Terms of service
Effective: May 25, 2018
This Getmymessage Customer Agreement (the “Agreement”)
is between you and Getmymessage FZ-LLC (“Getmymessage”/”We”/”us”/”Our”). You are agreeing to this Agreement not as an individual but on behalf of your company or any legal person, and “Customer” or “you” means your company, and you are binding your company to this Agreement. We may modify this Agreement from time to time, subject to the terms in Section 21 (Changes to this Agreement) below.
By clicking on the “I accept” (or similar button) that is presented to you at the time of your Order, or by using or accessing our products, you indicate your assent to be bound by this Agreement. If you do not accept these Terms of Service, then do not use any of the products as defined in Section 2 of this agreement.
2. Products. This Agreement governs (a) Our hosted or cloud-based solutions (“Hosted Services”), and (b) any related support or maintenance services provided by us. Hosted Services, together with related Documentation, are referred to as “Products”.
3. Registration. You may need to register for an account in order to place orders or access or receive any Products. Any registration information that you provide to us must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your accounts. For the purpose of this agreement, regardless of whether you register for an account as an individual, or on behalf of an organization, the creator of the account will be the default Account Owner (the “Account Owner”). The Account Owner will have certain rights within the account, including the right to cancel the account, delete information from the account and appoint administrators. The Account Owner can also appoint a new Account Owner if he is not the appropriate person to manage the account. In the event of a dispute regarding Account ownership, we reserve the right to request any documentation to determine or confirm Account ownership. We retain the right to determine, in our sole judgment, rightful Account ownership and transfer an Account to the rightful owner. If we are unable to reasonably determine the rightful Account Owner, we reserve the right to temporarily disable the Account until resolution has been determined between the disputing parties.
4.Purchase of our Services
4.1. Directly with us. Our Product ordering documentation (“Order”) will specify your authorized scope of use for the Products, which may include: (a) number and type of Authorized Users (as defined below), (b) storage or capacity, (c) numbers of licenses, copies or instances, or (d) other restrictions or billable units (as applicable, the “Scope of Use”). The term “Order” also includes any applicable Product or Support and Maintenance renewal, or purchases you make to increase or upgrade your Scope of Use.
4.2. Reseller. This Agreement applies whether you purchase our Products directly from us or through our “Experts” or other authorized resellers (each, a “Reseller”). If you purchase through a Reseller, your Scope of Use shall be as stated in the Order placed by Reseller for you, and Reseller is responsible for the accuracy of any such Order. Resellers are not authorized to make any promises or commitments on our behalf, and we are not bound by any obligations to you other than what we specify in this Agreement.
5. Authorized Users. Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorized Users”) may access and use the Products. Some Products may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User. Authorized Users may be your or your Affiliates’ employees, representatives, consultants, contractors, agents, or other third parties who are acting for your benefit or on your behalf. You may increase the number of Authorized Users permitted to access your instance of the Product by placing a new Order or, in some cases, directly through the Product. Whenever applicable, you must pay the applicable fee for the increased number of Authorized Users. You are responsible for compliance with this Agreement by all Authorized Users. All use of Products by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates. “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity.
6. Hosted Services.
6.1. Access. Subject to the terms and conditions of this Agreement, we grant you a non-exclusive right to access and use the Hosted Services during the applicable Subscription Term (as defined below) in accordance with this Agreement, your applicable Scope of Use and the Documentation. If we offer client software (e.g., a desktop or mobile application) for any Hosted Service, you may use such software solely with the Hosted Service, subject to the terms and conditions of this Agreement. You acknowledge that our Hosted Services are on-line, subscription-based products and that we may make changes to the Hosted Services from time to time.
6.2. Subscription. Hosted Services are provided on a subscription basis for a set term specified in your Order (“Subscription Term”). Except as otherwise specified in your Order, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your account with us. If you cancel, your subscription will terminate immediately. However, at our discretion, the subscription may be terminated at the end of then-current billing cycle, but you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
6.3. Credentials. You must ensure that all Authorized Users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorized person. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.
6.4. Third Party Code. We may include code and libraries licensed to us by third parties, including open source software, in our products.
6.5. Your Data. “Your Data” means any data, content, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to us. Subject to the terms of this Agreement, you hereby grant to us a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the applicable Hosted Service to you and (b) for Hosted Services that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service.
6.6. Security. We implement security procedures to help protect Your Data from security attacks. However, you understand that use of the Hosted Services necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.
