extent such rules are in conflict with the Terms. The party demanding arbitration will propose an ADR Provider and the other party shall not unreasonably withhold consent to use such ADR Provider. The ADR Provider and the parties must comply with the following rules: (1) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (2) all arbitration proceedings shall be held in English; (3) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed to by the parties; and (4) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Each party shall bear its own costs (including attorney fees) and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the ADR Provider. Notwithstanding the foregoing, Marketing Automation may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction. Please note that the laws of the jurisdiction where you are located may be different from California law, including the laws governing what can legally be sold, bought, exported, offered or imported. You shall always comply with all the international and domestic laws, ordinances, regulations and statutes that are applicable to your use of the Marketing Automation Properties.
- (b) Any other dispute (including whether the claims asserted are arbitrable) shall be referred to and finally determined by binding and confidential arbitration. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by the Terms, and unless otherwise agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
- (c) You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
- (d) You and Marketing Automation must abide by the following rules: (i) ANY CLAIMS BROUGHT BY YOU OR MARKETING AUTOMATION MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (ii) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND MAY NOT AWARD CLASS-WIDE RELIEF; (iii) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Marketing Automation will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (iv) Marketing Automation also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (v) the arbitrator shall honor claims of privilege and privacy recognized at law; (vi) the arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for the purposes of enforcement of the arbitration award; (vii) the arbitrator may award any individual relief or individual remedies that are permitted by applicable law; and (viii) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses, and then in such instance, the fees and costs awarded shall be determined by applicable law.
- (e) The arbitral proceedings, and all pleadings and written evidence will be in the English language. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator will not have authority to award damages in excess of the amount, or other than the types, allowed by Section 8 of the Terms. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. The arbitrator also shall be authorized to grant any temporary, preliminary or permanent equitable remedy or relief it deems just and equitable and within the scope of the Terms, including, without limitation, an injunction or order for specific performance. The arbitration award shall be final and binding upon the parties without appeal or review except as permitted by California law or United States federal law.Notwithstanding the foregoing, either you or Marketing Automation may bring an individual action in small claims court. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in San Francisco County, California. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in San Francisco County, California, in order to maintain the status quo pending arbitration, and hereby agree to submit to the exclusive personal jurisdiction of the courts located within San Francisco County, California for such purpose. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
- (f) With the exception of (d)(i) and (ii) above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either (d)(i) or (ii) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Marketing Automation shall be entitled to arbitration. If for any reason, a claim proceeds in court rather than in arbitration, the dispute shall be exclusively brought in state or federal court in San Francisco County, California. By using the Marketing Automation Properties in any manner, you agree to the above arbitration provision.