Last Updated: December 4, 2018
The following terms and conditions represent the complete agreement and understanding between you (an individual or entity and Real Capture LLC (“Company”, “we”, “us” or “our”) regarding your use of our Offerings.
“Account Information” means contact, payment, access logs, access privileges, records of products you have signed up to use, user names, email addresses, system access credentials (including passwords) and other administrative and usage information we need to manage your use of any and all of our Offerings. This may also mean your IP address, location, and other information we can legally gather using web browser cookies and other mechanisms as we deem necessary.
“App” refers to any software product made available to you by us on any supported device, including, without limitation, Apps we make available via the Apple or Google Play stores, or software we make available for download and installation on laptop computers, servers, or other computing devices.
“Company Technology” means all of our proprietary technology (including our website(s), software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by us in providing or delivering any of our Offerings.
“Data” refers to any and all data, information or material that is stored on any computers that comprise any or all of our Offerings. For avoidance of doubt, this means all data, without regard to its form (e.g. without limitation, text, audio, executable files, video, etc.) and regardless of how the information or material was delivered to our servers, whether input by us, you, a third party, or computer generated. It also includes meta-data and other data that may have been automatically generated or otherwise created by using an Offering or by transmitting information or materials to or via any of our Offerings, regardless of the mechanism(s) used. Therefore, Data expressly includes, without limitation, Your Data.
“Designated Payment Method” means the method of payment that you have chosen to convey funds to us, such as credit card, check, cash, wire transfer, or otherwise, it being understood that your choice is limited to payment methods accepted by us. No alternatives will be accepted.
“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
“Offering(s)” refers to all products and services offered by us, including, without limitation, our websites, technology products, and Services. This is without regard to whether they are individually or collectively available online, in the form of mobile applications, desktop software, or otherwise, whether used together or separately, where your use of the same and all updates thereto is provided only by way of agreeing to terms and conditions set forth in this Agreement. This includes access to our public website(s), Services, and any App or other software we make available for download and installation by you on your own computing devices.
“Order” means the online or offline documentation evidencing the procurement of an Offering from us such as an App and any subsequent documentation submitted that specifies (without limitation), the number of licenses, services contracted for, applicable fees, the billing period, and other charges as agreed to between you and us. Orders can also evidence orders for services and products including those that we make available to you on a pass through, royalty, or commission basis from a third party. Orders also expressly include the act of downloading of one of our Offerings from an online marketplace, such as the Google™ Play or Apple™ App Store. Each Order shall be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order, the terms of this Agreement shall prevail).
“Service(s)” refers to Offerings that are available via online hosted applications, mobile applications, desktop software, or other software programs, documentation, related materials, whether used together or separately, and the computer networks we manage on which they operate, where use of the same and all updates thereto is provided only by way of agreeing to terms and conditions set forth in this Agreement. Any given Service may also include the information provided by the community of users that use that Service or any of our Offerings, including, without limitation, information submitted to message boards, community support forums, and other mechanisms meant to provide a benefit to the given Service’s user-base as a whole or our entire user base as a whole.
“Submission” means any questions, comments, suggestions, ideas, feedback or other information about any or all Offerings that you send to us by any medium, whether electronically or otherwise.
“Your Data” refers to content, including without limitation, text, images, audio, and video uploaded, imported or otherwise inputted by you into the forms and other mechanisms made available to you in your use of an Offering; Your Data expressly includes Submissions.
