TERMS OF SERVICE
Thank you for using Message Metric’s (“Message Metric,” “we,” “our,” “us”) Call Tracking HQ, Review Wave or LandLine platform (the “Platforms”). Message Metric values and respects you, and these Terms of Service (the “Terms of Service”) are intended to form the foundation of the governing items with respect to your use of the Platforms. We may update these Terms of Service at any time. By accessing and using Message Metric, completing the registration process, or signing up for an account, you are agreeing to these Terms of Service.
- “Authorized User” means any of your employees, consultants, contractors or agents authorized by your administrator to access and use the Message Metric Service on behalf of your business, in each case subject to such person’s agreement to be bound by the Terms of Service.
- “Front End Code” means our user interface display and usability platform. This includes, but is not limited to, the layout, color scheme, HTML pages and source code, etc.
- “Message Metric Materials” means any documentation, user guides or other similar materials provided by Message Metric to you in connection with your use of the Message Metric Service.
- “Message Metric Service” means any of the Message Metric set of SaaS solutions that are developed, operated, and maintained by Message Metric (and its third-party service providers) and that are subscribed to through an Message Metric branded or controlled website (or Message Metric partner website) that includes a link to these Terms of Service. The definition of Message Metric Service does not include any separate professional Services (as defined below) that may be purchased by you from Message Metric.
- “Order Form” means any online or written subscription order form for the Message Metric Service or for Services submitted by you either during an online subscription process or separately signed by you and submitted to Message Metric, and any future purchase order or order form that makes reference to this Agreement.
- “PHI” means: (i) “protected health information” as defined in 45 CFR § 160.103; and (ii) any other patient or health information protected by the Health Insurance Portability and Accountability Act of 1996, as it may be amended from time to time (“HIPAA”), including the regulatory revisions implemented pursuant to the Health Information Technology for Economic and Clinical Health Act (the “HITECH ACT”).
- “Services” means any implementation, training or other professional services provided by Message Metric to you pursuant to the terms of an Order Form.
- “Subscription Term” means the use term for the Message Metric Service set forth on your Order Form and any additional renewals of such term.
- “Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227” means the federal statute governing the use of telephone equipment.
- “Third Party Content” means the content, including software code that a Message Metric partner or other third party may bundle with the Message Metric Service, for a specific market or niche offering.
- “Your Data” means registration information, information concerning your Authorized User(s) and customers and contacts, business, marketing and financial information, and any similar data that you upload to the Message Metric Service.
2. TERM & TERMINATION
- Standard Term. Unless a different term is specified in a signed Order Form between you and Message Metric, the initial term of your subscription to a Message Metric Service will begin on the submission or execution of your Order Form and shall continue on a month to month basis until the subscription is terminated as provided for in Section 2.2. The term of this Agreement will automatically terminate when all active Subscription Terms have been terminated.
- Termination without Cause. Either party may terminate the Subscription Term to a Message Metric Service by providing thirty (30) days’ prior written notice to the other party. Message Metric’s termination rights are in addition to any suspension rights it may have under this Agreement or the incorporated Acceptable Use Policy.
- Effect of Termination. Upon termination of the Subscription Term, all Fees then due and payable to Message Metric must be paid in full. Contingent upon its receipt of all such Fees, Message Metric will continue to make Your Data available for downloading through the termination date.
3. NON-COMPETE and NON-SOLICITATION.
You agree that during the Terms of Service, you and/or your Authorized User(s) may not use any of Message Metric’s Confidential Information, data, or other content relating to the Platforms or user accounts in any manner whatsoever other than for purposes of the Subscription Term, and shall not use any such information to compete, directly or indirectly with Message Metric, or solicit any competitor of Message Metric.
4. INCORPORATION BY REFERENCE.
The following documents are incorporated by reference as though fully included within these Terms of Service. Your acceptance of these Terms of Service constitutes your agreement to follow the following policies and laws.
- Call Recording Laws and Regulations;
- Message Metric Acceptable Use Policy; and
- Business Associate Agreement
5. NOTICE TO MINORS.
Message Metric aims to fully comply with all federal laws and, thus, at a minimum, you must be at least eighteen (18) years of age to use the Platforms. If you are a minor, you must obtain the consent of your parent or legal guardian to use the Platforms and agree to these Terms of Service. No one under eighteen (18) years of age may provide any personal information, and Message Metric does not knowingly collect personal information from children under the age of eighteen (18).
