All clients must agree to and abide by these Terms and Conditions:
IMPORTANT: PLEASE READ THESE TERMS CAREFULLY BEFORE USING CLEARLINE MOBILE SERVICES (WEB SITE, RELATED WEB PAGES, SOFTWARE, APPLICATIONS, AND OTHER SERVICE). BECAUSE BY USING CLEARLINE MOBILE SERVICES YOU (YOUR COMPANY, YOUR AFFILATES, ANYONE/EVERYONE ON YOUR BEFALF), HAVE ACKNOWLEDGED THAT “YOU” ACCEPT THE FOLLOWING “TERMS AND CONDITION” AND HEREIN REFERRED TO AS “THE CLIENT/USER”, IS AUTHORIZED TO AND COMPLETING SUCH A BINDING AGREEMENT. THIS AGREEMENT AND ATTACHED PRICING ADDENDUM CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE ALL PARTIES AND ALL OTHER ADDITIONAL OR CONTRARY DOCUMENTS, OR REPRESENTATIONS, WRITTEN OR ORAL, ARE HEREBY REJECTED AND SHALL NOT BE BINDING.
1.1 USAGE OF SERVICE
The technology for these message delivery, loyalty and marketing platforms is provided by ClearLine Mobile and is furnished “as is” under this Agreement for the fees specified in our pricing plan. You must read this Agreement and agree to its terms before you may create an account for and use ClearLine Mobile.
Use of Site
ClearLine Mobile authorizes you to view and/or download contents on this Website and other ClearLine Mobile Websites that are linked to this site and or affiliated to the site provided under the agreement that all the information, programs, processes, methodologies, communications, software, scripting, photos, text, video, graphics, sounds, images and other materials and services found on the Site must not be copied or distributed, or republished, uploaded, posted, publicly displayed, performed, distributed or transmitted in any way, without the prior written consent of ClearLine Mobile. WITH THE ONLY EXCEPTIONS OF: personal use only, non-commercial use, including the evaluation of our software products. For purposes of these Terms, any use of this Content on any other Web site or networked computer environment for any other purpose is prohibited.
Use of Software
If any applications, including software applications, and or other Softwares, including all code, files, images, contained in or generated by the Software, and accompanying data, are deemed to be licensed to you by ClearLine Mobile for the purposes of evaluation and/or use as set forth in the Terms and Conditions and any other applicable agreements. No properties can be divided; for example: transferred to you, but remain with ClearLine Mobile, either party must own full and complete title. You may not resell, decompile, reverse engineer, disassemble, or otherwise convert the Software to a perceivable form. You may not download or install the Software until you have read and accepted these Terms.
ClearLine Mobile will, but without obligation to, monitor or review any areas on the Site where users can communicate either solely or with each other, including but not limited to all communication networks including text messaging (SMS, MMS) networks, and or all other user forums, and the content of any such Communications. ClearLine Mobile may also, but without obligation to, monitor communications between users who may employ the Services to communicate with other users. ClearLine Mobile, has sole discretion to remove, edit, delete or modify any Communications deemed undesirable without prior notice to the user submitting such Communications; however, ClearLine Mobile will have no liability related to the content of any such Communications, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise, and retains the right to remove messages that include any material deemed abusive, defamatory, obscene or otherwise unacceptable. ClearLine Mobile may deny access to the Services to users who repeatedly violate these Terms and Conditions.
Third Party Web Sites:
ClearLine Mobile may provide links to other third party websites or resources. All links to third party websites provided by ClearLine Mobile are solely with the purpose of convenience to you, and do not constitute or imply an endorsement, sponsorship or recommendation of, or affiliation with the third party or its products and services. ClearLine Mobile has not completely reviewed all of these third party sites and does not control the contents and so is not responsible for any of these sites or their content. Therefore, ClearLine Mobile makes no representations whatsoever about any other website, which you may access through the ClearLine Mobile Service, or any information, software or other products or materials, found there, or any results that may be obtained from using them. If you decide to access any of the third party sites linked to the ClearLine Mobile, you acknowledge and agree that ClearLine Mobile is not responsible for the availability of such external sites or resources and is not responsible or liable for any content, advertising, products, services or other materials on or available from such sites or resources. It is up to you the user to take precautions to ensure that the action of your usage is free of such items as viruses, worms, Trojan horses and other items of a destructive nature, and you do so entirely at your own risk. You also agree that ClearLine Mobile 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 third-party materials, content, products or services available on or through any such site or resource.
