Terms of Service
Welcome to MessagePath.com (the “Site”), a service operated by the Cognifyd Corporation (“MessagePath”, “we”, “ us”, or “our”). The Site and related products and services provide users with an “intelligent” proofreading application on the web and installed on your computer (e.g. a browser extension or a locally installed application on your computer) to provide feedback for workplace and work related activities (collectively, “Services”).
By accessing the website at MessagePath.com or Cognifyd.com or any associated installed service (e.g. browser extension of other installed applications), you are agreeing to be bound by these terms of service, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this website are protected by applicable copyright and trademark law.
Visitors. A Visitor may browse the Site in accordance with this Agreement, but may no have access to all our Services without either first becoming a Subscriber or having someone subscribe on his or her behalf.
Subscribers. To start a Subscription, whether on your own behalf or on behalf of multiple individuals, you must (i) provide your email address or a username and select a password or (ii) access the Services through a third-party messaging platform. We will refer to your email address or username and your password for the Services, and your username for the third-party messaging platform used to access the Services, if applicable, as your “Credentials.” Each Subscriber is responsible for the acts and omissions of its End Users (as defined below), including any USER DATA made available by any End User.
End Users. If you access the Services as an employee, contractor or agent of a Subscriber, you are a “Subscriber End User.” Each Subscriber End User must use his or her own Credentials. In some cases, a Subscriber has invited you to interact via the Services with the Subscriber and/or one or more Subscriber End Users. In such event, you may have the ability to access certain features of the Services without a Subscription. If you access the Services as an employee, contractor, agent, or invitee of a Subscriber, but do not provide Credentials, you are a “Non-Subscriber End User.” (Subscriber End-Users and Non-Subscriber End Users are referred to collectively as “End Users.”) As a Non-Subscriber End User, your access to the Services may be limited. If you are an End User, you further acknowledge and agree that the Subscriber may select one or more administrators to control, manage and use the Services on your and/or its behalf (each, an “Administrator”), and the Administrators may grant (or may grant to other Subscriber End Users) certain privileges such as access to and control of the USER DATA, for which you may bear responsibility. Subscribers, Subscriber End Users, Non-Subscriber End Users, and Visitors are referred to collectively as “Users.”
Accessing the Services. Certain features and functions of the Services may be accessible through a third-party account, for example, a third-party messaging platform. You may link your account for the Services with your third-party accounts, or a Subscriber or End User may link its account for the Services with its third-party accounts and invite you to interact with the Services via such third-party account; in either case only to the extent permitted under the applicable terms and conditions that govern your use of each third-party account. You represent that if you allow us to access your third-party account, or if a Subscriber allows us to access your third-party account on your behalf, you are entitled to disclose your third-party account login information to us and/or grant us access to your third-party account without breach by you of any of the terms and conditions that govern your use of the applicable third-party account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such third-party service providers. You acknowledge and agree that by granting us access to any of your third-party accounts (including any third-party accounts for any Subscriber End Users or Non-Subscriber End Users who a Subscriber invites to use the Services or on whose behalf a Subscriber provides information to us), we may access, make available and store any information, data, text, sound, photographs, graphics, video, messages, tags and/or other materials accessible that you have provided to and/or stored in your third-party accounts relating to your use of our Services or that you have provided to and/or otherwise made available through your interactions with a Subscriber and/or End Users through their third-party accounts (collectively, “Third-Party Account Data”). Depending on the third-party accounts and subject to the privacy settings in such third-party accounts, personally identifiable information that you post to your third-party accounts or that an End User posts to his or her third-party accounts may be available to other Users and/or Administrators. Please note that if a third-party account or associated service becomes unavailable or our access to such third-party account is terminated by the third-party service provider, then the Third-Party Account Data for that third-party service may no longer be available on and through the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND WE DISCLAIM ANY AND ALL LIABILITY FOR INFORMATION THAT MAY BE PROVIDED BY SUCH THIRD-PARTY SERVICE PROVIDERS.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services. You are solely responsible for any third-party fees that you incur when accessing the Services.
2. Use of Services
User Data. Third-Party Account Data and all other data and information provided by you to or through the Services, and/or otherwise relating to your use of the Services, shall be referred to as “USER DATA”. As between us and you, you shall own all USER DATA you provide to or through the Services.