If you are under eighteen (18) years of age, please do not send any information about yourself to us, or to anyone else through the Platforms. Personal information includes, but is not limited to, your name, address, telephone number, or email address. If we learn we have collected any personal information from anyone under the age of eighteen (18), we will immediately delete that information per the requirements of the Children’s Online Privacy Protection Act and any other applicable laws. If you believe we have received information from or about a child under the age of eighteen (18), please contact us at email@example.com with a subject heading Terms of Service.
6. USER ACCOUNTS.
In order to use certain features of the Platforms, you may need to create an account. If the Platforms require you to create a user account, you are only to use your user account and not the user account of another without their permission.
You agree you shall immediately notify Message Metric of any unauthorized use of your username, password, or any other breach of security whatsoever. In order to safeguard your security, the security of these Platforms, and the user experience of others, you agree to log out of your account at the end of each session on the Platforms. Please remember to exercise particular caution when accessing your account from a public or shared computer so others are not able to view or record your password or other personal information.
As you browse these Platforms, you may be asked to provide certain registration details or other information. It is a condition of your use of the Platforms that all the information you provide on the Platforms is correct, current, and complete.
We reserve the right to disable any user identification code, username, or password, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have failed to comply with any provision of the Terms of Service, or any other applicable agreement, law, or regulation.
7. MOBILE APPLICATIONS.
From time to time, we may offer mobile applications for public consumption and/or download (the “Apps”). Please note, Apple, Inc. and Google, Inc. or any other third party provider for the Apps may have separate Terms of Service, which must be followed. You should always read and understand the policies of any third-party provider before making any purchase or downloading any of the Apps.
8. MESSAGE METRIC TECHNOLOGY.
Message Metric may make available technology to you on their Platforms, which may also be included in connection with the Message Metric Services. These include, but are not limited to the following:
8.1 Call Recording. When a calling party initiates a call to a tracking phone number, Message Metric will, at your discretion, create a digital audio recording of the telephone call. The laws regarding the notice and notification requirements of such recorded conversations vary by jurisdiction. You are responsible for applying and complying with the local laws in the relevant jurisdiction, including without limitation, those of the Federal Telephone Consumer Protection Act (“TCPA”) when using this feature. Message Metric provides the ability to play a customizable voice message at the beginning of each call to alert callers that the call will be recorded. If you choose to record telephone calls, you expressly agree and acknowledge that: (1) you authorize Message Metric to make incoming call recordings on your behalf; (2) you must notify your employee, contractor, officer, agent, authorized representative or other third party that their telephone conversation with a caller is being recorded by Message Metric; and (3) Message Metric shall have no liability whatsoever in respect of any use made by you, your employee, contractor, officer, agent, authorized representative or other third party, of the recordings and its contents, and/or of any personal information. You either: (1) authorize Message Metric to play a voice message advising the caller that the call is being recorded prior to the call being connected to the party answering the call; or (2) make the necessary arrangements to ensure that the caller is provided with the necessary warning about the presence of any recordings made of a call-in accordance with the law.
8.1.1 Text Appointment Reminders. Message Metric may provide an optional appointment reminder service, which may include additional related fees. As a matter of practice, Message Metric requires that you obtain the necessary consent from the parties to be contacted via text prior to utilizing our text appointment reminder services. Before utilizing our text services, you specifically represent that you have complied with the local laws in the relevant jurisdiction, including without limitation, those of the Federal Telephone Consumer Protection Act (“TCPA”) when using this feature. Additionally, if you choose to use our text appointment reminder services, you expressly agree and acknowledge that: (1) you authorize Message Metric to make outbound text messages on your behalf; (2) you must notify your text recipient in advance that an appointment reminder text will be sent on your behalf by Message Metric; (3) you must notify your text recipient in advance that carrier text message fees may apply to their receipt of the appointment reminder texts from Message Metric; and (4) Message Metric shall have no liability whatsoever in respect of any use made by you, your employee, contractor, officer, agent, authorized representative or third party, of the text message and its contents, and/or of any personal information.
8.2 Voicemail. Message Metric may provide optional voicemail services, which may include premium transcription services. In order to provide transcription services, Message Metric may leverage third-party transcription providers. If you wish to opt-out of voicemail transcription services, please contact our support team.
