THE LEGAL AGREEMENTS SET OUT BELOW GOVERN YOUR USE OF THE CODEBROKER SERVICE AS DEFINED BELOW. TO AGREE TO THESE TERMS, CLICK “AGREE.” IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “AGREE,” AND DO NOT USE THE SERVICES.
1. ACCEPTANCE OF TERMS
2. DESCRIPTION OF SERVICE
The Service provides you with the ability to define and execute mobile promotions for viewing and access by third-parties (“End Users”) and to track redemption rates for these mobile promotions. Unless explicitly stated otherwise, any new features that augment or enhance the current Service, including the release of new CodeBroker Mobile Promotion resources, shall be subject to these Terms. In order to use the Service, you must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device.
2.1 WRITTEN AGREEMENTS, AND WRITTEN INVOICES
These Terms shall also apply if you are executing a written agreement or written invoice with CodeBroker; however, in such case, the terms of your written agreement and/or written invoice (a “Written Agreement”) with CodeBroker shall govern in the case of any conflicting terms. Further, Sections 5 and/or 6 of this Agreement shall not apply if fees, payment terms and/or term/termination are specified on i) any written agreement or statement of work between the parties, or ii) such terms are specified on any invoice received from CodeBroker for the Services.
2.2 QR CODE DELIVERY
In the event that your use of the Service involves any QR Code delivery, the following license shall apply: CodeBroker hereby grants to you the non-exclusive, non-transferable license, during the term of this Agreement and solely in the United States and Canada, to use the Service for the sole purpose of defining and executing QR Code Delivery campaigns, including the right to copy, publish, or otherwise distribute the QR Codes generated by CodeBroker as specified herein. MORE SPECIFICALLY, YOU MAY ONLY DISTRIBUTE QR CODES CREATED BY CODEBROKER IN THE UNITED STATES AND CANADA AND ANY DISTRIBUTION OR OTHER USE OF QR CODES CREATED BY CODEBROKER OUTSIDE OF THE US AND CANADA IS EXPRESSLY PROHIBITED.
3. REGISTRATION OBLIGATIONS
In consideration of use of the Service, you represent that you are of legal age to form a binding contract. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service’s registration form (such information to be considered the “Registration Data” as used herein) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or CodeBroker has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, CodeBroker has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof). You also understand and agree that the service may include certain communications from CodeBroker, such as service announcements and administrative messages, and that these communications are considered part of CodeBroker membership and you will not be able to opt out of receiving them.
4. ACCOUNT, PASSWORD AND SECURITY
You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify CodeBroker of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. CodeBroker cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
5. PAYMENT TERMS
All fees for the Services are specified at time of the purchase of such Services and/or on your invoice. Unless otherwise noted herein, all fees are non-refundable. All currency references are in U.S. dollars.
5.2 MONTHLY BILLING
The credit card that you provide as part of your Registration Data for the Services will be automatically billed on a monthly basis. All currency references are in U.S. dollars.
5.3 SET-UP FEE
When you submit your first promotion, you may be charged a one-time non-refundable Go Live set up fee of one hundred dollars ($100) for your account.
5.4 TEXT MESSAGING FEE
(a) Monthly Credit Allocation. At the beginning of each monthly billing period, you will be credited for a certain number of messages (“Monthly Credit Amount”) depending upon the monthly subscription package you have chosen as specified in CodeBroker’s then current Fee Schedule. Message credits do not rollover from one month to the next. You will not be refunded fees for and any unused Monthly Credit Amount and any unused Monthly Credit Amount will be forfeited and may not be rolled over to any other month. If you exceed your Monthly Credit Amount in the monthly package you have chosen, your promotion(s) will be stopped. Every coupon and alert (collectively, the “Coupon”) that is sent to an End User and every subscription request received from an End User will be charged against your Monthly Credit Amount.