Access. We will use commercially reasonable efforts designed to restrict access to the USER DATA of a Subscriber and its End Users to the other End Users and any Administrators of such Subscriber. As an interactive and collaborative service, however, the USER DATA of an End User will generally be available to other End Users under the same Subscription, subject to any permissions or restrictions set by one or more Administrators. Administrators shall have access to any and all USER DATA posted or otherwise made available to or through the Services and to any and all communications between End Users or other communications made via the Services. No password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge that Site and the Services are not invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities.
Review. The Services are designed to interact with Users and assist with business related tasks. Except in connection with operating and improving the Services and resolving customer services issues, we do not undertake to review, inspect, edit or monitor any USER DATA. However, if we believe that a Subscription is being used for unlawful purposes or purposes that violate the terms of this Agreement (e.g., storage and distribution of any illegal material such as copyrighted content), we reserve the right to examine any USER DATA. We reserve the right to refuse, remove or disable access to any USER DATA stored on our servers for any reason, including in the event that we believe that the USER DATA or its storage may be illegal or violate this Agreement.
License. You acknowledge that, subject to the terms of any agreement(s) with third-party service providers of your third-party accounts, we may use, and you hereby grant to us a limited, non-exclusive, transferable, perpetual, irrevocable license to use, reproduce, modify, display, perform, and creative derivative works of any USER DATA: (a) to provide the Services hereunder, and (b) for our business purposes, including to use, display, modify and create derivative works of the USER DATA to create and compile Aggregate Data, including insights, analysis and statistics for training (both human and computer) and other business purposes. “Aggregate Data” means aggregated statistics and/or data created or derived by us from USER DATA or our provision or your use of the Service; provided, however, that such Aggregate Data will not identify Subscriber or any Subscriber End User. We will own all right, title and interest in and to the Aggregate Data.
Performance. You acknowledge that our Services are for informational purposes and that the analysis and feedback we provide does not imply results. No guarantee of performance is provided with our Services based on decisions made based on our analysis and feedback.
FEES. As a Subscriber, you agree to pay our then-current and applicable subscription fees (as listed on the Site or pursuant to your customer agreement) for the Services, based on the subscription type for which you sign up. Your use of the Services is subject to the restrictions established in your applicable plan (e.g., limitations on storage amounts or the number of accounts or End Users). If you are an End User who is an employee, contractor or agent of a Subscriber, your business or organization may pay fees on your behalf. If you are a Visitor or a Non-Subscriber End User who was invited to interact with the Services by a Subscriber or other End User, you will not owe any fees, though your use of the Services will be subject to the terms of this Agreement. MessagePath charges and collects in advance for use of certain Services. Unless you designate in your Subscription preferences or notify us that you do not want your Subscription to be auto-renewed, you agree that we may automatically renew your Subscription to the Services and automatically charge you the then-current renewal fees for such renewed Subscription using the credit card or other payment mechanism associated with your subscription at the beginning of each recurring period.
Free Trials. If you register on the Site for a free trial, we will make the Services available to you on a trial basis free of charge until the earlier of (i) the end of the free trial period for which you registered or are registering to use the applicable Service or (ii) the start date of any Services to which you Subscribe. All provisions of this Agreement will apply during your free trial, unless otherwise set forth herein, and additional trial terms and conditions may govern your trial. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY USER DATA (NOT INCLUDING AGGREGATE DATA) SAVED DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A PAID SUBSCRIPTION OR EXPORT SUCH DATA BEFORE THE END OF THE TRIAL PERIOD (TO THE EXTENT WE, IN OUR SOLE DISCRETION, ELECT TO MAKE SUCH FUNCTIONALITY AVAILABLE).
Non-Payment. You further agree that we may suspend your access to any Services if, at any time, you have not paid all fees that you owe to us. In the event we are unable to collect the fees you owe us, we may take any other steps we deem necessary to collect such fees from you, and that you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys’ fees. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less.
Refunds. In the event of termination of a Service, we may provide you with a refund of any pre-paid, but unused fees related to such Service, effective at the beginning of the next month of your Service. No refund shall be paid for the current month’s services, regardless of the day on which you cancel the Services. We will issue the refund within 60 days of when your cancellation request is processed. You will not be entitled to any refund for our termination of the Services based upon your breach.