8.3 Call Transcriptions. Message Metric may make available technology that offers you and/or your Authorized User(s) the ability to transcribe the conversation on incoming telephone calls and voicemail messages (if customer requests). When a calling party initiates a call to a tracking phone number, Message Metric will, at your discretion, create a digital audio recording of the telephone call, transcribe the call (potentially using a third-party provider) and display the transcription to the customer.
8.4 Postcard Product. By opting in to use Message Metric’s postcard product, you will be subject to the service fees charged per printed postcard. You assume full responsibility that any custom content you submit is correct, and in the event that you submit incorrect information, misspellings, grammatical errors, etc., you agree to pay any and all associated correction fees.
8.5 Listing Services. Message Metric may offer a complimentary listing service (the “Listing Service”) under which your business information and customer reviews (collectively, the “Business Information”) are submitted to search engines, indexes and websites. You agree to participate in the Listing Service, and allow Message Metric to make this data available and provide registration services to third party sites. It is up to third party sites to accept the submissions, and Message Metric makes no warranty as to such sites’ willingness to do so. For so long as you continue to subscribe to the Message Metric Service, Message Metric will make a good faith attempt to ensure accuracy and confidentiality of the information we provide to third party sites under the Listing Service. We have no control of third party websites or resources that are provided by companies or persons other than that of Message Metric. Additional tools may be available from the third parties to provide additional updates to your information, but if you use such services, Message Metric is not liable for any claim arising out of the combination of such services with the information provided by the Listing Service. If you no longer have an active subscription, Message Metric may remove Your Data and any consumer reviews from websites controlled by Message Metric, at our sole discretion. You may request in writing explicit removal of the Your Data from such websites controlled by Message Metric. Message Metric is not obligated to request third parties to remove Your Data and any consumer reviews from third party websites. Message Metric may terminate your participation in the Listing Service, or these Terms of Service, at any time in that you are not in compliance with any other applicable agreement. Upon termination of this Terms of Service by either party, Your Data and any consumer reviews may remain in any data feeds provided to third parties under the Listing Service. Message Metric reserves the right to terminate the Listing Service as to you or any other user at any time for any reason or no reason.
You represent and warrant that you have obtained all necessary consents and/or approvals to use Your Data, specifically including any personal information of third parties, to contact such third parties located in Your Data to perform the Message Metric Services, specifically including those referenced herein. You acknowledge and agree that Message Metric may use any and all personal information of the third parties in conjunction herewith. You acknowledge and agree that Message Metric shall not be liable for and that you will defend, indemnify, and hold harmless Message Metric from any third party claims arising from the use of the third party personal information, specifically including any contact made with third parties in association with the Message Metric Services you have elected to use.
9. TECHNICAL SUPPORT.
In connection with the provision of technical support, training, and other Message Metric Services, you agree that Message Metric may remotely log-in to your computers, devices, and systems for purposes of providing the support, training, or other Message Metric Services, including, without limitation, technical trouble shooting, answering questions, benchmarking and providing training to you or your personnel. Remote login may be conducted through the use of third party entities. You further agree that Message Metric may also remotely log-in at any time as necessary or appropriate to maintain our Message Metric Services. Message Metric reserves the right to log off accounts that are inactive for an extended period of time. In addition, Message Metric may quarantine suspected messages. Message Metric also may modify any domain and user settings with or without notice, including without limitation, altering settings so that spam or bulk e-mail is denied, rather than being quarantined, to avoid space capacity issues which jeopardize the technical or economic viability of the services offered, or the system used to implement the services. You agree that Message Metric may automatically check the version of a Message Metric Service that you are utilizing and may provide updates or upgrades remotely via the Internet. You consent to the receipt of updates or upgrades by means of download to your computers and systems. You agree to keep your computers powered on during the Message Metric Services runtimes that you specify. You must add Message Metric or its third party affiliate to the “allowed” list of programs and ensure that your firewall and anti-virus software programs do not block us. Additionally, your practice management software must always be accessible by Message Metric. It is your responsibility to contact Message Metric if you are upgrading or changing your computer systems.
The fees for the Message Metric Service and any additional Services (“Fees”) are set forth in the Order Form and are payable in advance, irrevocable, and non-refundable except as set forth in the Order Form and these Terms of Service. You agree to provide Message Metric with complete and accurate billing and contact information. Where payment by credit card is indicated in the Order Form, or you otherwise provide Message Metric with credit card information, you authorize Message Metric to bill such credit card: (a) at the time that you order the Message Metric Service or other Services set forth in the Order Form; (b) for any billing frequency otherwise established in the Order Form; and (c) at the time of any renewal, for the amount charged plus any applicable sales taxes for any renewed Subscription Term.
