Last revised July 19, 2013
IF YOU ARE USING THE SERVICE ON BEHALF OF AN ENTITY (SUCH AS YOUR EMPLOYER), YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY TO THESE TERMS, AND YOUR AGREEMENT TO THESE TERMS WILL OPERATE AS AN AGREEMENT BETWEEN THE ENTITY AND SIGNAL.
IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS OR IF YOU DO NOT HAVE LEGAL AUTHORITY TO BIND THE ENTITY ON WHOSE BEHALF YOU ARE ACCESSING THE SERVICE, DO NOT USE THE SERVICE.
Message Mediums LLC, dba Signal ("Signal," "we," "us," or "our"), owns or operates web-based applications for managing mobile, email, and social media marketing campaigns and customer databases (“Applications”) and proprietary application program interfaces that enable communication between third-party software or other technologies and Signal's technology (collectively, the “APIs,” and individually, an “API”).
These Terms apply to the Applications, APIs and our sites and platforms that post a link to these Terms (including, without limitation, signalhq.com) (however accessed or used, whether via a personal computer, mobile device or otherwise) (collectively, the "Service"), and set forth the terms and conditions by which Signal permits you (“You,” “your,” or “User”) to access and utilize the Service. You agree to these Terms by accessing or using the Service.
When using particular features of the Service, both these Terms and a separate guidelines document, contract, end user license agreement, commercial services agreement or similar agreement may apply to your use of that feature or service ("Additional Terms"). To the extent there is a conflict between these Terms and any Additional Terms, the Additional Terms will control unless the Additional Terms expressly state otherwise.
ARBITRATION NOTICE: Except for certain types of disputes described in the Arbitration/Governing Law/Disputes section below, you agree that all disputes between you and Signal with regard to these Terms and your use of the Service will be resolved by binding, individual ARBITRATION and you waive your right to participate in a class action lawsuit or class-wide arbitration.
The following definitions apply to these Terms:
“Message” means any Mobile Message, electronic mail, message delivered on or through a social networking platform, and any other form of message sent by User in connection with User's use of the Service.
“Mobile Message” means all SMS, MMS and other messages that a User sends to a Message Recipient's mobile device using the Service. Mobile Messages do not include email or Messages delivered on or through a social networking platform
“Message Content” means the text, images, and other content (including source or object code) contained in a Message.
“Message Recipient” means the intended recipient of a Message initiated or sent by User by using the Service.
“User Data” means the personally identifiable information and non-personally identifiable information from or about Message Recipients, including, without limitation, mobile phone numbers, social media identifiers and email addresses, that User provides to Signal or that Message Recipients provide to Signal on User's behalf when signing up to receive messages from User.
"Widget" means a module of Signal's software or code that displays content provided by Signal or collects User Data, which can be installed and executed on User's webpage or within User's app.
User agrees that as between User and Signal, Signal owns and retains all rights, title, and interest in and to the “Signal Materials,” which are:
All materials that are included in or are otherwise a part of the Service (including past, present and future versions of the Service), including, without limitation: graphics; layout; text; instructions; images; trademarks, logos, service marks; audio; videos; designs; contests; voting; technology; applications; artwork; information; data; designs; compilation; advertising copy; domain names; any and all copyrightable material (including source and object code); the "look and feel" of the Service; the compilation, assembly and arrangement of the materials of the Service; and intellectual property and proprietary rights therein;
All information and materials made available by Signal in connection with the Service, including, without limitation, all trade secrets, financial data, tools, software, concepts, methodologies, inventions, patterns, algorithms, techniques, know-how, formats, engines, modules, applications, controls, data, and other content, regardless of whether such materials were created or developed prior to or during the term of this agreement between you and Signal.
Except as expressly set forth in these Terms or expressly granted to you in writing by Signal, no rights in the Signal Materials (either by implication, estoppel or otherwise) are granted to User. To the extent that User obtains any rights in the Signal Materials due to Signal's or User's performance of their obligations under these Terms, User hereby irrevocably assigns to Signal all rights, title and interest in the Signal Materials.
As between User and Signal, User is the owner of the User Data.