Acceptance of Terms
BY ACCESSING OUR WEBSITE, OR BY ACKNOWLEDGING ACCEPTANCE OF THIS AGREEMENT DURING THE SIGN-UP PROCESS FOR ONE OUR OFFERINGS, INCLUDING WITHOUT LIMITATION, BY ACCESSING ANY OF OUR MOBILE APPLICATIONS, ONLINE PRODUCTS, OR OTHER SOFTWARE, YOU AGREE THAT THIS AGREEMENT GOVERNS YOUR USE OF SAID OFFERINGS AND FURTHER AGREE THAT CONTINUED USE OF ANY OFFERING AFTER THIS AGREEMENT HAS BEEN UPDATED INDICATES YOUR ACCEPTANCE OF SAID CHANGES. IF YOU DO NOT AGREE WITH UPDATED VERSIONS OF THIS AGREEMENT, DO NOT 1) USE ANY OF OUR OFFERINGS 2) CANCEL USE OF ANY AND ALL OFFERINGS, INCLUDING OUR WEBSITE(S) AND 3) DELETE OR DESTROY ANY SOFTWARE OR MATERIALS PROVIDED AS PART OF ANY OF OUR OFFERINGS IN ACCORDANCE WITH THE TERMINATION PROVISIONS HEREOF. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE ANY OF OUR OFFERINGS, INCLUDING, WITHOUT LIMITATION, ANY SERVICE, WEBSITE, OR ANY OF OUR SOFTWARE PRODUCTS, MATERIALS OR DOCUMENTATION GOVERNED BY THIS AGREEMENT.
Hosting Location Disclosure
Our Offerings are currently hosted in the United States, however, we reserve the right to host them anywhere in the world. In the event that we host any of our Offerings (or part thereof) outside the United States, this Agreement will remain in full effect, it being understood that it may be amended in our sole discretion to reflect the changes in our circumstances and/or locale. We make no representation that any of our Offerings are appropriate or available in other locations other than the United States of America. None of our Offerings are intended for use by any person or entity in any jurisdiction or country where such use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access any of our Offerings from other locations do so on their own discretion and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.
Persons under the age of 18 are not permitted to register to use any of our Offerings but may use public components of our website and any components of our Services that specifically allow use by persons not of legal age, which would be subject to a separate set of terms appropriate for minors.
By using any of our Offerings, you represent and warrant that your Account Information is:
- truthful, complete and accurate; you further agree and understand that providing false or misleading information constitutes grounds for termination of this Agreement
- promptly updated and its accuracy is routinely maintained as appropriate; anonymous users agree that we will be updating your information based on cookies placed on your computer(s); and
- kept confidential; if you have registered for a component of a Service or any other Offering requiring security credentials, you will be responsible for all use of the password used to access your Account Information. Under no circumstances will we be liable for any misuse of your Account Information or costs associated with any misuse due to your failure to protect, loss, or theft of your credentials.
License Grant & Restrictions
This grant of license expressly subject to your agreement that any software or similar component of any Offering may automatically download and install upgrades, updates or other new features and regularly send log information to our servers. Some our Offerings may allow you to adjust these automatic downloads through your mobile device settings but you expressly agree and understand that control of these settings is at our sole discretion. While updates and upgrades are designed to improve and enhance our Offerings, you further agree and understand that any upgrade or enhancement may result in loss of previously available functionality, which shall not constitute a breach of this Agreement by us.
The rights and licenses granted in this Agreement expressly prohibit you from selling, renting, leasing, assigning, distributing, copying, modifying, or hosting any part of our Services or Offerings. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party any of our Offerings in any way; (ii) modify or make derivative works based upon any of our Offerings; (iii) reverse engineer any of our Offerings, (iv) access any of our Offerings in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the any of our Offerings, (c) copy any ideas, features, functions or graphics stored or identifying any of our Offerings, or (iv) use any of our Offerings in a service bureau or similar capacity on behalf of yourself or any other person or entity.
You shall not use any of our Offerings (directly or indirectly) to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of any of our Offerings or the information contained therein; (v) attempt to gain unauthorized access to the any of our Services or its related systems, networks or any of our other Offerings; or (vi) use any of our Offerings in any illegal manner or for any illegal purpose or in any manner that may, as determined in our discretion, cause harm to our business or reputation or that of others.
All rights not expressly granted to you are reserved by us and our applicable licensors.
You are responsible for all activity occurring while using any of our Offerings and you shall abide by all applicable laws, in connection with your use of said Offerings, including those related to marketing, advertising, data privacy, communications and the transmission of technical or personal data, such as the Federal Trade Commission Act, CAN-SPAM Act of 2003, Telemarketing and Consumer Fraud and Abuse Prevention Act (including the Telemarketing Sales Rule and “Do Not Call” regulations), Telephone Consumer Protection Act(TCPA), and all other applicable federal and state laws and regulations. You shall notify us immediately of any unauthorized use of any password or account or any other known or suspected breach of security.