11. NON-PAYMENT; OTHER SUSPENSION RIGHTS.
Message Metric may terminate the Message Metric Service if the billing or contact information provided by you is false or fraudulent. Message Metric also reserves the right, in its discretion, to suspend your access and/or use of the Message Metric Service: (a) where any payment is due but unpaid and you have been requested but failed to promptly cure such payment failure; or (b) in the event a dispute arises on your account as to who at your business has authority to act or manage your account and Message Metric is not promptly provided with written instructions from the interested parties associated with your account that fully resolves the dispute. You acknowledge and agree that it a dispute arises as to management of your account, then: (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, Message Metric may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, Message Metric may assume that the person or entity that has been making payments on your account has the authority to manage the account. You agree that Message Metric shall not be liable to you nor to any third party for any suspension of the Message Metric Service resulting from your non-payment of fees or from a dispute as to the management rights to your account.
12. PAYMENT TRANSACTIONS.
If you wish to purchase any product or service made available through the Platforms (each such purchase, a “Transaction”), you may be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card, your billing address, and your shipping information. You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any transaction. By submitting such information, you grant to Message Metric the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
All descriptions, images, references, features, content, specifications, products, and prices of products and services described or depicted on the Platforms are subject to change at any time without notice. Certain weights, measures, and other descriptions are approximate and are provided for convenience purposes only. The inclusion of any products or services on the Platforms does not imply or warrant that these products or services will be available. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any item purchased from Message Metric. By placing an order, you represent that the products ordered will be used only in a lawful manner. Message Metric reserves the right, with or without prior notice, to do any one or more of the following: (a) limit the available quantity of or discontinue any product or service; (b) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (c) bar any user from making or completing any or all Transaction(s); and (d) refuse to provide any user with any product or service.
You agree that by placing an order on the Platforms, you are entering into a binding contract with Message Metric and agree to pay all charges that may be incurred by you or on your behalf through the Platforms, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions.
13. INTELLECTUAL PROPERTY OWNERSHIP.
Unless otherwise noted, all content on the Platforms, including any names, logos, trademarks, service marks, brand identifiers, copyrights, trade dress, or other intellectual property appearing on the Platforms, including the organization, compilation, look and feel, illustrations, graphics, artworks, videos, music, software, and other works of the Platforms (the “Works”) are owned by Message Metric, or used with permission of the third party (the “Owners”), and are protected under copyright, trademark, and other intellectual property and proprietary rights laws. All right, title, and interest to the Works remain with Message Metric and/or the Owners. Nothing herein shall be interpreted to grant you a license to use any of the Works without Message Metric and/or the Owners permission.
14. CONTENT FROM THIRD PARTIES.
Any and all content from third parties is for informational purposes only and Message Metric does not verify the accuracy or truthfulness of any material. Specifically, Message Metric does not independently verify information. Message Metric does not independently verify the accuracy or truthfulness with respect to the operation of any of the locations identified in the Platforms, including the hours of operation, availability of certain products/services, or otherwise.
15. CONTENT POSTED BY USERS.
Any and all content (including replies to reviews) posted by you to the Platforms, to Message Metric’s social media pages, or any other area to which you may have access to or the ability to post content, must comply with these Terms of Service, any other agreement controlling your relationship with Message Metric, and any applicable federal, local, or state laws and regulations.
By using the Platforms, you are agreeing to these Terms of Service, and warrant that: (a) you have obtained the necessary permissions of any and all third parties for any content posted and/or otherwise made available by you; (b) to the best of your knowledge, any and all content posted and/or otherwise made available by you is truthful and accurate, and not misleading in any manner; and (c) you are not violating any law, regulation, code, or otherwise in your posting and/or sharing of the content, including intellectual property, right of privacy, and defamation, or any other applicable law, regulation, or order.
For purposes of clarity, you specifically agree to comply with all local, state and federal laws including but not limited to HIPPA as it relates to PHI. If you are unsure whether the content you are considering posting relates to any HIPPA and/or PHI measure, you agree to seek independent counsel before posting said content.
You further agree to indemnify, defend, and hold harmless Message Metric from any and all liability, claim, cause of action, loss, or damages resulting from content you post and/or otherwise make available to the Platforms, to Message Metric’s social media pages, or any other area to which you may have access to or the ability to post content.