(b) Exceeding Monthly Credit Allocation. In the case where your promotion(s) has been stopped because you have used up your Monthly Credit Amount and an End User submits a request for a Coupon or makes a subscription request for your promotion(s), such End User will receive a response stating that your promotion(s) is no longer active, and you will be charged a fee of ten cents ($0.10) as a Paused Promotion Notification Fee for each incoming Coupon or subscription request. Such Paused Promotion fees will be charged to your credit card at the earlier of i) the time they reach a total of fifty dollars ($50) or ii) at the end of the billing cycle.
(c) Monthly Credit Allocation for Suspended Promotions. In the case where (i) your promotion(s) has been stopped for any reason, (ii) your Monthly Credit Amount has not been used up and (iii) an End User submits a request for a Coupon or makes a subscription request for your promotion(s), such End User will receive a response stating that your promotion(s) is no longer active, and your Monthly Credit Amount will be reduced by the number of incoming Coupon and subscription requests as calculated in this paragraph (c), below.
For Coupon and subscription requests received after the suspension of a program under this paragraph (c), your Monthly Credit Amount will be reduced by the number of messages equal to such incoming Coupon requests plus such incoming subscription requests received after suspension. At the time your Monthly Credit Amount has been used up, your fee for each incoming Coupon or subscription request will be calculated in accordance with paragraph (b) of this Section
5.5 PROMOTION REVIEW BY CODEBROKER
CodeBroker will review each promotion you submit to ensure that it complies with then current carrier rules and terms of service. In addition, CodeBroker will review a promotion each time you make a modification thereto to ensure that such modified promotion complies with then current carrier rules and terms of service (a “Review”). The Personal Service plan allows for up to three (3) Reviews per month, the Silver Service plan allows for up to six (6) Reviews per month, the Gold Service plan allows for up to nine (9) Reviews per month, and the Platinum and Platinum+ Service plans allows for up to fifteen (15) Reviews per month. The Group 2 Plan A Service plan allows for up to ten (10) Reviews per month, The Group 2 Plan B Service plan allows for up to twenty (20) Reviews per month, the Group 2 Plan C Service plan allows for up to thirty (30) Reviews per month, the Group 2 Plan D Service plan allows for up to sixty (60) Reviews per month. Each review you request will be subtracted from your monthly review allowance. If you do not have any promotion reviews remaining, you will be charged an Additional Promotion Review fee of fifty dollars ($50) for that promotion Review. CodeBroker shall not be responsible to review your promotions for content, correctness, or any other purposes whatsoever.
5.6 UPGRADES AND DOWNGRADES
You will have the ability to upgrade the Service at any time during the monthly term. Such upgrade will take effect immediately (the anniversary date of your service will not change). For any upgrade in additional message units, the credit card that you provided as part of your Registration Data will either (i) automatically be refunded a pro-rata amount for the lower level of Service (“Refunded Amount”) and charged a pro-rata amount for the higher level Service (“Higher Services Amount”) or (ii) be charged an amount which equals the difference between the Higher Services Amount and the Refunded Amount. The Refunded Amount and Higher Services Amount will both be based on the number of days remaining in the monthly term. Any downgrades in service levels must be requested in writing or by phone at least 3 business days prior to the monthly renewal date of your service and will go into effect on the first day of the next monthly service period.
5.7 CANCELLATION AND TERMINATION
If you cancel the Service before the end of the monthly term, your cancellation will take effect immediately, but you will have access to portions of the Service for the remainder of the month in which you cancelled the services. Your shortcode keyword(s) will immediately become unregistered and will cease working if/when End Users attempt to access them. After cancellation and when the monthly term ends, you will no longer have access to your CodeBroker Mobile Promotion account and all information contained therein may be deleted by CodeBroker. CodeBroker accepts no liability for such deleted information or content.Upon termination or expiration of your Services or a promotion (including by canceling by either party), you shall immediately cease the use of the applicable shortcode keyword name including without limitation the displaying of any signage, marketing or other advertisements relating to such shortcode and/or the associated keyword(s).You will still be liable for any End User requests to your shortcode keyword combination including shortcode keyword, Help, Stop, and Subscribe that occur within the sixty (60) day period following the latter of a) the termination or cancellation of your Services, or b) the time at which you cease the use of your shortcode keyword combination including without limitation the displaying of any signage, marketing or other advertisements relating to such shortcode and/or the associated keyword(s). You will be charged for these message requests at the rate of eight cents ($0.08) per message sent by CodeBroker. If your credit card transaction is declined for any reason, the Service may be cancelled and all the information contained within deleted permanently. CodeBroker accepts no liability for information that is deleted due to a declined credit card transaction. In addition, CodeBroker may immediately terminate the Service for your failure to abide by the Terms. Such termination of the Service may result in the deactivation or deletion of your CodeBroker Mobile Promotion account, and the forfeiture and relinquishment of all files and data contained in your account.