These Terms and Conditions and any disputes arising under or related to these Terms and Conditions (whether for breach of contract, tortuous conduct or otherwise) and any claim relating to the Content shall be governed by the internal substantive laws of the State of California. By using the Services, and agreeing to the Terms and Condition, you agree that any dispute to enforce, defend or interpret any right or remedies under, or arising in connection with or relating to, these Terms and Conditions, shall be settled through binding arbitration under the Rules of Arbitration.
1.2 Modification/ Revisions
ClearLine Mobile is allowed to make changes to the materials and services on the Site, or to the products and prices described in them, at any time without notice. We advise regular visitation to our site for the most up to date information and to review the current Terms and Conditions because they are binding on you. Certain provisions of these Terms and Conditions may be superseded by expressly designated legal notices or terms located on particular pages at this Site. The materials and services at the Site may be out of date, and ClearLine Mobile makes no commitment to update the materials and services at this Site.
ClearLine Mobile reserves the right to change this License Agreement, and add any Additional Terms at any time, effective upon making the modified provisions available on the ClearLine Mobile web site (www.ClearLine Mobile.com). You are responsible for regularly reviewing these terms and conditions. Continued use of ClearLine Mobile after any such changes shall constitute your consent to such changes, including changes in fees. ClearLine Mobile will provide 10 days’ notice for any changes in the pricing schedule and will not assume any obligation to notify you of any changes to the Terms and Conditions and Notices, or Additional Terms.
2.2 Services Provided
ClearLine Mobile shall provide some or all of the following services, depending on services availability, and the service contract purchased: Account management platform; Email messaging, including bounce reports, subscriber reports, campaign reports, etc…; Text Messaging to National carriers, including 2-way Standard and Premium campaigns (e.g., for contests or polls) and results reports; Multimedia Messaging to mobile phones on enabled carriers, including sending ring-tones, wallpapers, images, audio, and video. ClearLine Mobile guarantees 24 hour access to your database, and 99% uptime of its services and the client’s access thereto, subject to the Terms and Conditions set forth herein. If your Service in any given month is interrupted for more than 1% of total uptime as a result of any failure on the part of ClearLine Mobile, ClearLine Mobile shall give you a credit for the reasonable value of that downtime. ClearLine Mobile is accountable for providing the foregoing services, but provides said services “as is” and is only responsible for ensuring that the client’s messages leave the ClearLine Mobile network. ClearLine Mobile is not and cannot be responsible for the ultimate delivery of the client’s messages, and makes no such warranty or guarantee.
Copyrights, Trademarks and Service Marks
Unless otherwise noted.
ClearLine Mobile’s trademarks may be used publicly only with prior written permission from ClearLine Mobile. With the fair use of ClearLine Mobile’s trademarks in advertising and promotion of ClearLine Mobile products requires proper acknowledgment. ClearLine Mobile trademark or service may not be used as a hyperlink without ClearLine Mobile’s prior written permission. Other trademarks that may appear in connection with the Services may be owned by third-parties and used with the permission of the third-parties. You also agree not to use those trademarks without the permission of their respective owners.
For any Communications that cannot be legally assigned to ClearLine Mobile, you hereby grant ClearLine Mobile and its designees an unrestricted, perpetual, royalty-free, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute the Communications for any and all commercial or non-commercial purposes, and agree that ClearLine Mobile is free to use any ideas, concepts, know-how or techniques that you send ClearLine Mobile for any purpose whatsoever without compensation to you or any other person sending the Communication. In addition, you warrant that all so-called “moral rights” with respect to the Communication have been waived.