6.7. Storage. There may be storage limits associated with a particular Hosted Service. These limits are described in the services descriptions on our websites or in the Documentation for the particular Hosted Service. We reserve the right to charge for additional storage or overage fees at the rates specified on our website. We may impose new, or may modify existing, storage limits for the Hosted Services at any time in our discretion, with or without notice to you.
6.8. SMS Services. We shall not be liable for any short-term or long-term interruption of the data transmission to the mobile phone of the receiver. We do not guarantee that an SMS message is always received properly and on time and do not guarantee the complete and permanent availability of all services. You are required to take into account the applicable legal rules and you agree to indemnify us and hold us harmless for any damages caused by acts in violation of these legal rules. You are fully responsible for the content of SMS messages sent and agree to indemnify us and hold us harmless for damages resulting from the content of the sent SMS messages. You cannot derive any rights from any prepaid credits in your account if your contract is cancelled or terminated for any reason whatsoever.
6.9. Responsibility for Your Data.
6.9.1. General. You must ensure that your use of Hosted Services and all Your Data is at all times compliant with all applicable local, state, federal and international laws and regulations (“Laws”). You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to provide all Your Data to us and to grant the rights granted to us in this Agreement and (ii) Your Data and its transfer to and use by us as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under Section 6.6 (Security), we assume no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.
6.9.2. Sensitive Data. You will not submit to the Hosted Services (or use the Hosted Services to collect): (i) any personally identifiable information, except as necessary for the establishment of your account with us; (ii) any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations; or (iii) any other information subject to regulation or protection under any specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations) ((i) through (iii), collectively, “Sensitive Data”). You also acknowledge that we are not acting as your Business Associate or subcontractor (as such terms are defined and used in HIPAA) and that the Hosted Services are not HIPAA compliant. “HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented. Notwithstanding any other provision to the contrary, we have no liability under this Agreement for Sensitive Data.
6.9.3. Indemnity for Your Data. You will defend, indemnify and hold us harmless from and against any loss, cost, liability or damage, including attorneys’ fees, for which we become liable, arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Hosted Services in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law. This indemnification obligation is subject to your receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation by us at your expense.
6.10. Removals and Suspension. We have no obligation to monitor any content uploaded to the Hosted Services. Nonetheless, if we deem such action necessary based on your violation of this Agreement or in response to takedown requests that we receive following any Copyright and Trademark Violations, we may (1) remove Your Data from the Hosted Services or (2) suspend your access to the Hosted Services. We will generally alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of the Hosted Service or other users, we may suspend your access immediately without notice. You will continue to be charged for the Hosted Service during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to any Hosted Services as described in this section. We can remove accounts without notice, if it is obvious from the details provided by you that there is no underlying business for which the Hosted Services are being subscribed to. Some of the reasons that would be considered to reach this conclusion would be the website address (if obtained by us) and the email domain of the contact name provided. It is highly recommended that the email domain of the contact name and the website domain (if obtained by us) should match to prevent removal of accounts. It is also recommended that the website address or email domain provided should reflect an underlying related business for which the Hosted Services are being subscribed to. We reserve the right at all times (but will have no obligation) to remove or refuse to distribute any User Content and to terminate users or reclaim usernames. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of our users and the public.
6.11. Deletion at End of Subscription Term. We may remove or delete Your Data within a reasonable period of time as determined by us after the termination of your Subscription Term.
7. Support and Maintenance. We will provide support and maintenance services (“Support and Maintenance”) during the period for which you have paid the applicable fee. Support and Maintenance is subject to the terms specified in your Order. Support and Maintenance for Software includes access to New Releases, if and when available. “New Releases” are bug fixes, patches, major or minor releases, or any other changes, enhancements, or modifications to the Software that we make generally commercially available. We may alter, suspend, or discontinue our products at any time and for any reason or no reason, but will endeavor to provide notice of the same. Our products may be unavailable from time to time due to maintenance or malfunction of computer or network equipment or other reasons. We may periodically add or update the information and materials on this Website without notice.
8. Training Services. We will provide training services purchased in an Order in accordance with the descriptions and conditions for those services set forth in the Order and the accompanying service descriptions or datasheets (“Ancillary Services”). We shall retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments related to any training services we provide (“Training Materials”). Any Training Materials provided to you may be used only in connection with the Products subject to the same use restrictions for the Products. If applicable, you will reimburse us for reasonable travel and lodging expenses as incurred.