Subject to User's strict compliance with these Terms and any Additional Terms, Signal grants User a limited, non-exclusive, revocable, non-assignable and non-transferable license during the Term (as defined in Section 18 below) to use the Services. Notwithstanding the prior sentence, User understands and agrees that its access to any API will be subject to Signal's sole control and, accordingly, Signal may limit or terminate User's access to an API at any time without notice to User and without liability for Signal.
User grants to Signal a royalty-free, fully paid up, transferable, worldwide right and license, for the purpose of Signal performing the Service during the Term, to incorporate, reproduce, digitize, adapt, modify, format, transmit, distribute, publicly perform, publicly display and otherwise use any materials submitted by User to Signal or used by User to access the Services. User further grants Signal a royalty-free, fully paid up, transferable, worldwide right and license to store, use and transfer the User Data to provide the Service to User, and to use User Data that is not personally identifiable or rendered non-personally identifiable for Signal's business purposes.
User acknowledges and warrants:
User will access and use the Service and the Signal Materials only as authorized by Signal, and not by improper or fraudulent means or activities such as by robot, spider or scraper.
User has the right to agree to these Terms and to perform its obligations under these Terms;
User has the right to grant to Signal the licenses granted by it during the Term;
By agreeing to these Terms and performing its obligations under these Terms, User does not and will not violate, conflict with, breach, default or otherwise adversely affect any agreement, right or obligation existing between User and any other person, firm or entity;
User understands that Signal may modify, improve, update or upgrade the Service, including without limitation, the "look and feel" of the Service, at its sole discretion and at any time and that User will adopt any such modifications, improvements, updates or upgrades as required by Signal.
User understands that User Data is available for download by User via the Service during the Term. You agree to periodically download and backup User Data during the Term. Signal will not make User Data available to User after any termination of these Terms.
User will comply fully with each restriction and obligation stated in Section 5 of these Terms.
Prohibited Content. The following Message Content is prohibited:
- Unsolicited Messages.
- Misleading or fraudulent content, or content that constitutes unfair or deceptive trade practices. User must not use the Service to send misleading, false, or fraudulent Message Content. All Message headers (including, without limitation, sender name, address, email address, and subject line) must accurately reflect the identity of User and the Message Content, and must not be forged or in any way disguise the origin of the email. User must not use the Service to solicit or induce any person to participate in pyramid schemes, chain letters, multi-tiered marketing schemes, or similar activities.
- Confidential or sensitive information. User will not use the Service to collect from or send to Message Recipients any confidential or sensitive information (including, without limitation, social security numbers, drivers license number or state-issued identification card number, financial account number, credit card or debit card number, any health or medical information, passwords, or security credentials), or transmit such information about any Message Recipients to Signal.
- Pornography or sexually explicit content.
- Message Content that violates any Laws (defined in Section 5.f below).
- Prohibited Industries, Services, and Products. The Service may not be used to send any Messages involving the following industries, services, and products:
- Adult services or products, such as escort or dating services or adult novelty items
- Pharmaceutical products, or nutritional, herbal, and vitamin supplements
- Illegal drugs
- Work from home, make money online, or lead generation opportunities
- Online trading, day trading tips, or stock market-related content
- Illegal gambling or prohibited lottery services or products
- Weapons or explosives
- Affiliate marketing or multi-level marketing
- Credit repair or get out of debt opportunities
- Mortgages and loans
- List brokers or list rental services
User must have the right to use and disseminate the Message Content. User must have all rights to use and disseminate the Message Content from all persons who contributed in any way or have any rights to your Message Content, or otherwise appear in the Message Content. User's Message Content must not violate, misappropriate or infringe upon any copyright, patent, trade secret, trade identity, or any personal, moral, literary, privacy, publicity or other intellectual property or proprietary right.
- Do not use purchased, rented, or third-party lists. User may not use the Service to transmit messages to any lists of contacts that were purchased, rented, or otherwise comes from a third-party.
- User must possess appropriate consent from all Message Recipients consent. User must not submit to Signal User Data for any person who has not affirmatively and expressly consented (as required by applicable Laws and Industry Guidelines) to receiving Mobile Messages and/or commercial emails, nor authorize the transmission of such Mobile Messages or commercial emails, nor take any action to transmit any such Mobile Messages or emails. User must possess the form of consent required by applicable Laws and Industry Guidelines (as hereafter defined).