You are prohibited from using the Services to post, transmit, communicate, and/or deliver, to ClearLine Mobile or other users, any unlawful, threatening, libelous, defamatory, obscene, pornographic, or any other material that would violate any law, or that could give rise to any civil or criminal liability under the law.
BY USING OUR “SERVICE” YOU (YOUR COMPANY, YOUR AFFILATES, and ANYONE/EVERYONE ON YOUR BEFALF) acknowledge that ClearLine Mobile contains valuable trade secrets that are proprietary to ClearLine Mobile and you agree to maintain the confidentiality of any proprietary information that you may obtain. ClearLine Mobile shall maintain as confidential Client’s Email, phone, mobile phone, fax, physical mailing addresses, instant message handles and, pager list(s) to be used exclusively by Client for the benefit or Client. ClearLine Mobile will not compile, buy, sell, rent, rent, or trade Client’s Email, phone, fax, physical mailing addresses, instant message handles or pager list(s), or send unauthorized emails, instant messages, wireless text messages (SMS), direct mail, voice messages or faxes to client’s list. ClearLine Mobile will not use your customer list or any other customer information for any other purposes than those intended with the service without your express written consent. Your information will not be shared with any other parties unless required by law.
ClearLine Mobile maintains a Global Permanent Removal List which contains addresses and domains which it will not allow any customer to add to a database. You understand and agree that ClearLine Mobile has full discretion to block the uploading of any email address which it has placed on such a list, and will not be liable for the blocking of any such address from any customer database.
You may not: 1) use or copy ClearLine Mobile, or the Documentation except as provided in this Agreement; 2) modify or merge ClearLine Mobile or the Documentation; 3) publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on ClearLine Mobile, the Documentation or any part thereof, or otherwise make available, the Documentation, in whole or in part, to any other person or entity; 4) remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on ClearLine Mobile or the Documentation; 5) reverse engineer, decompile, translate, adapt, or dissemble ClearLine Mobile, nor shall you attempt to create the source code from the object code for ClearLine Mobile; or 6) sublicense or assign the license for ClearLine Mobile or the Documentation; and 7) copy this terms and conditions or license agreement for your own use. You must include subscribe/unsubscribe information (as well as a physical address for the CAN SPAM act and an abuse link to our abuse system) provided by ClearLine Mobile in each message you send using ClearLine Mobile. You must also honor in a timely manner all unsubscribe requests sent directly to you from those who elected not to use ClearLine Mobile’s automated subscribe/unsubscribe features, regardless of how harsh or unpleasant the unsubscribe request may be. You may not use ClearLine Mobile to:
- send unsolicited emails, instant messages, wireless text messages (SMS), or Multimedia (MMS) Messages (a.k.a. “Spam”) to anyone;
- send unsolicited emails, instant messages, wireless text messages (SMS), or Multimedia (MMS) Messages to email addresses, phone/pager numbers, landline phone or fax machine, obtained from any purchased or harvested lists in which the recipient did not expressly request to receive your message;
- send emails, instant messages, wireless text messages (SMS), or Multimedia (MMS) Messages that harass, embarrass, defame, abuse, threaten, are libelous or slanderous, or otherwise violate the legal rights of any individual, group, or organization;
- send emails, instant messages, wireless text messages (SMS), or Multimedia (MMS) Messages that contain or link to pornographic or sexually explicit content, racially or ethnically objectionable content, content that directly or indirectly promotes the use of any illegal substances, content that violates laws or regulations designed to protect minors, or other content deemed to be offensive or inappropriate by ClearLine Mobile;
- send emails, instant messages, wireless text messages (SMS), or Multimedia (MMS) Messages that contains copyrighted material, including text, graphics (including trademarked material), software or other material protected
- by intellectual property law, for which you do not have lawful authorization to reproduce, publish, or otherwise distribute;
- send emails, instant messages, wireless text messages (SMS), or Multimedia (MMS) Messages that contains a computer virus or other code or files that could damage, harm, or otherwise disrupt the operation of anyone else’s computer or storage device, or violate the privacy or security of any individual, group, or organization;
- perform or promote illegal activities such as starting or forwarding chain letters, illegal contests or promotions, or any other activity that is illegal;
- impersonate, use the name of without expressed permission, or
- Violate any applicable governmental laws or regulations or perform any activity that would cause ClearLine Mobile to violate any law, statute or regulation.
