End User License Agreement
This End User License Agreement is an online license agreement between you and Gigabark, LLC, relating to your use of the Gigabark services more fully described below. By clicking on the “I Agree” button below, you agree to be bound by the terms of this End User License Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK THE ‘I Agree’ BUTTON.
Intellectual Property Rights
This Website and the Gigabark Services are the property of Gigabark, LLC, and are protected by U.S. and foreign copyright and other intellectual property laws. All rights not expressly granted herein are reserved to Gigabark, LLC.
You may not publish, display, disclose, rent, lease, distribute or transmit the Software to others, nor shall you modify the Software or create derivative works based on the Software. The Software is provided to you in machine-readable form. You may not reverse engineer, decompile, disassemble or otherwise create a human-readable version of the Software, or any portion thereof, nor shall you permit others to do so.
This Gigabark End User License Agreement (“Agreement”) is by and between Gigabark, LLC, Inc., (“Gigabark”), a Georgia Limited Liability Company with mailing address at 3423 Piedmont Road NE, Suite #244, Atlanta, GA 30305, and you, and your heirs, assigns, agents and contractors (collectively, “You”) and is made effective as of the date of execution of this Agreement or electronic submission of this Agreement. This Agreement sets forth the terms and conditions of Your use of Gigabark’s voice and message delivery and broadcasting services and all related web pages, software, tools, and techniques (“Gigabark Services”) and represents the entire Agreement between You and Gigabark concerning the subject matter hereof. By using Gigabark Services, You acknowledge and agree that You have read, understand, acknowledge and agree to be bound by all the terms and conditions of this Agreement, along with any new, different or additional terms, conditions or policies, including, but not limited to, the Universal Terms of Service that Gigabark may establish from time to time. Such agreements may be found on Gigabark’s web site and are incorporated into this Agreement by reference.
1. The Service
Gigabark currently provides the Gigabark Services to its customers on per transaction and monthly subscription models. Gigabark shall provide You with the ability to design and send targeted voice and message campaigns (messages) to those phone numbers or addresses, and access data used to generate reports on campaigns or customer responses; provided, however, You abide by the terms and conditions set forth herein and in each of Gigabark`s policies and procedures, as may be amended by Gigabark from time to time.
This Agreement shall remain in force unless cancelled in writing by either party with thirty (30) days advance notice.
Gigabark’s Services allows You to:
i. create voice messages or other electronic communications methods to distribute messages to each subscriber in a call list; and
ii. access campaign and subscriber information for reporting purposes, including; hit rates reports, termination type, and call results.
2. Availability of Services
Subject to the terms and conditions of this Agreement, Gigabark shall use commercially reasonable efforts to provide Gigabark Services on a twenty-four (24) hours a day, seven (7) days a week basis throughout the term of this Agreement. You acknowledge and agree that from time to time Gigabark Services may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that Gigabark may undertake from time to time; or (iii) causes beyond the control of Gigabark or that are not reasonably foreseeable by Gigabark, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures. You acknowledge and agree that Gigabark has no control over and has made no representation or warranty about the availability of the Gigabark Services on a continuous or uninterrupted basis.
Gigabark shall use commercially reasonable efforts to provide timely delivery of all messages and calls sent using Gigabark Services throughout the term of this Agreement. You acknowledge and agree that from time to time messages or calls sent using Gigabark Services may be delayed or rejected for any reason, including, without limitation: (i) equipment malfunctions; (ii) routing errors; (iv) oversubscription; (iii) causes beyond the control of Gigabark or that are not reasonably foreseeable by Gigabark, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks network congestion or other failures. You acknowledge and agree that Gigabark has made no representation or warranty about the timeliness or successfulness of delivery of calls or messages sent using Gigabark Services.
3. Your Obligations
By using the Gigabark Services, You acknowledge and agree that if you are an individual You are age eighteen (18) years old or older, or that you are a validly-formed business entity such as a corporation or limited liability company with the authority to enter into this Agreement. The Gigabark Services are available only to persons or entities that can enter into legally binding contracts under applicable law.