9. Returns and Financial Terms.
9.1. Return Policy. As part of our commitment to customer satisfaction, it is our normal customary business practice to allow customers to offer a free trial of our product for a certain period of time, which we may not choose to offer in every case. In the context of Hosted Services, a return means that we will disable access to the Hosted Service. You understand that we may change this practice in the future in accordance with Section 21 (Changes to this Agreement).
9.2. Delivery. We will deliver the login instructions to the email addresses specified in your Order. All deliveries under this Agreement will be electronic. For the avoidance of doubt, you are responsible for installation of any Software, and you acknowledge that we have no further delivery obligation with respect to the Software after this.
9.3. Payment. You agree to pay all fees in accordance with each Order. Unless otherwise specified in your Order, you will pay all amounts in U.S. dollars at the time you place your Order. Other than as expressly set forth in Section 9.1 (Return Policy), all amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades or feature enhancements. If you add Authorized Users during your License Term or Subscription Term, we will charge you for the increased number of Authorized Users pursuant to the then-currently applicable rates. You agree that we may bill your credit card for renewals, additional users, and unpaid fees, as applicable The Service is billed in advance on a monthly basis and is non-refundable. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties. If you upgrade your account, this will trigger a pro-rated charge which will be processed immediately using the payment method you have provided. If you downgrade your account, we will adjust your fees down as of the next billing cycle. Downgrading your Service may cause the loss of User Content, features, or capacity of your account. We do not accept any liability for such loss. If you cancel the Service before the end of your current paid up month, your account will remain open until the end of the then-current billing cycle, after which the cancellation will take effect and you will not be charged for the next month or be able to access your account. Prices of all Services, including but not limited to monthly subscription plan fees to the Service, are subject to change upon 30 days’ notice from us. Such notice may be provided by email or through an in-App notification. If you purchase any Products through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that we may terminate your rights to use Products if we do not receive our corresponding payment from the Reseller.
9.4. Taxes. Your payments under this Agreement exclude any taxes or duties payable in respect of the Products in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by us, you must pay to us the amount of such taxes or duties in addition to any fees owed under this Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to us any such exemption information, and we will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
10. No-Charge Products. We may offer certain Products to you at no charge, including free accounts, trial use, and access to Beta Versions as defined below (“No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that we specify and is only permitted for the period designated by us. You may not use No-Charge Products for competitive analysis or similar purposes. We may terminate your right to use No-Charge Products at any time and for any reason in our sole discretion, without liability to you. To the maximum extent permitted by applicable law, we disclaim all obligations or liabilities with respect to No-Charge Products, including any Support and Maintenance, warranty, and indemnity obligations.
11. Restrictions. Except as otherwise expressly permitted in this Agreement, you will not: (a) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (b) use the Products for the benefit of any third party, (c) incorporate any Products into a product or service you provide to a third party, (d) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (e) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except as permitted by law, (f) remove or obscure any proprietary or other notices contained in any Product, or (g) publicly disseminate information regarding the performance of the Products.
12. Ownership and Feedback. Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products (including all No-Charge Products), their “look and feel”, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for us, including without limitation as they may incorporate Feedback (“Getmymessage Technology”). From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to us, including sharing Your Modifications or in the course of receiving Support and Maintenance (“Feedback”). We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in this Agreement limits our right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
13. Confidentiality. Except as otherwise set forth in this Agreement, each party agrees that all code, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure. Any Getmymessage Technology and any performance information relating to the Products shall be deemed Confidential Information of Getmymessage without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law. For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product.
14. Term and Termination. This Agreement is in effect for as long as you have a valid License Term or Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement. Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations. You may terminate this Agreement at any time with notice to us, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Hosted Services subscriptions, or Support and Maintenance. We may, under certain circumstances and without prior notice, immediately terminate Your ability to access our products. The cause for such termination shall include, but not be limited to (a) unexpected technical, security or legal issues or problems, and/or (b) participation by You, directly or indirectly, in fraudulent or illegal activities; or (c) verbal, physical, written or other abuse (including threats of abuse or retribution) of any of our customers, employees, members or officers will result in immediate termination of Your account. You acknowledge and agree that all terminations may be made by us in our sole discretion and that we shall not be liable to You or any third-party for any termination of Your access to our products or for the removal of any of the materials uploaded by You. Any termination of these Terms of Service by us shall be in addition to any and all other rights and remedies that we may have. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Once the Agreement terminates, you (and your Authorized Users) will no longer have any right to use or access any Products, or any information or materials that we make available to you under this Agreement, including Getmymessage Confidential Information. The following provisions will survive any termination or expiration of this Agreement: Sections 6.8.3 (Indemnity for Your Data), 9.3 (Payment), 9.4 (Taxes), 10 (No-Charge Products) (disclaimers and use restrictions only), 11 (Restrictions), 12 (Ownership and Feedback), 13 (Confidentiality), 14 (Term and Termination), 15.2 (Warranty Disclaimer), 16 (Limitation of Liability), 19 (Dispute Resolution), 20 (Export Restrictions), and 22 (General Provisions).