You hereby grant an irrevocable, fully prepaid, perpetual license to Message Metric to use anything posted and/or otherwise made available by you to the Platforms.
16. RESTRICTIONS ON USE.
Except as expressly provided herein, nothing on the Platforms shall be construed as granting or conferring any license under Message Metric’s and/or the Owners’ intellectual property rights, whether by estoppel, implication, or otherwise. Notwithstanding anything herein to the contrary, Message Metric may revoke any of the foregoing rights and/or your access to the Platforms, or any part thereof, including blocking your IP address, at any time without prior notice.
You are expressly prohibited from using any Front End Code for any purpose outside of the intended design and implementation of your authorized use of the Message Metric Service. Any replication or use of any aspect of the Front End Code or other Message Metric application or Services for any purpose designed or intended to compete with Message Metric’s solutions is strictly prohibited.
17. TECHNICAL SUPPORT.
During the Subscription Term, you will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and any additional standard technical support resources (collectively, “Technical Support”) for the Message Metric Service offered by Message Metric from time to time, and the terms of conditions of which may be described and updated from time to time on the support or customer care sections of the relevant Message Metric website (www.MessageMetric.com). Message Metric reserves the right to modify the posted terms and conditions for Technical Support, at any time in its sole discretion.
The Health Insurance Portability and Accessibility Act (“HIPAA”) relates to the handling of health information, namely to regulate the transmission of PHI. Message Metric is not a health provider and does not provide any type of medical care, services, or otherwise to patients, or any other person or entities. While the Platforms may be used to store a patient’s PHI, Message Metric does not utilize any PHI or other information for any type of medical care, or other related use. You agree to alert Message Metric in writing if you will be using the Services to store or process PHI. To the extent that you do use the Services to store or process PHI, then the terms of the Message Metric Business Associate Agreement will apply to any PHI stored or processed by you using the Services and the terms of the Message Metric Business Associate Agreement are incorporated herein by reference. Upon either your or Message Metric’s request, both parties will execute a sign-able version of the Message Metric Business Associate Agreement. To the extent necessary, you are solely responsible for obtaining patient consents or authorizations prior to using the Services to store or process PHI and prior to allowing access to PHI by Message Metric. You agree to indemnify and hold Message Metric harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees) that arise due to your failure to obtain any such consents or authorizations.
19. SOCIAL MEDIA AND LINKED SITES.
19.1 Third Party Review Sites (e.g. Yelp). In the event you use the services, whether in part or in the entirety, of third party review sites, e.g. Yelp, you agree and consent to be bound by their terms of service and privacy policies located at https://www.yelp.com/static?p=tos and https://www.yelp.com/tos/privacy_en_us_20160131 respectively. In some cases, these third-party review sites may post community guidelines that impose specific restrictions and/or penalties which may affect your relationship with these 3rd Party Sites. For example, Yelp imposes specific penalties on users that “solicit reviews”, see https://www.yelp-support.com/article/What-is-Yelp-s-review-solicitation-penalty. Message Metric considers the use of our services to “solicit reviews” on third-party review sites like Yelp to be violative of our Terms of Service and specifically our Community Guidelines, see Section 24 below. Moreover, use of the Message Metric services to “solicit reviews” on Yelp may violate their terms of service and may subject you to penalties. These penalties may cause you to incur fees, fines, and/or result in lost income or business opportunities. In using the Message Metric services, you agree to abide by these third-party terms and acknowledge that Message Metric does not interpret, analyze, and/or enforce these third-party terms nor do we arbitrate any disputes that you may have with how these terms are interpreted and/or applied. Consequently, Message Metric is not liable for any losses, fines, and/or penalties incurred by you and/or anyone acting on your behalf who violates these third-party terms.
20. USE OF NAMES IN MARKETING.
You may use Message Metric’s name and credentials in an appropriate and acceptable manner for your standard marketing promotions, provided that you agree to cease or alter such use at Message Metric’s request where such use is contrary to Message Metric’s branding policies, could cause any brand confusion in the market or is otherwise objectionable to Message Metric. Similarly, Message Metric may use your business name in an appropriate and acceptable manner for standard marketing promotions, provided that Message Metric agrees to cease or alter such use at your request where such use is contrary to your branding policies, could cause any brand confusion in the market or is otherwise objectionable to you. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and web site presentation and promotion, etc.