- Comply with all applicable laws and regulations. User must comply with, and will ensure that its use of the Service (including without limitation, all of its messaging campaigns and Message Content, promotions, and advertisements related thereto) complies with all applicable laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authorities including, without limitation, the Telephone Consumer Protection Act of 1991, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, the Children's Online Privacy Protection Act, along with regulations issued pursuant to any such acts, and any regulation of the United States Securities and Exchange Commission or any stock exchange (collectively, “Laws”).
- Comply with all applicable industry guidelines. User must comply with, and will ensure that its use of the Service (including, without limitation, all of its messaging campaigns and Message Content and advertisements related thereto) complies with, all applicable industry guidelines, including, without limitation, the then-current version of the Mobile Marketing Association's Consumer Best Practices Guidelines and any applicable self-regulatory guidelines applicable to the content or distribution of a Mobile Message (collectively, “Industry Guidelines”). Your Messages and Message Content must not cause Signal to violate any Laws or Industry Guidelines.
- Comply with all other requirements communicated to User. User must comply with any requirements, procedures, policies or regulations of Signal, any wireless carrier, or text message aggregator that are communicated to User.
- No use of the Service for illegal, violent, or inappropriate purposes. You must not use the Service (including sending Message Content or displaying a Widget) to or in any manner that violates any law, promotes any illegal activity, promotes violence, or describes how to perform an illegal or violent act. Your use of the Service must not be inappropriate in our sole discretion (including, but not limited to, use for purposes that are defamatory of any person or entity (including Signal), tortious, discriminatory, harmful to minors, obscene, lewd, threatening, abusive, harassing, intimidating, harmful, hateful, pornographic, violating of any person's privacy, or containing negative comments that are connected to race, national origin, gender, sexual preference, or physical handicap). If User violates the restrictions set forth in this paragraph (or elsewhere in these Terms), Signal reserves the right to take any action that it deems appropriate in Signal's sole discretion, including terminating your account and reporting you to law enforcement.
- Do not use the Service to deliver emails via Mobile Messages. Emails are inappropriate for this form of distribution.
- Timely respect opt-out or unsubscribe requests. User will notify Signal within seven (7) business days of any opt-out, unsubscribe request, or any other withdrawal of user consent to receive messages. User must regularly review any messages received in its account through the Service to determine if a Message Recipient has attempted to withdraw consent, unsubscribe, or opt-out.
- Do not use a third-party to unsubscribe individuals from your messages. User must use the Service to enable Message Recipients to unsubscribe or opt-out from User's messages, or User may manually remove Message Recipients. User may not use a third-party to unsubscribe or opt-out individuals.
- Do not use a third-party to send content created using the Service. Any content created on or through the Service must be sent through the Service, and not using any third-party.
- One account per person or legal entity. Except as permitted by Signal on a case by case basis, multiple accounts are not permitted. You may create multiple campaigns and manage multiple lists through a single account.
- Do not share your login credentials. Do not share your password, API token, or other login credentials with any other person. User is solely responsible for any activity that occurs under User's account.
- Do not damage the Service or anyone's computers. Your Message Content must not contain viruses, Trojan horses, malware, spyware or any other technologies that could negatively impact the operation of the Service or any computer system, including the systems of Message Recipients.
- Do not interfere or tamper with the Service. User may not interfere with, circumvent, modify, impair, disrupt, or alter any feature (including security features), function, operation, or maintenance of the Service. User will not bypass any robot exclusion headers (including using any device, software, or routine to accomplish that goal) contained in the Signal Materials or the Service, or interfere or attempt to interfere with the proper working of the Signal Materials or the Service. User will not take any action that imposes an unreasonable or disproportionately large load on the Service or Signal Materials, including, without limitation, on Signal's servers, as determined by Signal in its sole discretion.
- Do not exceed authorized access. You may not exceed your authorized access to the Service (including via the use of any automated system or unauthorized script, including without limitation, any spider, robot (or “bot”), scraper or offline reader that accesses the Service.