You expressly agree and understand that contacting consumers through the use of Company Technology of any kind, including without limitation, Offerings that provide broadcast messaging, or calls/text messaging to cellular phones, are at your sole risk. You assume any and all liability as a result of your violation of TCPA regulations, and other state and federal privacy laws. You expressly agree to indemnify Real Capture LLC against such liability resulting from your actions or inactions in violation of law as set forth in this Agreement.
You expressly agree and understand that we are not responsible for technical, hardware, software, electronic, network, telephone or other communications malfunctions, errors or failures of any kind, errors in transmission, traffic congestion, lost or unavailable network connections, telephone connections, wireless phone connections, website, Internet, or ISP availability, unauthorized human intervention, traffic congestion, incomplete or inaccurate capture of entry information (regardless of cause) or failed, incomplete, garbled, jumbled or delayed transmissions which may limit or restrict your ability to receive or send a message, including any injury or damage to your or any other person’s wireless device relating to or resulting from participating in or using any of our Offerings.
Proper Use & Sharing
You agree to use communication features available via our Offerings only to post, send and receive messages and material that are proper and permitted by applicable law. We may delete or disable any of Your Data if we determine (in our sole discretion) that Your Data violates the terms of this Agreement.
To the extent that any of our Offerings provides mechanisms to allow the sharing of Your Data and other content transmittable via the applicable Offering, you hereby represent and warrant that:
- the creation, distribution, transmission, public display and performance, accessing, downloading and copying of Your Data does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third party;
- You are the creator and owner of or have the necessary licenses, rights, consents, releases and permissions to use and to authorize Company and other users of the licensed Offering to use Your Data as necessary to exercise the licenses granted by you under this Agreement;
- You have the written consent, release, and/or permission of each and every identifiable individual person in Your Data to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the Your Data in the manner contemplated by this Agreement;
- Your Data is not obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable (as determined by us), libelous or slanderous, does not ridicule, mock, disparage, intimidate or abuse anyone, does not advocate the violent overthrow of the government of the United States, does not incite, encourage or threaten physical harm against another, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third party;
- Your Data does not contain material that solicits personal information from anyone under 18 or exploit people under the age of 18 in a sexual or violent manner, and does not violate any federal or state law concerning child pornography or otherwise intended to protect the health or wellbeing of minors;
- Your Data does not include any offensive comments that are connected to race, national origin, gender, sexual preference or physical handicap;
- Your Data does not violate any state or federal law designed to regulate electronic advertising;
- Your Data does not amount to trolling, or the making of controversial statements for the sole purpose of generating responses by others; and
- Your Data does not otherwise violate, or link to material that violates, any provision of this Agreement or any applicable law or regulation.
You may not access or use any of our Offerings for any purpose in contravention of a Prohibited Activity. A Prohibited Activity refers to any activity that is unlawful, criminal, or in violation of third party rights, including, without limitation the following activities:
- criminal or tortious activity such as child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, copyright infringement, patent infringement, or theft of trade secrets, etc.;
- engaging in unlawful multi-level marketing (such as a pyramid scheme);
- offering any contest, giveaway or sweepstakes without our prior written consent or in violation of any applicable law;
- using any information obtained from our Offerings in order to contact, advertise to, solicit, or sell to any user without their prior explicit consent;
- using our Offerings to trick, defraud or mislead us and/or others, especially in any attempt to learn sensitive Account Information such as passwords;
- interfering with, disrupting, or creating an undue burden on any Offering or the networks or services connected to said Offering;
- attempting to impersonate another user or person or using the username of another user;
- using any information obtained from our Offerings in order to harass, abuse, or harm another person or entity;
- using any Offering as part of any effort to compete with us or to provide services as a service bureau;
- deciphering, decompiling, disassembling or reverse engineering any of the software comprising or in any way making up a part of an Offering;
- attempting to bypass any measures designed to prevent or restrict access to any or all of our Offerings or any portion(s) thereof;
- harassing, annoying, intimidating or threatening any of our employees or agents engaged in providing any services to you;
- engaging in cheating or any other activity deemed by us to be in conflict with the spirit or intent of this Agreement and related Privacy and Acceptable Use policies;
- disparaging, tarnishing, or otherwise harming, in our sole opinion, our Company and/or any of our Offerings, employees, partners or stakeholders;
- using or disseminating any information accessed via any of our Offerings that was not intended for you in a manner that brings harm to us, our users, or any third party, and
- using any of our Offerings in a manner inconsistent with any and all applicable laws and regulations.