Taxes. The fees set forth herein are net of any applicable sales tax. If any fees for Services under this Agreement are subject to sales tax in any jurisdiction and you have not remitted the applicable sales tax to us, you will be responsible for the payment to the relevant tax authority of such sales tax and any related penalties or interest. You will indemnify us for our liability or expense we may incur in connection with such sales tax. “Sales tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that we are permitted to pass to our customers, which is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax. You agree to make all payments of fees to us free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to us will be your sole responsibility and, upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
Ownership. You acknowledge and agree that the software, code, proprietary methods and systems used to provide the Site or Services (“Our Technology ”) are: (i) copyrighted by us and/or our licensors or suppliers under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by us or our suppliers or licensors. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, reverse-engineered or redistributed in any way without our prior written permission, which we may withhold in our sole and absolute discretion. This Agreement provides you with access to the Services. No license is granted hereunder to Our Technology.
User content. You are solely responsible for all text, documents or other content or information uploaded, entered or otherwise transmitted by you in connection with your use of the Services and/or Software (“User Content”). User Content includes, among other things, any mistakes contained in the content or information transmitted by you. MessagePath has no obligation to monitor any User Content and shall have no liability to you or any other person or entity with respect thereto, including, without limitation, liability with respect to any information (including your confidential information) contained in or apparent from any User Content. You warrant, represent and covenant that you own or have a valid and enforceable license to use all User Content, and that no User Content infringes, misappropriates or violates the rights (including, without limitation, any copyrights or other intellectual property rights) of any person or entity or any applicable law, rule or regulation of any government authority of competent jurisdiction. MessagePath is not responsible for the loss, corruption or other changes to User Content. Without limiting the foregoing, any feature(s) of the Services and/or Software that may permit you to temporarily save or otherwise store User Content is offered for your convenience only and MessagePath does not guarantee that the User Content will be retrievable. You are solely responsible for saving, storing and otherwise maintaining User Content including by maintaining backup copies of your User Content on appropriate independent systems that do not rely on the Services and/or Software.
By uploading or entering any User Content, you give MessagePath (and those it works with) a non-exclusive, worldwide, royalty-free and fully-paid, transferable and sublicensable, perpetual, and irrevocable license to copy, store and use your User Content in connection with improving underlying the Software and Services.
Trademarks. Certain of the names, logos, and other materials displayed on the Site or via the Services constitute trademarks, trade names, service marks or logos (“Marks”) of MessagePath or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with and will inure to us or those other entities.
Third Party Software. Any use of third-party software provided in connection with the Site or Services will be governed by such third parties’ licenses and not by this Agreement.
Feedback. Any comments, ideas and/or reports about the Site or Services that you provide to us, whether in written or electronic form (“Feedback”), shall be considered our proprietary and confidential information, and you hereby irrevocably transfer and assign to us all intellectual property rights embodied in or arising in connection with such Feedback, and any other rights or claims that you may have with respect to any such Feedback.
MODIFICATIONS TO THE SERVICES. We may, in our sole discretion, upgrade, enhance, change and modify the Services, including by discontinuing a Service or any aspect or feature thereof (collectively, “Modifications”). Any Modifications will be subject to this Agreement, and we will provide notice of adverse and material changes to this Agreement by posting them on our Site. It is your responsibility to check the Site periodically. You agree to be bound to this Agreement, as modified. If you do not agree to the modified Agreement, you are not permitted to use the Services and must terminate your subscription immediately. The terms of any new Agreement shall apply from and after the effective date thereof.
GENERAL RULES OF USER CONDUCT. It is our goal to make access to our Site and Services a good experience for all Users. You agree not to, and represent and warrant that you will not (nor will you cause or permit any third party to), reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, use the Site or Services or access to the Site or Services for any purposes other than that for which the Site or Services are being provided to you, or do any of the following:
- Conduct or promote any illegal activities while using the Site or Services;
- Attempt to reverse engineer or jeopardize the correct functioning of the Site or Services, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site or Services;
- Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;
- Use the Site or Services to stalk, harass or harm another individual;
- Replicate the Services, in whole or in part, or use the Services to develop or offer a similar or competitive website, application, product or service, or for any other competitive purpose;
- Interfere in any way with the proper functioning of the Site or Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;
- Use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on the Site, Services or the content contained therein for commercial use without our prior express written permission;
- Use any metatags or other “hidden text” using MessagePath’s name or trademarks;
- Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or
- Mirror or frame the Site, Services or the content contained therein, place pop-up windows over its pages, or otherwise affect the display of its pages.