- Do not reverse engineer or copy the Service. You may not reverse engineer, decompile, decode, or disassemble any aspect of the Service, nor may you use any aspect of the Service to compete with the Service.
- Do not interfere with Signal's intellectual property. You may not remove or alter, Signal's trademark, copyright or other proprietary rights notices, as provided by Signal in connection with Signal's provision of the Service, unless expressly stated in writing by Signal.
USER SECURITY OBLIGATIONS AND PROCEDURES
User warrants and represents that the systems, software or hardware User uses to interact with the Service will not contain any computer code that will disrupt, disable, harm, or otherwise impede the operation of the Service (including, without limitation, any software, hardware, firmware, computer system or network involved in the operation of the Service). User also represents and warrants that it will keep all information pertaining to Message Recipients secure.
User will promptly notify Signal if User becomes aware of any actual or attempted unauthorized use, violation, compromise or breach of security (electronic or physical) that impacts any servers, databases, logs or other materials generated from or used in conjunction with the Service or Signal Materials (“User Infrastructure”), whether the incident originates within User or externally (“Security Incident”) and will immediately use continuous efforts to address and correct any Security Incident. User agrees to assist Signal in the investigation of any Security Incident and to take action that is reasonably necessary to prevent the continuation or recurrence of any Security Incident. Signal will have the right, but not the obligation, to perform an independent audit to ensure that all necessary, remedial actions have been performed to correct any Security Incident. At any time during the Term, Signal will have the right, but not the obligation, to conduct, or cause a qualified independent third party to conduct, vulnerability assessment testing of User Infrastructure. User will maintain appropriate processes to identify and correct any weakness at the network services, operating system, application or physical level that could allow a Security Incident to occur. Upon five (5) days prior written notice, or immediately during an at risk situation, User will permit Signal representatives to access, during normal business hours, the location where User Infrastructure is located, for purposes of performing inspections or walk-throughs in order to confirm compliance with these Terms.
User agrees that Signal may (but is under no obligation to) periodically audit and review User's use of the Service for compliance with these Terms and any Additional Terms. Such audit may include, without limitation, pre-screening or post-hoc review of Message Content, User's use of the Service, and User's web site. Audits may be conducted without notice to User. Further, upon Signal's request, User agrees to provide such documentation or substantiation requested by Signal to verify User's compliance with these Terms.
FEES & TAXES
Signal may charge a fee (“Fee”) in exchange for providing the Service and the Signal Materials and may require payment of all Fees in full prior to providing the Service. User agrees to pay the applicable Fee and authorizes Signal and its authorized agents to process all charges incurred by User. User agrees that it will be solely responsible for the payment of all federal and state taxes, excluding taxes attributable to Signal's gross income, in connection with the Service and agrees that it will reimburse Signal for all such taxes to the extent they are not included in the Fee.
Except for any costs expressly assumed in writing by Signal, User will be solely responsible for all costs and expenses relating to its use of the Service, and the exercise of its rights and performance of its obligations under these Terms (including acquiring, installing, configuring, operating, and maintaining all equipment and software necessary to utilize the Services and Signal Materials).
Certain areas of the Service may require registration or may otherwise ask or require you to provide information to participate. When you choose to provide information to the Service, you agree to provide only true, accurate, current and complete information. If you register with us, you agree to be responsible for any activities that occur under your account or password, and you agree you will not sell or otherwise transfer your membership or any membership rights. Signal reserves the right to terminate your account or otherwise deny you access in its sole discretion without notice and without liability. You agree that you will be responsible for obtaining and maintaining all telephone, computer hardware and other equipment needed to access and use the Service. You also agree to comply with all rules, laws and regulations that are applicable to your use of the Service, including, without limitation, those governing your transmission or use of any software or data. You agree to notify Signal of any unauthorized use of your account.
The information provided on the Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject Signal to any registration requirement within such jurisdiction or country. Signal controls and operates the Service from offices located in the United States and makes no representations or warranties that the information, products or services contained on the Service are appropriate for use or access in other locations. Anyone using or accessing the Service from other locations does so on their own initiative and is responsible for compliance with United States' and local laws regarding online conduct and acceptable content, if and to the extent such laws are applicable. We reserve the right to limit the availability of the Service or any portion of the Service, to any person, geographic area, or jurisdiction, at any time and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that we provide.