21. SUBMITTED IDEAS.
Any ideas, comments, suggestions, notes, drawings, concepts, or other information submitted to Message Metric, whether through the Platforms or by other means, shall be deemed to be non-confidential and non-proprietary. Message Metric does not owe you any confidentiality or nondisclosure obligations, whether express or implied. Message Metric shall be entitled to unrestricted use of the idea, comment, suggestion, note, drawing, concept, or other information for any purpose whatsoever, commercial or otherwise, without compensation to you.
22. OWNERSHIP OF YOUR DATA.
As between you and Message Metric, Your Data and any similar data provided to Message Metric outside of the uploading process (either in hard copy or electronic format) is and shall remain your property. To enable Message Metric to provide you with the Message Metric Service, and subject to the Terms of Service, you hereby grant to Message Metric a non-exclusive right to use, copy, distribute and display Your Data solely in connection with Message Metric’s operation of the Message Metric Service on your behalf. You, not Message Metric, shall have sole responsibility for the accuracy, integrity, and reliability of Your Data, and Message Metric will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data. Message Metric will protect any of Your Data provided to Message Metric as confidential in accordance with the Confidential Information provision below.
23. CONFIDENTIAL INFORMATION.
For purposes of this Agreement, confidential information shall include the business terms in the Order Form, Your Data, the Message Metric Service and the Message Metric Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Message Metric will restrict its employees’ access to Your Confidential Information to only those employees necessary to successfully provide the Message Metric Service. Message Metric may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for Message Metric in connection with the performance of this Agreement. Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
24. COMMUNITY GUIDELINES.
The Platforms, Linked Sites, and Social Media Sites may include the ability to post comments or otherwise engage in communications with third parties through bulletin boards, chat rooms, blogs, comment sections, or other community forums (the “Community Forums”). The following governs the use of the Community Forums:
- Message Metric will monitor the Community Forums on a regular basis for any violations of these Terms of Service, or any illegal content.
- Message Metric will not act as an arbiter for any dispute or disagreement between users and shall have no liability to you for any content posted in the Community Forums and is under no obligation to edit or modify information available in the Community Forums.
- Message Metric reserves the right, in its sole and complete discretion, to refuse to post, or remove, any material submitted to the Community Forums.
- You acknowledge and agree that Message Metric may store any material posted to the Community Forums. You further acknowledge and agree that Message Metric may use material posted by you in the Community Forums for any purpose whatsoever, including but not limited to incorporating the submission into content that may be commercial in nature.
- Prohibited Statements – you are expressly prohibited from submitting any of the following:
- Any submissions that disparages competitive products, is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, racially offensive, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent, or otherwise objectionable.
- Any submission that would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law, including without limitation, material that depicts child pornography, acts of violence, drug use, or would violate the regulations of the U.S. Securities and Exchange Commission, or any rules of a securities exchange.
- Any submission that may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary rights of any party.
- Any submission that impersonates any person or entity, or otherwise misrepresents your affiliation with a person or entity.
- Unsolicited promotions, political campaigns, advertising, or solicitations.
- Private information of any third party, including without limitation, addresses, phone numbers, email addresses, social security numbers, credit card numbers, or any other similar piece of information including but not limited to PHI.
- Viruses, spyware, Trojans, corrupted data, or any other harmful, disruptive, or destructive files.
- Any other submission that, in Message Metric’s sole and complete discretion, is inappropriate or objectionable, or which restricts or inhibits any other person from using or enjoying the Platforms, or which may expose Message Metric or its users to any harm or liability of any type.
25. NO ARCHIVE.
The Platforms are not and shall not function as an archive. Message Metric shall have no liability to you or any other person for loss, damage, or destruction to any submission. You shall be solely responsible for maintaining independent archival and backup copies of any submission.
Without limiting anything herein, the Platforms, its content, and all of its features, are provided to you “AS IS” and “AS AVAILABLE” without warranty of any kind with respect to the Platforms, its content, and of its features, either express or implied, including but not limited to fitness for a particular purpose, title, or non-infringement. No advice or information, whether oral or written, obtained by you from Message Metric shall create any warranty, representation, or guarantee not expressly stated herein. Additionally, Message Metric does not make any warranties that the Platforms will be secure, error free, or otherwise meet your expectations. Message Metric does not warrant that the Platforms, its content, or features are correct, accurate, or reliable. Message Metric reserves the right to change any part of the Platforms at any time without notice.