DURATION OF ACCESS. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. We may provide you refunds in our sole discretion, but we are in no event required to provide you a refund if we terminate this Agreement for cause. Upon termination or expiration of your access to the Services, you will no longer have the right to access or retrieve your USER DATA through the Site. Upon expiration of a free trial that is not followed by a paid Subscription, or beginning thirty (30) days after any termination or expiration of your paid Subscription, you acknowledge and agree that we may delete any or all of your USER DATA. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES OR DELETION OF YOUR USER DATA. TERMINATION OF YOUR SUBSCRIPTION WILL IN NO WAY MODIFY, CHANGE OR VOID ANY PAYMENT OBLIGATIONS YOU MAY HAVE INCURRED UP TO THE DATE OF TERMINATION THROUGH YOUR USE OF THE SITE OR ANY SERVICES, WHETHER SUCH OBLIGATION IS TO US OR A THIRD PARTY.
THIRD-PARTY CONTENT AND OTHER WEBSITES. Content from advertisers and other third parties may be made available to you through the Site and/or the Services. Because we do not control such content, you agree that we are not responsible for any such content. We do not make any guarantees about the accuracy, currency, suitability, or quality of the information in such content, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content made available by other Users, advertisers, and other third parties or violation of any third-party rights related to such content. The Site and Services may contain links to websites not operated by us. We are not responsible for the content, products, materials, or practices (including privacy practices) of such websites. We make no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, nature or reliability of third-party websites, products or services accessible by hyperlink or otherwise from the Site or Services. We provide these links for your convenience only and we do not control such websites. Our inclusion of links to such websites does not imply any endorsement of the materials on such third-party websites or any association with their operators. It is your responsibility to review the privacy policies and agreements of any other website you visit. You agree that in no event will we be liable to you in connection with any websites, content, products, materials, or practices of any third party, including other Users.
The materials on MessagePath’s website are provided on an ‘as is’ basis.MessagePath makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties including, without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights.
Further, MessagePath does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its website or otherwise relating to such materials or on any sites linked to this site.
DISCLAIMER OF WARRANTIES. EXCEPT AS WE (IN OUR SOLE DISCRETION) OTHERWISE AGREE UPON IN A SEPARATE WRITTEN AGREEMENT, WE ENDEAVOR TO OFFER THE SERVICES TO ALL OF OUR USERS ON A REASONABLY CONSISTENT BASIS. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT PROTECTION OF USER DATA, NOR DO WE GUARANTEE DATA AVAILABILITY WHATSOEVER. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND/OR SERVICES IS AT YOUR SOLE RISK. BOTH THE SITE AND SERVICES ARE PROVIDED BY US ON AN “AS IS” AND “AS AVAILABLE” BASIS.WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA OR INFORMATION AND SYSTEM INTEGRATION. WE MAKE NO WARRANTY THAT THE SITE AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICES, OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER, MOBILE DEVICE, OR HARDWARE, OR ANY LOSS OF DATA THAT RESULTS FROM SUCH MATERIAL AND/OR INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE, SERVICES, OR OTHERWISE WILL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
In no event shall MessagePath or its suppliers be liable for any damages (including, without limitation, damages for loss of data or profit, or due to business interruption) arising out of the use or inability to use the materials on MessagePath’s website, even if MessagePath or a MessagePath authorized representative has been notified orally or in writing of the possibility of such damage. Because some jurisdictions do not allow limitations on implied warranties, or limitations of liability for consequential or incidental damages, these limitations may not apply to you.
LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SITE AND TO PROVIDE THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE, THE SERVICES OR YOUR USER DATA, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN THE AGGREGATE, TO THE AMOUNT OF FEES ACTUALLY PAID BY YOU FOR USE OF THE SITE OR SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL WE OR OUR LICENSORS OR SUPPLIERS BE HELD LIABLE FOR ANY DELAY OR FAILURE IN PERFORMANCE RESULTING DIRECTLY OR INDIRECTLY FROM ACTS OF NATURE, FORCES, OR CAUSES BEYOND OUR REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET FAILURES, COMPUTER EQUIPMENT FAILURES, TELECOMMUNICATION EQUIPMENT FAILURES, OTHER EQUIPMENT FAILURES, ELECTRICAL POWER FAILURES, STRIKES, LABOR DISPUTES, RIOTS, INSURRECTIONS, CIVIL DISTURBANCES, SHORTAGES OF LABOR OR MATERIALS, FIRES, FLOODS, STORMS, EXPLOSIONS, ACTS OF GOD, WAR, GOVERNMENTAL ACTIONS, ORDERS OF DOMESTIC OR FOREIGN COURTS OR TRIBUNALS, OR NON-PERFORMANCE OF THIRD PARTIES.