Software related to or made available by the Service may be subject to United States export controls. Thus, no software from the Service may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of, any such country or on any such list.
The Service may provide links to certain web sites, services and features that are provided by third parties, including advertisers. In addition, some features of the Service include the ability to post on third party sites or services, which posts may be public ("Social Media Posts"). Social Media Posts may be subject to your agreement with that third party site or service or may be subject to terms of service provided by that third party site or service. If you choose to use the Service for Social Media Posts, you do so at your sole and absolute discretion and risk. Signal does not control any of these third party sites or services or any of their content. Accordingly, User understands and agrees that Signal is not responsible for services provided by third parties, even if facilitated by the Service.
Signal does not control any of these third party sites or any of their content. Accordingly, User understands and agrees that Signal is not responsible for your use of these services provided by third parties, and that your use of such services is subject to the terms and conditions established by such third parties. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE SERVICE INCLUDING, WITHOUT LIMITATION, THE PAYMENT AND DELIVERY OF PRODUCTS AND SERVICES, AND ANY TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS ASSOCIATED WITH ANY SUCH DEALINGS, ARE SOLELY BETWEEN YOU AND THE THIRD PARTY.
Descriptions of, references to, or links to products, services or publications within the Service do not imply endorsement of that product, service or publication.
User acknowledges that: (a) the Signal Materials; and (b) any other information that Signal may identify as confidential from time to time, is Signal's confidential information (the “Signal Confidential Information”). User agrees to: (i) keep confidential all Signal Confidential Information; (ii) not disclose or convey Signal Confidential Information to third parties; and (iii) treat Signal Confidential Information with the same degree of confidentiality and care with which User treats its own confidential information, but in no event less than a reasonable standard of care.
User acknowledges that the Signal Confidential Information is of extremely high value to Signal and that the disclosure or misuse of Signal Confidential Information would cause irreparable harm to Signal. In the event of any breach of User's obligations under this Section 13, Signal will, in addition to such other remedies as may be available to it at law or in equity, be entitled to enforce its rights by obtaining injunctive relief against User and its agents and employees without requirement of posting bond or proving actual damages. In the event User is ordered via a valid order of a court of competent jurisdiction to disclose any Signal Confidential Information, User will immediately notify Signal in writing and seek confidential treatment of such information.
DISCLAIMER OF WARRANTIES
USER UNDERSTANDS THAT THE SERVICE, INCLUDING WITHOUT LIMITATION THE ABILITY FOR USER TO SEND OR CAUSE THE TRANSMISSION OF MESSAGES, ARE NOT AVAILABLE ON ALL WIRELESS CARRIERS AND WIRELESS DEVICES. THE SERVICE, AND THE SIGNAL MATERIALS ARE PROVIDED "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS." USER FURTHER UNDERSTANDS AND AGREES THAT THE SERVICE AND THE SIGNAL MATERIALS MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR FOR UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY SIGNAL OR BY THIRD-PARTY PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND SIGNAL'S REASONABLE CONTROL WITHOUT NOTICE TO USER AND WITHOUT LIABILITY FOR SIGNAL. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, SIGNAL AND SIGNAL'S PARENTS, SUBSIDIARIES, AFFILIATES, AND THE OFFICERS, DIRECTORS, PRINCIPALS, REPRESENTATIVES, AGENTS, EMPLOYEES, SUCCESSORS, ASSIGNS, AND LICENSEES OF EACH OF THEM (COLLECTIVELY, THE “SIGNAL PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER ABOUT: (A) THE SERVICE; (B) THE SIGNAL MATERIALS; (C) THE ABILITY OF THE SERVICE, ANY MESSAGES OR OTHER CONTENT SENT THROUGH THE SERVICE TO WORK WITH ANY PARTICULAR HARDWARE, SOFTWARE, NETWORK, DATA, TELECOMMUNICATIONS EQUIPMENT OR WIRELESS CARRIER; (D) THE ACCURACY OF ANY USER DATA; (E) WHETHER OR NOT THE SERVICE OR THE SIGNAL MATERIALS WILL BE COMPATIBLE WITH AND/OR OPERATE WITH ANY OTHER HARDWARE, SOFTWARE, NETWORK, DATA, TELECOMMUNICATIONS EQUIPMENT OR WIRELESS CARRIER NOW OR LATER CONTEMPLATED, INCLUDING, WITHOUT LIMITATION, ANY OTHER SOFTWARE THAT MAY BE EMBEDDED IN OR USED IN CONJUNCTION WITH THE SERVICE OR THE SIGNAL MATERIALS; OR (F) ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION THROUGH THE SERVICE, THE MESSAGES, SIGNAL MATERIALS OR TELECOMMUNICATIONS EQUIPMENT. SIGNAL DOES NOT WARRANT THAT THE SERVICE, OR THE SIGNAL MATERIALS WILL BE COMPLETE, ACCURATE, UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE, THE MESSAGES OR THE SIGNAL MATERIALS OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
SIGNAL DOES NOT REPRESENT OR WARRANT THAT USER'S ACTIVITIES OR USE OF THE SERVICE, THE SENDING OF MESSAGES OR OTHER CONTENT, OR THE SIGNAL MATERIALS IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, SPECIFICALLY DISCLAIMS SUCH WARRANTIES. USER UNDERSTANDS THAT BY ACCESSING OR USING THE SERVICE OR THE SIGNAL MATERIALS IT ACTS AT ITS OWN RISK AND IT REPRESENTS AND WARRANTS THAT ITS ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE IT ACCESSES OR USES THE SERVICE OR SIGNAL MATERIALS. FURTHER, THE SIGNAL PARTIES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO THESE TERMS.
INDEMNIFICATION; LIMITATION OF LIABILITY
User agrees to defend, indemnify and hold harmless the Signal Parties from and against any and all claims, damages, costs, investigations, liabilities, judgments, settlements and expenses, including attorneys' fees, that directly or indirectly arise from or are otherwise directly or indirectly related to: (a) Message Content; (b) use of the Service; or (c) User's breach (actual or alleged) or anticipatory breach of these Terms; and (d) any misrepresentation made by User. User will cooperate as fully required by Signal in the defense of any claim. Signal reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, and User will not in any event settle any claim without the prior written consent of a duly authorized employee of Signal.
THE SIGNAL PARTIES WILL NOT BE LIABLE FOR USER'S OR A MESSAGE RECIPIENT'S USE OF OR ACCESS TO THE SERVICE, ANY MESSAGES OR OTHER CONTENT SENT THROUGH THE SERVICE, THE SIGNAL MATERIALS; THE FAILURE OF A MESSAGE TO REACH ANY OR ALL INTENDED RECIPIENTS; OR ANY DAMAGE TO ANY HARDWARE, SOFTWARE, NETWORK, DATA OR TELECOMMUNICATIONS EQUIPMENT, INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE, LOSS OF USER DATA OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION.
USER AGREES THAT AS BETWEEN USER AND SIGNAL, AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THAT WITH RESPECT TO THE TELEPHONE CONSUMER PROTECTION ACT OF 1991, 47 U.S.C. § 227, AND ITS REGULATIONS, 47 C.F.R. § 64.1200, USER, AND NOT SIGNAL, INITIATES OR CAUSES TO BE INITIATED ANY “TELEPHONE CALL” THAT RESULTS IN THE DELIVERY OF A MOBILE MESSAGE TO ANY CELLULAR TELEPHONE SERVICE, WHEN SUCH MOBILE PHONE NUMBER WAS USED TO SEND A MESSAGE ON BEHALF OF USER. USER AGREES THAT AS BETWEEN USER AND SIGNAL, AND TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THAT WITH RESPECT TO THE CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND MARKETING ACT OF 2003 AND ANY REGULATIONS PROMULGATED THEREUNDER, USER, AND NOT SIGNAL, IS THE “SENDER” OF ANY ELECTRONIC MAIL DELIVERED TO A MESSAGE RECIPIENT, WHEN SUCH MESSAGE WAS SENT ON BEHALF OF USER.