The Children’s Online Privacy Protection Act (“COPPA”) protects the online privacy of children under 13 years of age. You may not use our Offerings to collect or maintain personal information from anyone under the age of 13, unless or except as permitted by law.
Account Information and Data
As a user of an Offering, you agree and understand that we may collect and keep Account Information for you and other users. You expressly agree not to attempt or try to attempt to access Account Information of any other user using any methods other than those provided to you by us, including, without limitation, hacking, screen scraping, phishing and other unlawful or unauthorised means.
With regard to Data available or stored in an Offering, Title and all ownership and intellectual property rights in and to Data is the property of the applicable content owner and may be protected by law. This means the applicable content owner may be us, you, or a third party. This Agreement gives neither you nor any other user any rights to Data not owned by you or them, and you agree not to use any of our Offerings to store, distribute or otherwise use any third party content in a manner not contemplated under this Agreement without the express permission of the content owner. You, not us, shall have the sole responsibility for the accuracy, reliability, and intellectual property ownership or right to use all Data, and we shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data. We will have no liability to you or any third party if the Data is lost or damaged by us, by our hosting or other service providers managing the Data, or by any other third party. Upon termination of this Agreement, your right to access or use Data via the Offering immediately ceases, and we shall have no obligation to maintain or forward any Data to you.
While we may perform periodic back-ups of Data, we have no legal obligation whatsoever to back up or protect any Data, and cannot guarantee Data may not be affected by viruses or any nefarious actions by a third party. Accordingly, you (and not us) are solely responsible for a) backing up all Data you are legally allowed to make copies of using means that may not be available via an Offering and b) scanning any Data uploaded to our systems for viruses and other forms of malware. You expressly agree that we will have no liability to you or anyone else for any loss of Data even if such loss is due to our errors or omissions, nor do we have any liability for any damage to your computers, mobile devices, or other equipment or for any business disruption due to viruses or third party actions.
Rights to Data; Grant of License.
Intellectual Property Ownership
We alone (and our licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to Company Technology, our Offerings, and Submissions. This Agreement does not convey to you any rights of ownership in or related to any Offering, Company Technology, or the Intellectual Property Rights owned by us. The Company name, the Company logo(s), brands, and/or product names associated with our Offerings are our trademarks and we have not granted you any right or license to use them without our express written permission.
From time to time, plug-in or add-on software applications (“Applications”) that integrate or interoperate with some of our Offerings may become available as part of one of our Services or as offers we make available to our users and prospects. If you choose to install, access or enable an Application, you agree that a third party provider (“TPP”) may acquire access to your Account Information as required for the interoperation or integration of their application or service with ours and such disclosure by us to them will not constitute a breach of this Agreement. Accordingly, such applications or services are governed by terms and conditions provide by the TPP and are not considered Offerings under this Agreement. You assume full responsibility for any damage, loss, cost, or harm arising from the use of or inability to use such services or applications. To the extent permitted by law, we disclaim all liabilities with respect to your use of or inability to use such services or applications and the performance or non-performance of such services or applications (including direct, indirect, incidental, punitive or consequential damages). We have no obligation to monitor such services or applications and do not control or endorse the content, messages or information found in such services or applications and specifically disclaim any liability with regard to such content, messages or other information. We do not monitor or control service limitations, suspensions or terminations of third party applications or services and specifically disclaim any liability with regard to service limitations, suspensions or terminations of services or applications provided by a TPP. AS BETWEEN YOU AND US, ALL TPP APPLICATIONS AND SERVICES ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO THEM WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
You acknowledges and agree that any Submissions provided by you to us become our property and you covey to us the unrestricted right to use, disseminate, and leverage any Submission for any purpose, commercial or otherwise, without acknowledgment or compensation to you. This includes creating new products or services, enhancing our Offerings, or leveraging Submissions to the benefit of a third party.