Although ClearLine Mobile has no obligation to monitor the content provided by you or your use of the Services, it may do so and may remove any such content or prohibit any use of the Services it believes may, be or is alleged to be in violation of the foregoing.
2.6. “No Spam” and Privacy Policies
You represent, covenant, and warrant that you will use the Services only in compliance with the Agreement, the federal CAN-SPAM Act of 2003 and all other applicable laws, including but not limited to policies and laws related to spamming, privacy, obscenity, or defamation. This includes all applicable best practices as set forth by the Mobile Marketing Association (www.mmaglobal.com). In the event you use the service to conduct telemarketing activities, You warrant to us that you will take all required actions necessary to comply with applicable state and federal DO NOT CALL and TELEMARKETING registration statutes and regulations, and you will not use the Service in a manner which will result in a violation of any laws or regulation respecting such Service, including but not limited to the federal Telephone Consumer protection Act, 27 U.S.C. § 227, et seq..
2.7. Addressing Spam Complaints
You are responsible for ensuring that your campaigns do not generate a number of abuse complaints in excess of industry norms, which may result in termination of services on your behalf. ClearLine Mobile, in its sole discretion, shall determine whether your level of abuse complaints is within industry norms, and its determination shall be final, binding and conclusive for all purposes under this Agreement. In the event that your use of the Services results in your being listed on SpamCop or any other anti-spam organization, ClearLine Mobile reserves the right to require that you utilize a “double opt in” service which will require newly added users to verify their assent to receiving your communications after they have been added to your database(s).
If a customer gets blocked, ClearLine Mobile may charge $10 per incident for the service, unless the block was the fault of ClearLine Mobile. If your account is flagged as being a potential spammer, ClearLine Mobile will generally take the following steps:
- Spam complaint received – Based on the severity (such as a spam trap) as well as volume of complaints, we will assess the situation and notify the client as to the violations.
- Account is temporarily suspended to give us time to properly investigate the claims.
- If the block is due to numerous spam complaints, the client will have to wait until the threshold goes down before sending more mailings.
- If the block is due to a spam trap, ClearLine Mobile will attempt to discover the seed address (es) but this may not be possible. The client will not be able to send mailings until the database is cleared of possible traps or may have to resubmit a new database
- After the investigation, ClearLine Mobile will determine whether or not it can continue to do business with the client.
You acknowledge that upon your breach of Sections 2.3, 2.4, 2.5, 2.6 and or any other applicable clause ClearLine Mobile shall be entitled to equitable relief to protect its interests, including preliminary and permanent injunctive relief and you further agree to waive any right or claim to which you may be entitled to immunity or exemption from liability. ClearLine Mobile may also seek damages as a result of such breach.
2.9 Term and Termination
ClearLine Mobile, with sole discretion, may terminate or restrict your use or access to ClearLine Mobile websites (or any other part thereof) for any reason, including, but not limited to, if ClearLine Mobile believes you have violated or acted inconsistently with the orders of these Terms and Conditions, or if you are have breach of the Terms and Conditions . Upon termination with ClearLine Mobile, you are solely responsible for immediately destroying any and all Content of the Services, whether in printed or software format.
Service cancellation requires a 30 advance notification prior to the ClearLine Mobile billing cycles which starts at the beginning of each month. Please contact ClearLine Mobile for a Cancellation Form and follow up with ClearLine Mobile Customer Care if you do not receive a confirmation email within five (5) business days after your fax or email request. Unused credits and services are not refundable.
Notifications can be made either via email, regular mail or SMS. ClearLine Mobile may also provide notice of changes to the Terms and Conditions or other matters by displaying links to notices or web postings to inform changes.
Certain items or programs offered by the ClearLine Mobile, whether by ClearLine Mobile or its partners/Affiliates, and certain areas within this Site may be governed by additional Terms and Conditions and/or other agreements Additional Terms presented in conjunction with those items or programs. You must agree to these Additional Terms before using those areas. The Additional Terms and this Terms and Conditions shall apply equally. In the event of an irreconcilable inconsistency between the Additional Terms and this Terms and Conditions, the Additional Terms shall control.