15. Warranty and Disclaimer.
15.1. Due Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
15.2. WARRANTY DISCLAIMER. ALL PRODUCTS ARE PROVIDED “AS IS,” AND GETMYMESSAGE AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. GETMYMESSAGE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF GETMYMESSAGE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER GETMYMESSAGE NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
16. Limitation of Liability. NEITHER PARTY (NOR ITS SUPPLIERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO US FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, OUR AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE US$20. THIS SECTION 16 (LIMITATION OF LIABILITY) SHALL NOT APPLY TO (1) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (2) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (3) YOUR BREACH OF SECTION 11 (RESTRICTIONS). TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO SUPPLIERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER. YOU SHALL INDEMNIFY AND HOLD GETMYMESSAGE AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, AND EMPLOYEES, HARMLESS FROM ALL CLAIMS, ACTIONS, PROCEEDINGS, DEMANDS, DAMAGES, LOSSES, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), INCURRED IN CONNECTION WITH ANY MATERIALS SUBMITTED, POSTED, TRANSMITTED OR MADE AVAILABLE BY YOU THROUGH OUR PRODUCTS AND/OR ANY VIOLATION BY YOU OF THESE TERMS OF SERVICE, THE RIGHTS OF ANY THIRD PARTY, OR ANY APPLICABLE LAW OR REGULATION. The parties agree that the limitations specified in this Section 16 (Limitation of Liability) will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
17. Publicity Rights. We may identify you as our customer in our promotional materials. You may request that we stop doing so by submitting an email to firstname.lastname@example.org at any time. Please note that it may take us up to 30 days to process your request.
19. Dispute Resolution
19.1. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration under the Rules of Arbitration of the International Chamber of Commerce. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Dubai (United Arab Emirates). All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
19.2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of the United Arab Emirates. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 19.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of the courts of the United Arab Emirates, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Dubai, United Arab Emirates, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, we may bring a claim for equitable relief in any court with proper jurisdiction.
19.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 19.1 (Dispute Resolution; Arbitration), nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
19.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.
20. Export Restrictions. The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your use of the Products. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list and (ii) that none of Your Data is controlled under the US International Traffic in Arms Regulations.
21. Changes to this Agreement. This Agreement may be amended or updated from time to time without notice and terms of this agreement may have changed since your last visit to our website. It is your responsibility to review these terms of service for any changes. Your use after any amendments or updates of these terms of service shall signify your assent to and acceptance of such revised terms. Any new features that may be added to this website from time to time will be subject to these terms of service. Unless otherwise stated, you should visit this page periodically to review these terms of service. If we modify the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew. With respect to No-Charge Products, the updated Agreement is becomes immediately applicable for you to continue using the No-Charge Products. If you do not agree to the updated Agreement after it becomes effective, you will no longer have a right to use No-Charge Products. For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order. Nothing in this section prevents us from bringing in changes in this agreement to protect the Hosted Services from being used by subscribers with no underlying business or purpose.
22. General Provisions. Any notice under this Agreement must be given in writing. We may provide notice to you via email or through your account. Our notices to you will be deemed given upon the first business day after we send it. You may provide notice to us by post to Getmymessage FZ LLC, Boutique Office No. 7, in5, Knowledge Village, Dubai Media City, Post Box 502925, Dubai, United Arab Emirates Attn: Director. Your notices to us will be deemed given upon our receipt. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. You may not assign this Agreement without our prior written consent. We will not unreasonably withhold our consent if the assignee agrees to be bound by the terms and conditions of this Agreement. We may assign our rights and obligations under this Agreement (in whole or in part) without your consent. The Products are commercial computer software. This Agreement is the entire agreement between you and Getmymessage relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Agreement may not be modified or amended by you without our written agreement (which may be withheld in our complete discretion without any requirement to provide any explanation). As used herein, “including” (and its variants) means “including without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give one party the express or implied right, power or authority to create any duty or obligation of the other party.