6.1 INITIAL TERM
The initial term of the Services is specified during at the time you sign up for the Services (the “Initial Term”).
6.2 RENEWAL TERMS
At the end of the Initial Term and each renewal term, the Services shall automatically renew for successive one month periods (each a “Renewal Term”, together with the Initial Term, the “Term”). Either party may elect not to renew the Services by providing the other party written notice of such non-renewal at least 5 business days prior to the end of the then current term.
8. ACCOUNT OWNERSHIP AND SECURITY; RECLAIMING OF KEYWORDS
You are responsible for maintaining the security of your account and web site, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the shortcode/keyword combination, including those of users to whom you give access to your account (“Account Users”). You agree to immediately notify CodeBroker of any unauthorized uses of the account or any other breaches of security. CodeBroker cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will CodeBroker be liable, in any way, for any acts or omissions, of you or any Account User, to whom you give access to your Codebroker account, including any damages of any kind incurred as a result of such acts or omissions.You will receive a password and account designation upon completing the Service’s registration process. You are responsible for maintaining the confidentiality of the password and account and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify CodeBroker of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. CodeBroker cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.CodeBroker and/or its vendors will retain ownership of all shortcodes and keywords used in conjunction with the shortcodes under this Agreement. If in its sole discretion, CodeBroker determines that you are not sufficiently utilizing the shortcodes (and keywords used in conjunction with the shortcodes) granted to you for use under this Agreement then CodeBroker may reclaim such keyword and issue you a different keyword upon 30 days prior notice.
9. ACCOUNT USERS
Please note that all Account Users must have CodeBroker ID’s and are subject to the CodeBroker Terms of Service. CodeBroker expressly assumes no liability for any losses incurred due to Account User activities.
10. INTELLECTUAL PROPERTY, CONTENT AND CONDUCT RULES AND OBLIGATIONS
The entire content included in this site, including but not limited to text, graphics or code is copyrighted as a collective work under the United States and other copyright laws, and is the property of CodeBroker. The collective work includes works that are licensed to CodeBroker. Permission is granted to electronically copy and print hard copy portions of this site for the sole purpose of placing an order with CodeBroker or purchasing CodeBroker products. You may display and, subject to any expressly stated restrictions or limitations relating to specific material, download or print portions of the material from the different areas of the site solely for your own non-commercial use, or to place an order with CodeBroker or to purchase CodeBroker products or services. Any other use, including but not limited to the reproduction, distribution, display or transmission of the content of this site is strictly prohibited, unless authorized by CodeBroker. You further agree not to change or delete any proprietary notices from materials downloaded from the site.
All trademarks, service marks and trade names of CodeBroker used in the site are trademarks or registered trademarks of CodeBroker.