Specific pricings for You are set forth at the time that messages are paid for. Gigabark reserves the right to modify these prices at any time for any reason without prior notification to You.
You also acknowledge and agree that You shall not use the Gigabark Services to send messages or upload files pertaining to the following types of information:
* personal information about minors without their parent’s consent,
* pornography or nude pictures,
* tasteless images, sound files, or messages
* any content that might be construed as offensive,
* excessively violent material, messages, or sound files,
* any information pertaining to unlocking software illegally,
* pyramid schemes,
* chain letters or messages,
* impersonations of another person,
* encouraging the use of a controlled substance,
* selling or promoting products that are unlawful in the location where the message or call is received,
* advocating, promoting, or encouraging violence against any person, organization, or the government, or
* links to or information about web pages containing any of the aforementioned content.
Gigabark Services also provides some customers, at its sole discretion, the ability to specify to the called or messaged party the phone number or address from which a call or message appears to originate. You acknowledge and agree that You shall not use the Gigabark Services to send messages or calls which would appear to originate from a phone number or address not owned by You.
You acknowledge and agree that You shall not use the Gigabark Services to send messages or calls to any party which has requested to be removed from your call list.
You acknowledge and agree that You shall not use the Gigabark Services to send unsolicited messages or calls to any telephone number on state or national Do-Not-Call registries, except when, and following any applicable laws:
* You have received prior permission, or
* You are a tax-exempt non-profit organization, or
* You have an established business relationship with the called party. An established business relationship exists if the called party has made an inquiry, application, purchase, or transaction regarding products or services offered by You in accordance with any applicable federal, state, and local laws.
You acknowledge and agree that You have provided accurate, current and complete information in the application process and that You shall notify Gigabark within five (5) business days when any of the information You provided as part of the application and/or registration process changes. Failure by You, for whatever reason, to respond within five (5) business days to any inquiries made by Gigabark to determine the validity of information provided by You, shall constitute a material breach of this Agreement. If You provide any information that is inaccurate, not current, false, misleading or incomplete, or if Gigabark has reasonable grounds to believe that Your information is inaccurate, not current, false, misleading or incomplete, Gigabark has the absolute right, in its sole discretion, to immediately terminate this Agreement and/or the Gigabark Services and close Your account. In such event You will still be responsible for any amounts due to Gigabark and You will pay same within five (5) days notice of termination.
Gigabark recommends that You carefully consider whether the email, text message, or telephone call You are sending may be considered spam. Generally, if You are not sure that You have received someone’s permission to send them email, text message, or telephone call, then it is probably spam.
5. Intellectual Property
Except as expressly stated elsewhere in this Agreement, this Agreement does not grant You any rights in the Gigabark Services and all rights are reserved by Gigabark. You acknowledge and agree that the Gigabark Services, the names and logos of Gigabark and all related product and service names, design marks and slogans, are the sole and exclusive property of Gigabark and its affiliates, and that You are not authorized to use any of them in any advertising, publicity, or other commercial venture without the prior written consent of Gigabark, which may be withheld, conditioned or delayed in the sole and absolute discretion of Gigabark.
6. Storage and Security
At all times, You shall bear full risk of loss and damage to Your Gigabark Services. You are entirely responsible for maintaining the confidentiality of Your password and account information. You acknowledge and agree that You are solely responsible for all acts, omissions and use under and charges incurred with Your account or password or in connection with Your use of the Gigabark Services. You shall be solely responsible for undertaking measures to: (i) prevent any loss or damage to Your customer lists; (ii) maintain independent archival and backup copies of Your customer lists; and (iii) ensure the confidentiality of Your password. Gigabark’s Gigabark Services are not an archive service and Gigabark shall have no liability to You or any other person for loss, damage or destruction of any of Your content. If Your password is lost, stolen or otherwise compromised, You shall promptly notify Gigabark, whereupon Gigabark shall suspend access to Your Gigabark Services by use of such password and issue a replacement password to You or Your authorized representative. Gigabark shall not be liable for any loss that You may incur as a result of someone else using Your password or the Gigabark Services, either with or without Your knowledge and/or consent. However, You could be held liable for losses incurred by Gigabark or another party due to someone else using Your Gigabark Services or password.