Beta Testing & Feature Changes
From time to time, we will make versions of our software available on a pre-release basis for testing (“Beta Version(s)”). Participants using Beta Versions will be selected at our discretion, and will not necessarily be alerted to the fact that they are using a pre-release or updated version of the given Offering. Beta Versions may include features not generally available to other users and use of those features may require you to submit Data that may later be lost if we elect not to release the feature in the in the version released for general use (“Production Version”). To the extent that any feature, whether in a Beta Version or Production Version is eliminated, we take no responsibility for any loss of Data or functionality; you expressly agree and understand that such changes and decisions are at our discretion. You accept full responsibility for any adverse impact that differences between versions may have on your use of any and all Offerings.
Notwithstanding the foregoing, to the extent that you are using a Beta Version of an Offering, all use of all versions (Production and Beta) shall be governed by the terms and conditions set forth in this Agreement.
We and our licensors may from time to time contact you with promotional offers that make our Offerings available under limited time pricing or similar mutually beneficial arrangements. Promotional campaigns will be subject to terms and conditions that apply to each specific campaign with disclaimers, terms, conditions, restrictions and other similar guidelines that apply to that campaign only. All promotional campaigns will be subject to the terms and conditions set forth in this Agreement, unless expressly stated otherwise. To the extent that there is a conflict between the terms and conditions in any promotional campaign and this Agreement, the terms and conditions in this Agreement shall govern. A list of promotional campaigns in effect and terminated are listed in Addendum 2 to this Agreement – Promotional Campaigns.
Services and Software
The following sections apply to you only if you have a procured an Offering which requires a license, such as (without limitation) subscription to our Tendant™ App, whether on a paid or free basis. Otherwise, these subsections (Charges and Payments of Fees, Billing and Renewal, Non Payment and Suspension, and Refunds) do not apply to you.
Charges and Payment of Fees
To the extent that you are a subscriber or paid licensee for any Offering, you shall pay all fees or charges in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You may be required to provide us with valid credit card, debit card or information for direct withdrawal from a bank account or other approved purchase order information (the “Designated Payment Method”) as a condition to signing up for the Offering or to license any aspect thereof or components or products provided by a TPP. We reserve the right to modify our fees and charges and to introduce new charges at any time, provided that they will not be effective until at least 30 days prior notice to you, which notice may be provided by e-mail. You will not be charged under any new fee structure if you cancel your subscription (where applicable) prior to the date the new fees go into effect. To the extent that you are given pricing terms and conditions that are not afforded our general user community, you agree to treat such pricing terms confidentially, and will not disclose them to any third party.
Billing and Renewal
We will automatically renew and bill your Designated Payment Method (or issue an invoice to you as appropriate) when amounts are due as provided in this Agreement. You hereby consent to us charging you via your Designated Payment Method as amounts are due and agree that we shall not be required to obtain any further consent from you in order to charge you via the Designated Payment Method. We may charge a reasonable fee in any month where charges are declined and must be re-processed. Fees for other services will be charged on an as-quoted basis. Such 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 excluding only taxes permitted under applicable law.
You agree to provide us with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, name and telephone number of an authorized billing contact and administrator where applicable. You agree to update this information within 10 days of any change. If the contact information you have provided is false or fraudulent, we reserve the right to terminate your access to any Offering in addition to any other legal remedies. Unless we, in our discretion, determine otherwise, you will be billed and expected to pay in US Dollars.
If you believe an invoice is incorrect, you must contact us in writing within 15 business days of the date of the invoice containing the amount in question in order to be eligible to receive an adjustment or credit. Otherwise, the invoice amounts due will be deemed accepted and payable.
Non-Payment and Suspension
You agree that in addition to any other rights granted to us herein, we reserve the right to suspend or terminate this Agreement and your access to any Offering if your account becomes delinquent (falls into arrears). Delinquent accounts are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection, including attorneys’ fees and court costs. If you or we initiate termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the applicable provisions of this Agreement. You agree that we may charge such unpaid fees to you via your Designated Payment Method or otherwise bill you directly for such unpaid fees.
We reserve the right to impose a fee in the event you are suspended and thereafter requests access to any Offering. You agree and acknowledge that we have no obligation to retain Data and that such Data may be irretrievably deleted if an account is delinquent.