ClearLine Mobile’s failure to enforce any part of these Terms and Conditions shall not constitute as a waiver of any kind by ClearLine Mobile’s rights under these Terms and Conditions, whether for past or future actions on the part of any person. ClearLine Mobile’s actions shall be deemed to constitute a waiver of any part of these Terms and Conditions. A specific, written waiver signed by an authorized representative of ClearLine Mobile may be the only form of a legal waiver.
If any provision of these Terms and Conditions shall be found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions.
Acceptance of Terms
BY USING CLEARLINE MOBILE SERVICES YOU (YOUR COMPANY, YOUR AFFILATES, ANYONE/EVERYONE ON YOUR BEFALF acknowledge you have read, and agreed to be bound by these Terms and to comply with all applicable laws and regulations. You further agree to comply with all local laws, regulations and rules regarding online conduct and acceptable Content. You represent yourself (your company and anyone using our service under you) have the legal authority to accept these Terms on behalf of yourself or any party you represent. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE THE SERVICES.
You understand that your Agreement is effective from the date you create an account with ClearLine Mobile and shall continue until the contract is complete or the account is terminated either by you or by ClearLine Mobile. Request to terminate will be effective 30 days after receipt by mail, or receipt of an email with verifiable return email, to ClearLine Mobile at firstname.lastname@example.org with ALL fees due prior to the effective date of termination. 6 and 12 month agreements will automatically roll over to month-to-month agreements, at the same rate, until the client notifies ClearLine Mobile in writing as specified above. Clients who choose to terminate a 6 or 12 month agreement prior to the expiration date will be required to pay 50% of any remaining and/or unpaid balance due. ClearLine Mobile MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED UPON TERMINATION OF THIS LICENSE. YOU WILL NOT TAMPER WITH THIS DISABLING DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED. ClearLine Mobile may terminate this Agreement immediately if: i) you fail to comply with the terms of this Agreement, ii) your account is dormant for a period of 60 consecutive days, iii) the ClearLine Mobile service is discontinued, or iv) you have an overdue balance for any non-free services or products purchased on or through www.ClearLine Mobile.com. If we do so, you must immediately stop using ClearLine Mobile and associated Documentation, including sample documents provided within ClearLine Mobile, and all copies you made of them.
2.10 Non-Payments and Fee
ClearLine Mobile Services may require or involve sales fees, transaction fees, transmission fees, and other types of fees (“Fees”). By using these aspects of the Services, you consent to the Fees involved and agree that you decided to use the Services with full knowledge of the Fees.
Any fees not paid in full within 30 days of the invoice date will incur a $50 late fee. Any fees not paid in full within 60 days of the invoice date will incur a $100 late fee in addition to termination of the account. Said late fees shall continue to accrue until past due amount is paid in full. All past due fees shall also accrue a 10% interest rate or the maximum rate allowed by law, whichever is higher. Once ClearLine Mobile is the prevailing party in any dispute we shall be entitled to recover reasonable attorney, professional, and collection fees and costs. Checks returned for insufficient funds or any charge backs initiated will incur a fee of $25 per incident. Charges over 30 days old cannot be disputed nor contested.
ClearLine Mobile and its Mobile Messaging platform may have errors and may produce unexpected results. You agree that any use of ClearLine Mobile will be entirely at your own risk. You agree to backup data and take other appropriate measures to protect programs and data. You may not allow a third party to use your ClearLine Mobile account and agree to indemnify and hold ClearLine Mobile harmless from any damages or claims arising from such use by any third party. You specifically understand that you assume all risk of your messages actually reaching their destination, and that ClearLine Mobile does not and cannot guarantee ultimate delivery of your messages; with respect to carrier message delivery.