27. LIMITED WARRANTIES.
You warrant that your business shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations, as well as the Message Metric Acceptable Use Policy, in connection with your use of the Message Metric Service, and you agree to indemnify and hold Message Metric harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees), that arise due to your violation of law or breach of this warranty in your use of the Message Metric Service.
28. LIMITATION OF LIABILITY.
Your use of the Platforms is at your own risk. Message Metric, its affiliates, and the respective officers, directors, agents, and representatives will not be liable to you, or any third party, for any damages, direct or indirect, incidental, consequential, special, or punitive, including, without limitation, loss of data, income, profit, or goodwill, loss of or damage to property and claims of third parties arising out of your access to or use of the Platforms, or arising out of any action taken in response to or as a result of the Works, or other information available on the Platforms, however caused, whether based on breach of contract, tort, proprietary rights infringement, product liability, or otherwise. The foregoing shall apply even if Message Metric was advised of the possibility of such damages. If you become dissatisfied in any way with the Platforms, the Terms of Service, or any other applicable agreement, your sole and exclusive remedy is to stop your use of the Platforms and its services. You hereby waive any and all claims against Message Metric, its affiliates, officers, directors, agents, representatives, and licensors arising out of your use of the Platforms. If any portion of this limitation on liability is found to be invalid or unenforceable, then the aggregate liability of Message Metric, its affiliates, and the respective officers, directors, agents, and representatives shall not exceed one hundred dollars ($100). The Platforms would not be provided without such limitations and you agree that the limitations and exclusions of liability, disclaimers, and exclusive remedies herein will survive even if found to have failed their essential purpose.
29. NO FRAMING OR LINKING.
Framing, in-line linking, or other methods of association with the Platforms are expressly prohibited without prior written approval from Message Metric.
30. INTERNATIONAL USERS
The Platforms are hosted in the United States. If you are attempting to access the Platforms from a physical location within the European Union, Asia or any other region with laws or regulations governing data collection, use, and disclosure that differ from the United States, please be advised that your use of the Platforms is governed by United States law, and the Terms of Service. To the extent you provide Personal Information through the Platforms you are transferring your Personal Information to the United States and you consent to: such transfer; the application of the laws of the United States and the State of California with respect to any dispute arising from or related to your use of the Platforms; exclusive jurisdiction of the courts of the State of California.
31. CHOICE OF LAW & VENUE AND DISPUTES.
The laws of the State of California shall govern these Terms of Service without regard to conflict of laws provisions.
Any dispute relating in any way to your visit to, or use of, the Platforms, to the products you purchase through the Platforms (including a subscription), or to your relationship to Message Metric shall be submitted to confidential arbitration in Orange County, California; provided, however, that to the extent that you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of California. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts of California.
Arbitration under these Terms of Service will be conducted be administered by the JAMS, Inc. (“JAMS”), pursuant to its Arbitration Rules & Procedures (the “JAMS Rules”). The arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication, motions to dismiss and demurrers, and motions for class certification, prior to any arbitration hearing. The arbitrator shall have the power to award any remedies available under applicable law, and the arbitrator shall award attorneys’ fees and costs to the prevailing party, except as prohibited by law. You agree that the arbitrator shall administer and conduct any arbitration in accordance with California law, including the California Code of Civil Procedure and the California Evidence Code, and that the arbitrator shall apply substantive and procedural California law to any dispute or claim, without reference to the rules of conflict of law. To the extent that the JAMS Rules conflict with California law, California law shall take precedence. The decision of the arbitrator shall be in writing, and the arbitrator’s award will be final and binding and may be entered into as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms of Service will be joined to an arbitration involving any other party subject to these Terms of Service, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platforms or these Terms of Service must be filed within one (1) year after such claim of action arose or be forever banned.
YOU AND MESSAGE METRIC AGREE THAT EACH MAY ONLY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Message Metric agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
32. ATTORNEYS’ FEES.
In the event that either Message Metric or you or your Authorized User(s) shall institute an action or proceeding to enforce any rights hereunder, including any action for collection, the prevailing party shall be entitled to seek and recover reasonable attorney’s fees, costs, and expenses.