All payments for any Offering are final and non-refundable. If you terminate this Agreement, then this Agreement will continue until the end of the period for which you have paid, whether you use the procured Offering or not.
Either party to this Agreement may terminate this Agreement at any time without cause. Additionally, we may suspend or terminate your use of an Offering for cause if we determine in our sole discretion that you have breached this Agreement, or that such suspension is necessary for us to protect our interests by initiating suspension or termination and use of the Offering. Upon termination or suspension, you shall 1) not be entitled to a refund of any fees paid by you for any of the Offerings 2) immediately suspend all use or attempted use of any Offering, except those that are publicly available, such as the public sections of our websites, 3) pay all outstanding fees due to us and 4) delete or destroy any and all materials, software, documentation or other information provided to you by us under license. You may retain, for your records, any Data you may have had access to while using any Offering, provided that such retention does not violate our Privacy or Acceptable Use Policies, or does not violate your confidentiality obligations or other applicable provisions of this Agreement. You further agree and understand that upon termination we are under no obligation to keep Data, including Your Data and may irretrievably remove all or some of it from our systems. Such removal or deletion shall not constitute our violation of this Agreement.
YOU UNDERSTAND THAT CERTAIN STATES ALLOW YOU TO CANCEL THIS AGREEMENT, WITHOUT ANY PENALTY OR OBLIGATION, AT ANY TIME PRIOR TO MIDNIGHT OF COMPANY’S THIRD BUSINESS DAY FOLLOWING THE DATE OF THIS AGREEMENT, EXCLUDING SUNDAYS AND HOLIDAYS. IF YOU ARE ENTITLED TO REFUNDS UNDER THESE STATUTES, REFUNDS WILL BE PROVIDED BY THE COMPANY WHERE APPLICABLE. THIS SECTION APPLIES ONLY TO INDIVIDUALS RESIDING IN STATES WITH SUCH LAWS.
Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. We represent and warrant that we will provide our services in a manner consistent with general industry standards reasonably applicable to the provision thereof and that our Offerings will perform substantially in accordance with normal use and circumstances. You represent and warrant that you have not falsely identified yourself or the entity that you represent, nor have you provided any false information to gain access to any of our Offerings and that the billing information you have provided is true and correct.
You shall defend, indemnify and hold us, our licensors and each of these party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that your use of Data (or specifically Your Data) infringes the rights of, or has caused harm to, a third party; (ii) a claim, which arises from a violation by you of your representations and warranties hereunder; (iii) a claim, arises from a breach by you of this Agreement, without limitation, your violation of TCPA, CAN-SPAM, or age of consent laws regarding collecting information from a minor; or (iv) a claim that relates to damages arising from your use of any of our Offerings. The forgoing indemnification shall be contingent on us (a) promptly giving written notice of the claim to you and (b) giving you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless the settlement unconditionally releases us of all liability and such settlement does not adversely affect or disrupt our business or our ability to service our customers).
Disclaimer of Warranties
COMPANY AND OUR LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. COMPANY AND OUR LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR OPERATE WITHOUT ERROR IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA USED TO ACCESS OR OPERATE THE SERVICE, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY COMPANY AND ITS LICENSORS.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH EVENTS OR CIRCUMSTANCES.
Limitation of Liability
IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY TO YOU FROM ANY CLAIM ARISING UNDER THIS AGREEMENT OR USE OF THE SERVICE EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL COMPANY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF COMPANY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 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.”
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
Local Laws and Export Control
Our Offerings include services, software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. You acknowledge and agree that none of our Offerings or underlying information, software, or technology may be used, transferred or otherwise exported or re-exported to countries to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using any of our Offerings, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. You further acknowledge that our Offerings may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.
We and our licensors make no representation that any of our Offerings are appropriate or available for use in other locations. If you use any of our Offerings from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of Data contrary to United States law is prohibited.