INDEMNIFICATION. You agree to indemnify, defend and hold harmless MessagePath, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants and agents from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from (i) any of your USER DATA or content you upload to or use in connection with the Services, (ii) your use of the Site or Services, (iii) your violation of this Agreement, (iv) your violation of any rights of any other person or entity, (v) any disputes between you and another User of the Services; and (vi) any viruses, Trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by you into the Site or Services.
ELECTRONIC COMMUNICATIONS. We can only give you the benefits of our Service by conducting business through the Internet, and therefore we need you to consent to our giving you Communications electronically. This Section informs you of your rights when receiving Communications from us electronically. For contractual purposes, you (i) consent to receive Communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communication(s)”) that we provide to you electronically satisfy any legal requirement that such Communication would satisfy if it were in writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may also receive a copy of this Agreement by accessing this Site. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Site and Services. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.
INTERNATIONAL USERS. The Services can be accessed from countries around the world. This availability of the Services outside the United States does not imply that we intend to announce such Services in your country. The Services are offered by us from our facilities in the United States of America. We make no representation that the Services are appropriate or available of ruse in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are responsible for compliance with local law.
5. Accuracy of materials
The materials appearing on MessagePath’s website could include technical, typographical, or photographic errors. MessagePath does not warrant that any of the materials on its website are accurate, complete or current. MessagePath may make changes to the materials contained on its website at any time without notice. However MessagePath does not make any commitment to update the materials.
MessagePath has not reviewed all of the sites linked to its website and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by MessagePath of the site. Use of any such linked website is at the user’s own risk.
MessagePath may revise these terms of service for its website at any time without notice. By using this website you are agreeing to be bound by the then current version of these terms of service.
8. Governing Law
These terms and conditions are governed by and construed in accordance with the laws of CA and you irrevocably submit to the exclusive jurisdiction of the courts in that State or location.
GENERAL TERMS. You are responsible for compliance with all applicable laws. Except as otherwise provided, this Agreement and the relationship between you and MessagePath will be governed by the laws of the state of Delaware, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state and (b) you consent to exclusive personal jurisdiction and venue in, and agree to service of process issued or authorized by, any court located in Delaware. This Agreement is personal to you, and you may not transfer, assign or delegate your rights and/or duties under this Agreement to anyone else and any attempted assignment or delegation is void. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder. The paragraph headings in this Agreement, shown in boldface type, are included only to help make this Agreement easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. No waiver by us will have any effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. This Agreement constitutes the complete and exclusive agreement between you and us with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.If you are a California resident, you waive California Civil Code §1542, which says: “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.”
ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE. All controversies, disputes, demands, counts, claims, or causes of action between you and MessagePath arising out of, under, or related to this Agreement or our privacy practices (including any action we take or authorize with respect to information about or provided by you) shall be settled exclusively through binding 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 this Agreement, and unless 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”).
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this Agreement, 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.
You and MessagePath must abide by the following rules: (i) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (ii) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by you and MessagePath, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (iii) the arbitrator’s ruling is binding and not merely advisory; (iv) ANY CLAIMS BROUGHT BY YOU OR MESSAGEPATH MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (v) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (vi) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, MessagePath 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, (vii) MessagePath also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (viii) the arbitrator shall honor claims of privilege and privacy recognized at law; (ix) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either you or MessagePath shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/ MessagePath customer; and (x) 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.
With the exception otherwise noted in these terms of service (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, parts of these terms of service are found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor MessagePath shall be entitled to arbitration. In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between you and MessagePath shall be exclusively brought in the state or federal courts specified herein.
For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
SURVIVAL. All limitations on liability explicitly set forth herein and our proprietary rights in and to the Site, any materials provided by us, Our Technology and the Services, will survive the expiration or termination of this Agreement for any reason.