3. DISCLAIMER OF WARRANTIES AND REMEDIES
3.1 Disclaimer of Warranty
THE MATERIALS, INFORMATION AND SERVICES PROVIDED BY CLEARLINE MOBILE ARE PROVIDED “AS IS” TO THE MAXIMUM EXTENT PERMITTED BY LAW WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
CLEARLINE MOBILE DOES NOT WARRANTY OR MAKE ANY REPRESENTATIONS REGARDING THE AVAILABILITY, USE, TIMELINESS, SECURITY, VALIDITY, ACCURACY, RELIABILITY, OR THE RESULTS OF THE USE OF, OR OTHERWISE RESPECTING, THE SITE, THE SOFTWARE, THE CONTENT OF THE SITE OR THE SOFTWARE OR ANY OTHER WEBSITES LINKED TO OR FROM THE SITE.
CLEARLINE MOBILE DOES NOT WARRANTY OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS IN THE USEAGE OF THE MATERIALS, DATA OR INFORMATION IN THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. WHILE CLEARLINE MOBILE MAY MAKE REASONABLE EFFORTS TO PROVIDE ACCURATE AND TIMELY INFORMATION ABOUT OUR PRODUCTS ON CLEARLINEMOBILE.COM, YOU SHOULD NOT MAKE ASSUMPTIONS THAT THE INFORMATION PROVIDED IS ALWAYS UP TO DATE OR THAT THE SITE CONTAINS ALL THE RELEVANT INFORMATION AVAILABLE ABOUT CLEARLINE MOBILE. CLEARLINE MOBILE UNDERTAKES NO OBLIGATION TO VERIFY OR MAINTAIN THE CURRENCY OF SUCH INFORMATION.
ANY MATERIAL OBTAINED THROUGH THE USAGE OF CLEARLINE MOBILE SERVICES IS DONE AT YOUR OWN DISCRETION/RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES CAUSED IN RESULT FROM ANY SUCH MATERIAL, OR USE OF THE SERVICES. INFORMATION PUBLISHED AT THE SITE MAY REFER TO PRODUCTS, PROGRAMS OR SERVICES THAT ARE NOT AVAILABLE IN YOUR GEOGRAPHIC LOCATION.
CLEARLINE MOBILE DOES NOT WARRANTY THAT THE FUNCTIONS CONTAINED IN CLEARLINE MOBILE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT CLEARLINE MOBILE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN CLEARLINE MOBILE WILL BE CORRECTED, OR THAT CLEARLINE MOBILE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. YOU SPECIFICALLY UNDERSTAND THAT THERE ARE MANY REASONS, OUTSIDE OF THE CONTROL OF CLEARLINE MOBILE, THAT EMAILS AND TEXT MESSAGES MAY NOT REACH THEIR INTENDED RECIPIENTS, AND UNDERSTAND THAT CLEARLINE MOBILE CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR THE ULTIMATE ARRIVAL OF YOUR BLASTS.
THE INFORMATION PRESENTED ON THE SITE OR BROADCASTED FROM THE SITE WITH CONTENT BY CLEARLINE MOBIE FROM CLEARLINE MOBIE PUBLICATIONS, WRITINGS AND/OR THIRD PARTY BOOKS OR WRITINGS IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT MEANT TO SERVE AS A SUBSTITUTE FOR PROFESSIONAL LEGAL OR FINANCIAL ADVICE WHICH SHOULD BE OBTAINED THROUGH CONSULTATION WITH APPROPRIATE PROFESSIONALS IN YOUR STATE.
If you receive a claim that the use of ClearLine Mobile infringes a patent, copyright or other intellectual property right, you must promptly notify ClearLine Mobile in writing. ClearLine Mobile, at its own expense and option, may (i) defend and settle such claim, (ii) procure you the right to use ClearLine Mobile, (iii) modify or replace ClearLine Mobile to avoid infringement; or (iv) refund the license fees you paid, if applicable. These are your sole and exclusive remedies for any and all claims you may have against ClearLine Mobile arising out of or in connection with ClearLine Mobile, whether made or suffered by you or another person and whether based in contract or tort.