10.3 CONTENT RULES AND OBLIGATIONS
You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials (“Content”), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Codebroker, are entirely responsible for all Content that you upload, post, transmit or otherwise make available via the Service. You agree that you will provide to CodeBroker at least three (3) business days’ prior written notice of your intent to use a shortcode on television or in any national advertising campaign (including without limitation broadcasting or displaying such shortcode in any television advertisement, national newspaper, or regional or national radio program).You agree that you will not: (a) upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, coercive, libelous, invasive of another’s privacy, hateful, adult-oriented, or racially, ethnically or otherwise objectionable, including Content that is false, misleading, or inaccurate; (b) harm minors in any way; (c) impersonate any person or entity, including, but not limited to, a CodeBroker official, forum leader, or falsely state or otherwise misrepresent your affiliation with a person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service; (e) upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (f) upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party (click on CodeBroker’s current Copyright Policy to review); (g) upload, post, or transmit unsolicited commercial text messages or “spam”. This includes unethical marketing, advertising, or any other practice that is in any way connected with “spam”, such as (i) sending mass text messages to recipients who haven’t requested text messages from you or with a fake return address, or (ii) promoting a site with inappropriate links, titles, descriptions; (h) upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (i) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (j) intentionally or unintentionally violate any wireless industry rules, applicable local, state, national or international law, including, but not limited to, local rules regarding online conduct and acceptable Content, applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law; (k) “stalk” or otherwise harass another; (l) promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, but is not limited to, providing instructions on how to assemble bombs, grenades and other weapons, and creating “Crush” sites; (m) offer for sale or sell any item, good or service that (i) violates any applicable federal, state, or local law or regulation, (ii) you do not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorizations, or (iii) CodeBroker determines, in its sole discretion, is inappropriate for sale through the Service provided by CodeBroker; (n) use the Services to disparage CodeBroker or its vendors or the carriers in any way; or (o) without CodeBroker explicit approval, use the Service to transmit any materials that are sexually explicit, or relate to tobacco, alcohol, or gambling.
11. CONTENT SUBMITTED TO THE SERVICE
11.1 OWNERSHIP & LICENSE
CodeBroker does not claim ownership of the Content you incorporate into the Service. By submitting Content to CodeBroker for inclusion in the Service, you grant CodeBroker the world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your business using CodeBroker’s mobile promotion service. This license exists only for as long as you continue to be a CodeBroker customer and shall be terminated at the time your Service is terminated. You acknowledge that CodeBroker and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any Content that is available via the Service. Without limiting the foregoing, CodeBroker and its designees shall have the right to remove any Content that violates the Terms or is otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
11.2 ANTI-SPAM POLICIES
We consider any unwanted SMS message as spam. We do NOT allow the use of any 3rd party lists. We only send messages to subscribers who have opt-in for a campaign. You represent and warranty that the owners of the mobile phone numbers you provide to CodeBroker have consented or otherwise opt-in to the receipt of such messages. You agree to adhere to the Consumer Best Practices Guidelines per the Mobile Marketing Association.
11.3 PROHIBITED CONTENT
- Sexual or pornographic content is prohibited
- Material that exploits children under the age of 18 is prohibited
- Material that is not appropriate for children under the age of 18 is prohibited
- Promotions of products or services that are unlawful and/or harmful are prohibited
- Material that promotes violence
- Hatred of any kind
- Profanity is prohibited
- Illegal or illicit drugs
- Tobacco products
- Alcoholic beverages
- Firearms or ammo
- Gambling or betting of any sorts
12. TELEPHONE CONSUMER PROTECTION ACT (“TCPA”).
You shall retain sole ownership of all of the information, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials on its website landing pages for mobile marketing campaigns, or the information, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials created exclusively by you, but hosted by CodeBroker (“Web Pages”), or any calls to action in any media or format including, but not limited to audio, video, print, text, or web-based calls to action which request an action from a Customer (“Calls To Action”). CodeBroker uses commercially reasonable efforts to maintain and verify that the Services are conducted lawfully with respect to all state and Federal laws. You are solely responsible for your compliance with, and will defend, indemnify and hold harmless CodeBroker from and against any claims arising from any actual or alleged violation by either CodeBroker (in the delivery of the Services to you) or you of the TCPA. You must review your Content and any Calls to Action for compliance with the TCPA prior to submitting the Content and any Calls to Action to CodeBroker or requesting that CodeBroker add End Users to marketing lists. Laws and regulations change frequently and their application can vary widely based upon the specific facts and circumstances involved, and you acknowledge your current and continuing responsibility to consult with your own professional compliance advisors concerning both changes to and specific compliance with the TCPA. Your obligations under this paragraph are ongoing and shall survive the termination of this Agreement.