NOTICE; VIOLATIONS. We may give notice to you by email, a posting on the Site, or other reasonable means. You must give notice to us in writing via email to [email protected] or as otherwise expressly provided. Please report any violations of this Agreement to [email protected]
GOVERNMENT USE. If you are accepting this Agreement on behalf of a United States federal government entity, please email us at [email protected] for the applicable amendments.
The Site and Services are not directed to children and children are not eligible to use our Site or Services. Protecting the privacy of children is very important to us. We do not collect or maintain Personal Information from people we actually know are under 13 years of age, and no part of our Site or Services is designed to attract people under 13 years of age. When the Site or Services collect age information, and users identify themselves as under 13, we will take steps to remove that user’s Personal Information from our databases and to prevent the user from utilizing the Site or Services.
How We Collect Information.
In general, the Personal Information we gather enables us to provide the Site and Services to you. We collect Personal Information that you submit to us voluntarily when you register with us or when you use the Site or Services. We also collect Personal Information from any third party who may submit such Personal Information to us (e.g., a user who provides us with your Personal Information when registering or inviting multiple individuals to use the Services). To create an “Account” with a user name, we require certain Personal Information, including a name and email address. In order for a third party to create an Account on your behalf, we may require your Personal Information so that you may have access to certain features of the Site or Services. Any third party registering on your behalf is responsible for obtaining any and all necessary consents from you prior to submitting such Personal Information. All payments on the Site are processed by our service providers who collect your credit card information directly, and we will not have access to or see your credit card information as part of such transaction. You can choose not to provide us with certain information, but this may limit the features of the Site or Services you are able to use.
When you send an email or other communication to us, we may retain those communications in order to process your inquiries, respond to your requests and improve our Services.
Information Collected by Our Servers. Our servers (which may be hosted by a third-party service provider) collect information from you, including your browser type, operating system, Internet Protocol (“IP”) address (a number that is automatically assigned to your computer when you use the Internet, which may vary from session to session), domain name, clickstream data, and a date/time stamp for your visit.
Pixel Tags. In addition, we use pixel tags (also referred to as clear gifs, web beacons, or web bugs). Pixel tags are tiny graphic images with a unique identifier, similar in function to cookies, which are used to track online movements of web users. In contrast to cookies, which are stored on a user’s computer hard drive, pixel tags are embedded invisibly in web pages. Pixel tags also allow us to send e-mail messages in a format users can read, and they tell us whether e-mails have been opened to help us send messages that are of interest to our users. We may use this information to reduce or eliminate messages sent to a user.
We will use your Personal Information to:
Administer your Account;
Process your payments;
Provide you with the Site, the Services, and customer support;
Tailor the features, performance and support of the Site and/or Services to you;
Market products and services to you that we believe may be of interest to you;
Respond to your requests, resolve disputes and/or troubleshoot problems;
Improve the quality of the Site and the Services; and
Communicate with you about the Site and the Services.
We may also use your Personal Information to create Anonymous Information records by excluding information that makes the information personally identifiable to you.
We will communicate with you primarily in the form of emails. You can opt out of receiving certain communications from the Site and/or Services by clicking the “Unsubscribe” link at the bottom of each email or emailing us at [email protected] Please note that even if you unsubscribe or opt-out, we may still send you Site and Service related communications (e.g. emails related to your reservations or comments).
We reserve the right to use Anonymous Information for any purpose.
How We Disclose Information.
We may disclose certain Personal Information:
To third-party vendors who help us provide the Site or Services to you, including vendors that process payments for us and our subcontractors;
To third parties to which you ask us to send or provide Personal Information, including as described above;
We reserve the right to disclose Anonymous Information publicly without restriction, including to third-party vendors who may help us enhance or provide the Site and/or Services or to third parties.
Information Disclosed to Third Parties
Updating and Controlling Your Information.
If you have an Account with us, you may update certain of your Personal Information on our Site. You may also email us at [email protected] You may request that we delete your Personal Information, but please note that we may be required (by law or otherwise) to keep this information and not delete it (or to keep this information for a certain time, in which case we will comply with your deletion request only after we have fulfilled such requirements). When we delete Personal Information, it will be deleted from the active database, but may remain in our archives and we may also retain Personal Information about your use of our Site and/or Services. Once we disclose some of your Personal Information to third parties, we cannot access that Personal Information any longer and cannot force the deletion or modification of any such information by the third parties to which we have made those disclosures.