You agree to defend, indemnify and hold harmless Message Metric, members, affiliates and/or partners, and its and their officers, directors, partners, shareholders agents, licensees and employees (cumulatively “Message Metric Indemnitees”) from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney’s fees that may, at any time, arise out of or relate to your authorized, unauthorized, lawful or unlawful use of the Platforms, including but not limited to the Message Metric Services, your breach of the Terms of Service as stated herein or as modified from time to time in Message Metric’s sole discretion, your inability to access the Message Metric Materials and/or Message Metric Services, the use of any linked sites, your reliance on any errors or omissions, or the propagation and/or contraction of any computer virus in connection with your use of the Message Metric Materials and/or Message Metric Services.
34. FORCE MAJEURE.
Except for Your obligation to pay Fees for the Message Metric Service or other Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, civil disturbance or Act of Parliament or other Government action, strike, postal delay, shortage of materials, extreme weather conditions, disaster conditions, acts of terrorism, or the stability or availability of the Internet or a portion thereof, or any other reason beyond the control of Message Metric.
35. ABILITY TO ACCEPT TERMS OF SERVICE.
You affirm that you are more than the legal age in the territory in which you reside, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms of Service, and to abide by and comply with the Terms of Service.
36. CHANGES AND UPDATES.
We may revise these Terms of Service from time to time. Your use of the Platforms following any revised Terms of Service shall be deemed an acceptance of the revised policy. Your use of the Platforms following any revised Terms of Service shall be deemed an acceptance of the revised policy governing any and all use, including prior use, of the Platforms by you. We recommend you review these Terms of Service from time to time to stay updated. We will make a commercially reasonable effort to obtain your consent before implementing revisions which materially affect the disclosure or use of your Personal Information. If you disagree with the terms of these Terms of Service at any time, your sole remedy is to terminate your use of the Platforms and inform us of such termination.
37. MISCELLANEOUS TERMS OF SERVICE.
37.1 Notice. Notices regarding this Terms of Service to Message Metric shall be in writing and sent by first class mail or overnight courier (if from within the United States), or international courier, addressed to Message Metric, Attn. Administrator, 27762 Antonio Parkway L1-520, Ladera Ranch, CA 92694. Message Metric may give notice applicable to Message Metric’s general customer base by means of a general notice on the Message Metric Service portal, and notices specific to you by electronic mail to your designated contact’s email address on record with Message Metric, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to your address on record in Message Metric’s account information. All notices shall be deemed to have been given three (3) days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile, email or posting to the Message Metric Service portal.
37.2 Waiver. The failure of either party to enforce any right or provision in this Terms of Service shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
37.3 No Joint Venture. None of the Terms of Service or use of the Message Metric Service shall be construed as constituting an employer-employee, joint venture, pooling arrangement, partnership, teaming effort, or agency arrangement between the parties. Neither party shall have any right to obligate or bind the other in any manner whatsoever, and nothing contained herein shall give, or is intended to give, any rights of any kind to any third party.
37.4 No Assignment. You may not assign or transfer this Terms of Service or any interest herein, in whole or in part, without Message Metric’s prior written approval, which approval shall not be unreasonably withheld. Any attempted assignment or grant in derogation of the foregoing shall be void.
37.5 Headings and Terms Contractual. Paragraph headings contained herein are solely for the purpose of aiding in speedy location of subject matter and are not in any sense to be given weight in the construction of this Terms of Service. These Terms of Service are contractual in nature and not mere recitals.
37.6 Severability and Construction. If any part of these Terms of Service is determined to be invalid or unenforceable pursuant to applicable law, then it shall be construed in a manner which is valid and enforceable that is closest to the intentions set forth herein. The remainder of the Terms of Service shall remain in full force and effect.
37.7 Entire Terms of Service. These Terms of Service supersede all previous arrangements or understandings, whether written or oral, and contain the entire agreement of the parties with respect to the subject matter thereof and hereof.
37.8 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the Message Metric Service, including Message Metric technology. You represent that You are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the Message Metric Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.
37.9 Government End Use. If you are an agency or unit of the U.S. Government (“Government”), the Message Metric Service is provided for ultimate Government use solely in accordance with the provisions of the Federal Acquisition Regulation (“FAR”) and supplements thereto, including the Department of Defense (“DoD”) FAR Supplement (“DFARS”, set forth in this Section. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR §12.211 (Technical Data) and FAR §12.212 (Computer Software) and, for DoD transactions, DFARS § 252.227-7015 (Technical Data – Commercial Items) and DFARS § 252.227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If the Government has a need for rights not conveyed under these terms, it must negotiate with Message Metric to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
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Updated: November 2, 2017