UNDER NO CIRCUMSTANCES WILL THE SIGNAL PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, OR THE PERFORMANCE OF, THE SERVICE, THE MESSAGES OR THE SIGNAL MATERIALS OR ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY SIGNAL OR LAW ENFORCEMENT AUTHORITIES REGARDING SIGNAL'S USE OF THE SERVICE, THE MESSAGES OR THE SIGNAL MATERIALS, EVEN IF FORESEEABLE OR IF SIGNAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER IN AN ACTION BASED IN TORT, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO USER. IN NO EVENT WILL SIGNAL'S TOTAL LIABILITY TO USER FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THE FEE SIGNAL HAS CHARGED USER (IF ANY) DURING THE MONTH IN WHICH THE ALLEGED DAMAGE, LOSS, OR CAUSE OF ACTION WAS INCURRED OR U.S. $10.00, WHICHEVER AMOUNT IS GREATER.
USER RECOGNIZES AND CONFIRMS THAT IN THE EVENT USER INCURS ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF SIGNAL'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO USER ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE USER TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY PROPERTY, PRODUCT OR SERVICE OWNED OR CONTROLLED BY THE SIGNAL PARTIES, AND USER WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY SUCH PROPERTY, PRODUCT OR SERVICE OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.
THE SUBSTANTIVE LAWS (AS DISTINGUISHED FROM THE CHOICE OF LAW RULES) OF THE STATE OF ILLINOIS AND THE UNITED STATES OF AMERICA APPLICABLE TO CONTRACTS MADE AND PERFORMED ENTIRELY IN ILLINOIS AND WHERE THE RELEVANT CONTACTS ARE WITH SUCH STATE SHALL GOVERN: THE VALIDITY AND INTERPRETATION OF THESE TERMS AND ALL CAUSES OF ACTION (WHETHER SOUNDING IN CONTRACT OR IN TORT) ARISING OUT OF OR RELATING TO THESE TERMS OR THE TERMINATION OF THESE TERMS AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.
Except for disputes relating to the infringement of your or Signal's intellectual property (such as trademarks, trade dress, copyright and patents) or where Signal is seeking a preliminary injunction (“Excluded Disputes”), you agree that all disputes between you and Signal (whether or not such dispute involves a third party) with regard to these Terms or your use of the Service, will be resolved by binding, individual arbitration under the American Arbitration Association's rules for arbitration of consumer-related disputes and you hereby expressly waive trial by jury. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court's rules. Neither you nor Signal will participate in a class action or class-wide arbitration for any claims covered by these Terms. This dispute resolution provision will be governed by the Federal Arbitration Act and, where consistent, Illinois law. The arbitration will be conducted in Chicago, Illinois, in the English language by three arbitrators appointed in accordance with the American Arbitration Association's Rules. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either Signal or User can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. At User's election, desktop or telephone arbitration, if available, can be used for claims of less than $10,000. In-person arbitration hearings will be conducted at the place of User's residence at the time the dispute is submitted to arbitration. Signal will pay the costs for arbitration (not including User's attorney's fees) for claims under $5,000 where User is successful. In all other cases, User will bear 50% of the cost of any arbitration and User alone will be responsible its attorney's fees. Judgment on the award rendered by the arbitrators may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrators will not have authority to award punitive or exemplary damages. You agree that any action at law or in equity relating to the arbitration provision of these Terms or the Excluded Disputes will be filed only in the state or federal courts located in Chicago, Illinois and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action.
In addition to Signal's right to terminate its relationship with User as detailed in Section 18 below, Signal may suspend User's rights to use or make available the Service or the Signal Materials at any time without liability and without prior notice.
Term. These Terms will continue in full force and effect until terminated pursuant to Section 18.b below (the "Term").
Termination. Signal may terminate its relationship with you in its sole discretion upon providing ten (10) days written notice to you or immediately if a change in law or interpretation of law requires so (in Signal's sole discretion). Signal may also terminate this Agreement at any time, without notice to you, based on your actual or alleged breach of these Terms. You may terminate this Agreement upon providing thirty (30) days written notice to Signal.