3.2 Limitations of Liability
TO THE EXTENT PERMITTED BY LAW UNDER NO CIRCUSTANCES WILL CLEARLINE MOBILE , OR IT’S AFFILIATES OR OTHER THIRD PARTIES MENTIONED IN THE SERVICES BE LIABLE TO YOU, OR ANY OF YOUR THIRD PARTIES FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY DAMAGES) THOSE RESULTING FROM LOST PROFITS, LOST DATA OR BUSINESS INTERRUPTION, OR CAUSED BY OR RELATED TO ERRORS, OMISSIONS, INTERRUPTIONS, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, LINE FAILURE, AND ALL OTHER DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICES, ANY WEB SITES LINKED TO THE SITE, OR THE MATERIALS OR INFORMATION OR SERVICES 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. IF YOUR USE OF THE MATERIALS, INFORMATION OR SERVICES FROM THE SITE OR THE SOFTWARE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ALL COSTS THEREOF. 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. NOTWITHSTANDING THE FOREGOING, CLEARLINE MOBILE’s TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, AND CAUSES OF ACTION, INCLUDING BUT NOT LIMITED TO THOSE BASED ON CONTRACT, TORT OR OTHERWISE, ARISING OUT OF YOUR USE OF THE SERVICES, ITS CONTENT OR LINKS, SHALL NOT EXCEED THE AMOUNT YOU PAID TO ACCESS THIS SITE.
SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOUBECUASE SOME JURISDICTIONS PROHIBITS THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES.
You understand that the sending of unsolicited messages may result in fines, penalties, and the blocking of servers by spam filters and other spam preventing measures, and you shall reimburse ClearLine Mobile for any fines or penalties assessed against, and shall be liable for damages caused to any ClearLine Mobile server which is blocked as a result of your use of the Services covered herein. In addition to penalties which ClearLine Mobile may impose if your campaign results in a server being blocked, ClearLine Mobile shall have the right to charge your account for any time spent by its agents or employees addressing issues arising out of the unlawful use (or use in any manner inconsistent with the terms of this Agreement) of the Services, and that such damages may include, without limitation, direct, indirect, special, incidental, cover, reliance and/or consequential damages.
This license and the rights granted under this Agreement may not be transferred or assigned by you or your company without the express written consent of ClearLine Mobile. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of California, without regard to its principles of conflict of laws. The parties consent to the jurisdiction of the courts of the State of California and the federal courts located within the State of California, and any disputes shall be litigated solely in those courts. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees. If any clause, sentence or other provision of this Agreement is held to be illegal, invalid or unenforceable, the remaining clause, sentence, or other provisions shall remain in full force and effect. Neither of the parties shall be liable for failures due to causes beyond their control, including, but not limited to, acts of God, acts of government, fire, flood, strikes, or acts or omissions of carriers. You warrant that you will comply with all applicable laws and regulations that relate to the performance of this Agreement. ARBITRATION
4.2 No Agency
No agency, partnership, joint venture, or employment is created as a result of the Agreement and you do not have any authority of any kind to bind ClearLine Mobile in any respect whatsoever.
THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF ClearLine Mobile OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. YOU SHALL NOT EXPORT ClearLine Mobile, THE DOCUMENTATION, OR INFORMATION ABOUT ClearLine Mobile, AND THE DOCUMENTATION WITHOUT CONSENT OF ClearLine Mobile AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS.
Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind. This Agreement constitutes the entire Agreement, supersedes all prior agreements, and changes are only effective when in writing and signed by both parties.
You will ensure that anyone in your organization or affiliated entities who uses ClearLine Mobile (accessed either locally or remotely) does so only for your authorized use and complies with the terms of this Agreement.
4.4 Assignment of Accounts
ClearLine Mobile reserves the right to assign its IP and/or client’s accounts and data to another company of equal or greater capabilities and capacity to handle client’s account. In the event that ClearLine Mobile merges with or is acquired by another company or companies, all of its client accounts shall be automatically transferred to said new company or companies, but this contract shall remain valid and enforceable.
Client agrees to pay ClearLine Mobile in accordance with the user pricing schedule – QUOTE for all mobile messaging services provided, and expenses provided or incurred hereunder, and for sales, use or similar tax, if any.