We may give notice by means of a) a general notice posted to applications provided as part of an Offering you are using, b) electronic mail to your e-mail address on record as stored with your Account Information, c) by SMS messaging or d) to our website(s) or e) by written communication sent by first class mail or pre-paid post to your address in your Account Information record. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post), 12 hours after sending (if sent by email or other electronic means including via one of our Offerings) or immediately if posted to our website (it being understood that the website notices do not apply to adequate notice to you if you are paying a fee for any of our Offerings). You may give notice to us (such notice shall be deemed given when received by us) using our physical mailing address appearing as “Contact” information on our website(s) to the attention of: Chief Compliance Officer, provided the notice is sent by registered or certified mail, return receipt requested, or by overnight mail, or hand delivery. No notice is necessary if you are not a fee-based user, simply stop visiting our website(s) or stop using, destroy any free software we have given you (unless governed by separate terms in which case terminate use of said software in accordance with its usage terms), or opt out of the next transmittal received from us.
Modifications to Agreement
We may modify this Agreement without notice, at any time and from time to time. Any and all changes to this Agreement will be reflected on our website(s) and revisions will be indicated by date. You agree to be bound to any changes to this Agreement when you use any of our Offerings after any such modification becomes effective. We may also, at our discretion, choose to alert all other users with whom we maintain email contact of such modifications by means of an email to their email address on file. It is therefore important that you regularly review this Agreement and keep your contact information current in your account settings to ensure you are informed of changes. Modifications to this Agreement shall be effective 10 days after being posted or as indicated by us at the time of posting, and may be immediately effective. Additionally, modifications made to this Agreement applicable to dispute resolution shall not apply to disputes arising prior to the effective date of the modification.
Modifications to Services
We reserve the right at any time to modify or discontinue, (temporarily or permanently), any or all of our Offerings with or without notice. You agree that we shall not be liable to you or to any third party for any modification, suspension or discontinuance of any or all Offerings, except for refund of any pre-paid fees where applicable.
Assignment; Change in Control
This Agreement may not be assigned by you to anyone else (a person or entity) without our prior written approval. This Agreement may be assigned without your consent by us to (i) a parent or subsidiary, (ii) an acquirer of assets or equity of Company, or (iii) a successor by merger or other financial arrangement. Any purported assignment by you in violation of this section shall be void. Any actual or proposed change in control by you that results or would result in a competitor of ours directly or indirectly employing you shall entitle us to terminate this Agreement “for cause” immediately upon written notice.
In order to resolve a complaint or to receive further information regarding use of our Offerings please contact Company as set forth below or, if any complaint with us is not satisfactorily resolved, and you are a California resident, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 “R” Street, Sacramento, California 95814 or by telephone at 1-916-445-1254.
Real Capture LLC
2645 Executive Park Drive
Addendum 1 – SMS Text Messaging Addendum
Last Updated: September 26, 2017
ACCEPTANCE BY YOU
We will not charge you for SMS text messages you receive from any of our Offerings. However, message and data rates may apply from your mobile carrier in accordance with your wireless customer agreement with your carrier. You are advised to consult your wireless service provider regarding its pricing plans and your obligations to them.
Our Offerings are compatible with services provided by AT&T, Verizon, Sprint, TMobile and other wireless providers. However, we make no guarantee that any of our Offerings will continue to be compatible or will continue to be accessible via these carriers. Any failure resulting from your inability to use one of our Offerings with your carrier will not constitute a violation of this Agreement.
PARTICIPANT OPT-OUT OR HELP
You are responsible for managing the types of SMS text messages you receive. If you elect to stop receiving text messages, by texting STOP to 18885056591, after doing so, you will receive confirmation of your opt-out status and, thereafter, you will no longer receive text messages from us or any of our users via any of our Offerings. It is important to understand that this OPT-OUT provision affects your communications with all our users and not only a single individual user.
We may use an automatic dialing system to deliver text messages to you. By using our Offerings, you give your consent to us to use an automatic dialing system to deliver text messages to the telephone or cell phone number that you have provided to transmit these text messages.
RELEASES; NO WARRANTIES, RESERVATIONS
WIRELESS EMERGENCY ALERTS DISCLAIMER
Alerts sent via SMS may not be delivered to you if your phone is not in range of a transmission site, or if sufficient network capacity is not available at a particular time. Even within a coverage area, factors beyond the control of your wireless carrier may interfere with message delivery, including the customer’s equipment, terrain, proximity to buildings, foliage, and weather. You acknowledge that urgent alerts may not be timely received and that we do not guarantee that alerts will be delivered.