7. Gigabark’s Rights
Gigabark explicitly reserves the right in its sole discretion to: (i) modify its pricing; (ii) review Your use of the Gigabark Services for excessive space and bandwidth utilization and to terminate this Agreement and Your use of the Gigabark Services immediately by written notice to You or apply additional fees if Your use exceeds allowed levels; (iii) establish limits and guidelines concerning the use of the Gigabark Services, including but not limited to the maximum size of campaigns sent through our servers and the maximum number of occasions that You may access our servers using the Gigabark Services in any given period of time; (iv) monitor calls or messages, record calls or keep copies of messages sent using Gigabark Services to inspect content for adherence to all terms of this Agreement; (v) terminate this Agreement and/or Your use of the Gigabark Services immediately without written notice to You for unsolicited, commercial messages or calls (e.g., spam, sending email to subscribers who have not “opted-in”); illegal access to other computers or networks (e.g., hacking); distribution of Internet viruses or similar destructive activities; non-payment of Gigabark Services fees; activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties; activities prohibited by the laws of the United States and/or foreign territories in which You conduct business; activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography; activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, or racially, ethnically, or otherwise objectionable; activities designed to impersonate the identity of a third party; and activities designed to harm minors in any way, and other activities whether lawful or unlawful that Gigabark determines in its sole discretion may be harmful to its other customers, operations, or reputation; (vi) terminate this Agreement and/or Your use of the Gigabark Services immediately without written notice to You if Your use of the Gigabark Services results in, or is the subject of, legal action or threatened legal action against Gigabark or any of its affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit, and (vii) terminate this Agreement and/or Your use of the Gigabark Services immediately without written notice to You if You have not accessed or logged into it for ninety (90) days or more. If Gigabark terminates this Agreement or Your use of the Gigabark Services, Gigabark may, at its own option, remove and destroy data and files stored by You on Gigabark’s servers. Gigabark has no obligation to monitor Your Gigabark Services, but reserves the right in its sole discretion to do so.
You agree that Gigabark may use Your Logo and Name in Gigabark.s marketing campaigns, including but not limited to press releases, social media announcements, website listings, newsletters and general public relations activities. You also agree that any materials generated by Gigabark for You that are not designated as proprietary may be used by Gigabark as part of its portfolio for marketing activities.
For every message or call You send out using the Gigabark Services, You agree that Gigabark may automatically attach a notice to it stating that the email was powered by the Gigabark Services, providing instructions to the recipient for reporting spam or other abuse, or a similar message.
8. Disclaimer of Warranties
Gigabark expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement, concerning any subject matter of this agreement. The Gigabark Services are provided on an “As Is” and “As Available” basis without any representation or warranties whatsoever,
SECURITY MECHANISMS IMPLEMENTED BY THE GIGABARK SERVICES HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE GIGABARK SERVICES SUFFICIENTLY MEET THEIR REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE GIGABARK SERVICES IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GIGABARK OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE GIGABARK SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, GIGABARK’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES YOU PAID FOR THE SERVICES. GIGABARK IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
(a) This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof.
(b) This Agreement may be amended only by a writing signed by both parties.
(c) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of Georgia, U.S.A., excluding its conflict of law provisions.
(d) Unless otherwise agreed in writing, all disputes relating to this Agreement (excepting any dispute relating to intellectual property rights) shall be subject to final and binding arbitration in Fulton County, Georgia, under the auspices of the American Arbitration Association, with the losing party paying all costs of arbitration.
(e) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.
(f) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
(g) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination.
(h) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of Your assets to another entity.
(i) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns.
(j) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
(k) The relationship between Gigabark and You is that of independent contractors and neither
You nor your agents shall have any authority to bind Gigabark in any way. WHEREFORE, Gigabark and You do hereby enter into this Agreement by your clicking on the ‘I Agree’ button or by your checking any checkbox which states that you understand and/or accept and/or agree to the terms and conditions herein.