Effect of Termination. Upon expiration of the Term, your right to use the Service and the Signal Materials will immediately terminate. You will delete any and all Signal Materials in your possession (excluding the User Data) and will no longer have any right to use or possess the Signal Materials. To evidence such destruction and removal, you will provide Signal, upon Signal's request, with an affidavit signed by an authorized officer of you confirming such facts. In the event of termination, you will be obligated to pay Signal any outstanding Fees due under these Terms, any Additional Terms or as of the effective date of termination.
Independent Contractor. You agree that Signal is acting as an independent contractor in the provision and performance of the Services, and nothing herein contained shall be deemed to create an agency relationship between you and Signal.
Advertising Agency. If you are an advertising agency acting as an agent on behalf of a client, you agree that to notify your client of all requirements and obligations under these Terms; and that you and your client will be jointly and severally liable for non-compliance with all requirements and obligations under these Terms, including without limitation, all payment obligations.
Attribution. You agree that references to one or more of Signal's trade identities, including, without limitation, the language "Powered by Signal," may appear in any products or services that are part of the Services in a size and location determined by Signal in its sole discretion.
Marketing. You agree that Signal will have a limited, non-transferable, non-exclusive, royalty-free, fully paid, worldwide license to use your name and logo and any quotes or statements made by you regarding the Services in connection with Signal's corporate and external communications, including, without limitation, in press releases; product brochures and other marketing materials; and financial reports. You further agree that the aforementioned uses may include a reference to you as a user of the Services.
Integration. These Terms constitute the sole and entire agreement between the parties with respect to the subject matter of these Terms and supersede any and all other prior or contemporaneous written or oral agreements pertaining thereto. No oral statement of any Signal representative or employee will, in any manner or degree, modify or otherwise affect these Terms. No purchase orders, invoices or other business forms will modify, supersede or otherwise alter these Terms unless expressly stated in the applicable purchase order, invoice or other business document.
Assignment. You may not transfer or assign your rights or obligations under these Terms to any third party (including your parent, subsidiary or affiliate), including, without limitation, any transfer or assignment by way of merger, consolidation, sale of all or substantially all of assets, without the prior written consent of Signal. Signal may freely assign its rights and obligations under these Terms to any third party (including its subsidiary or affiliate).
Successors & Assigns. Subject to Section 19.f above, these Terms are binding upon and will inure to the benefit of the parties hereto and their respective assignors, predecessors in interest, successors, assigns, heirs and personal representatives.
Severability. If any provision of these Terms is held to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms otherwise remain in full force and effect and enforceable.
Force Majeure. Signal will not be liable for delay or default in the performance of its obligations under these Terms or Additional Terms if such delay or default is caused by conditions beyond its reasonable control, including but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, or third party labor disputes.
Non-Waiver. No waiver by either party of any performance of the other party required under these Terms or any default of either under the provisions of these Terms will constitute or imply, whether by passage of time or otherwise, any further waiver of any other performance or default.
Legal Process. If Signal or any of its employees, agents or subcontractors is served with or becomes subject to any subpoena, warrant, discovery request, court or regulatory order, or any other similar process in a legal proceeding to which you are a party and that subpoena seeks disclosure of materials or information related to the relationship between you and Signal under these Terms or otherwise related to your use of the Service, then User will reimburse Signal for all direct and documented costs and expenses charged by a third party for Signal to comply with such a subpoena, including without limitation, reasonable attorney's fees and costs related thereto.
Interpretation. Any heading, caption or paragraph title contained in these Terms are inserted only as a matter of convenience and in no way defines or explains any paragraph or provision hereof. You agree that these Terms will not be construed against Signal by virtue of having drafted these Terms.
CHANGES TO THESE TERMS
We reserve the right, in our sole discretion and at any time, to change or add to the terms of these Terms without prior notice ("Updated Terms"). You agree that we may notify you of the Updated Terms by posting them on this Service so that they are accessible via a link from the home page, and that your use of the Service after we have posted the Updated Terms (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms before using the Service. The Updated Terms will be effective as of the time of posting, or such later date as may be specified in the Updated Terms, and will apply to your use of the Service from that point forward.
If you have any comments or questions regarding these Terms, please contact us at firstname.lastname@example.org.