Addendum 2 – Promotional Campaigns
The following is a list of Promotional Campaigns along with their terms and conditions, effective date, and end date.
|Effective Date||End Date||Terms & Conditions|
|Coupon Code Promotion Program||Dec 3, 2018||TBD||Supplemental 2018-12-02|
Supplemental 2018-12-02: Tendant Terms & Conditions for Coupon Code Promotion Program
You agree and understand that the Coupon Code Promotion Program (“Promotional Program”) is a referral program where Tendant offers you and our other subscribers the opportunity to earn free Usage Credits for referring our service to others, subject to the terms hereof. Both you and Tendant hereby agree as follows:
- Definitions. The following definitions apply to these terms:
- Referral Party refers to the person or entity redeeming a Coupon Code issued to them by you.
- Usage Credits refer to usage of certain features of the Service which are priced on a unit basis. Specifically, the Tendant Voice and Tendant Messaging modules are offered on a “per message” and a “per minute” basis respectively.
- Usage. To the extent that you have been issued a Coupon Code that entitles you and your Referral Party(s) to Usage Credits, you may distribute your Coupon Code to anyone you desire, provided that they are in jurisdiction that does not prevent or legally prohibit distribution of such promotional mechanisms. At a minimum, Coupon Codes cannot be used by Referral Parties outside the United States of America.
- All Coupon Codes expire. Once a Coupon Code has expired, it cannot be reused. If you wish to get a new Coupon Code, email firstname.lastname@example.org to request a new Coupon Code. However, a new Coupon Code will be issued solely at our discretion.
- Not Valid in Combination with any other Offers. You cannot combine the Usage Credits issued with a Coupon Code with other offers. For example, if we offered a hypothetical promotion for a “Free Month’s Subscription” to people you refer to us, it should not be assumed that those who take advantage of that offer will also be eligible for Coupon Code credits.
- Redemption & Credit Eligibility. Your account will not be eligible to receive Usage Credits until the Coupon Code is redeemed by a Referral Party (the person you’ve given your code to) subject to the following:
- You must be a Tendant Subscriber in good standing. No Usage Credits will be applied to your account if there are any open, unresolved, or outstanding claims or disputes between you and Tendant, or between you and any other Tendant third party partner.
- The Referral Party must have downloaded, installed Tendant, and registered for the Service and supplied your Coupon Code upon request or registration.
- The Referral Party must have configured their Profile Page with a true and accurate photograph of their liking and configured their Profile Page URL.
- The device being used by you and the Referral Party must be assigned a valid US-based phone number. The Service is not available to users outside the United States.
- The device that the Referral Party is using, and the telecommunications service the Referral Party is using, must be supported by Tendant.
- All information provided by the Referral Party and you must be true and accurate. To the extent that we determine that there is any attempt to deceive, defraud, or otherwise engage in conduct that violates the spirit of the program, we may, at our sole discretion a) deny credits to you and the referral parties b) suspend or cancel Coupon Codes assigned to you c) debit your account and that of the Referral Party for any Usage Credits we deem were illicitly acquired or d) terminate your subscription to Tendant or any other applicable Real Capture LLC product or service.
- Expiry. Usage Credits can be cancelled by us at any time for any reason. Any unused Usage Credits issued can no longer be used after cancellation. This provision notwithstanding, Tendant may, in its sole discretion, elect to extend the eligibility of Usage Credits for any period provided that both parties understand that any extension of expiry dates by Tendant does not forfeit Tendant’s right to terminate the Usage Credits validity at any time after the expiry date.
- Roll Over. To the extent that Usage Credits have been issued that “Roll Over” you may redeem those credits as long as your account is in good standing, provided that a) your account is a Free Trial account or b) your account is a paid account. Roll Overs will not be applicable to free (unpaid) accounts and will expire immediately upon expiration of a Free Trial unless you upgrade to a paid account. Tendant, in its sole discretion, may allow redemption of Usage Credits in effect up to the date of termination if the account is reactivated or if the account is upgraded after a period of time to a paid account.