You agree to defend, indemnify and hold CodeBroker, and its subsidiaries, vendors, affiliates, officers, agents, co-branders or other partners, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your Content, your use of the Service, your connection to the Service, your violation of the Terms, your use of any shortcode keyword name (including without limitation the displaying of any signage or advertisements relating thereto) after the termination or expiration of your Services or a promotion, or your violation of any rights of another.
14. RESALE, MODIFICATION OF SERVICE
You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express permission by CodeBroker. You acknowledge that CodeBroker may establish general practices and limits concerning use of the Service. CodeBroker reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that CodeBroker shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
15. RESERVATION OF RIGHTS
You agree that CodeBroker, in its sole discretion, expressly reserves the right to suspend or terminate your password, CodeBroker account, use of the Service or use of any other CodeBroker service, and remove and discard any Content within the Service, for any reason, including, without limitation, if CodeBroker believes that you have violated or acted inconsistently with the letter or spirit of the Terms. CodeBroker may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Term may be effected without prior notice, and acknowledge and agree that CodeBroker may immediately deactivate or delete your CodeBroker account and all related information and files in your CodeBroker account and/or bar any further access to such files or the Service. Further, you agree that CodeBroker shall not be liable to you or any third-party for any termination of your access to the Service.
16. CODEBROKER PROPRIETARY RIGHTS
You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. You acknowledge that CodeBroker owns all right, title and interest, including without limitation all Intellectual Property Rights (as defined below), in and to the Service and the Software, and that You will not acquire any right, title, or interest in or to the Service or Software except as expressly set forth in this Agreement. Except as expressly authorized by CodeBroker, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Service and Software, in whole or in part. CodeBroker grants you a personal, non-transferable and non-exclusive right and license to use the Service and object code of its Software on a single computer; provided that you do not (and do not allow any third party to) a) copy, modify, adapt, translate, create a derivative work of, decompile, reverse engineer, reverse assemble or otherwise attempt to discover any source code, or create or attempt to create a substitute or similar service or product through use of or access to the Service or Software or proprietary information related thereto. b) sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Service or Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by CodeBroker for use in accessing the Service. You will not remove, obscure, or alter CodeBroker’s copyright notice, or other proprietary rights notices affixed to or contained within the Service, or documentation. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
17. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CODEBROKER EXPRESSLY DISCLAIMS 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.(b) CODEBROKER WILL MAKE REASONABLE EFFORTS TO MAINTAIN THE SERVICE, HOWEVER, CODEBROKER IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE, OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION, RESTRICTION OR LOSS OF ACCESS, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO YOUR SHARING OF ACCESS TO THE SERVICE, OR OTHER INTERACTION WITH THE SERVICE. YOU ARE RESPONSIBLE FOR MAINTAINING AND BACKING-UP YOUR DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICE. CODEBROKER DOES NOT WARRANT THAT (i) THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
18. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT CODEBROKER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CODEBROKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL CODEBROKER’S AGGREGATE, CUMULATIVE MONETARY LIABILITY FOR ANY DAMAGES ARISING FROM OR RELATED TO THE SERVICES, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY AND NEGLIGENCE), EXCEED THE FEES ACTUALLY PAID BY YOU TO CODEBROKER FOR THE APPLICABLE SERVICES THAT ARE RELATED TO THE CLAIM. IN ADDITION, CODEBROKER SHALL HAVE NO LIABILITY OF ANY KIND FOR ANY OF YOUR CONTENT (SUCH AS BRAND NAMES OR URLS INCLUDED IN TEXT MESSAGES) OR YOUR DATA.
19. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 16 AND 17 MAY NOT APPLY TO YOU.
Notices to you may be made via either email or regular mail. The Service may also provide notices of changes to the Terms or other matters by displaying notices or links to notices to you generally on the Service.
21. ARBITRATION, CHOICE OF LAW AND FORUM; INJUNCTIVE RELIEF
This Agreement and your relationship with CodeBroker shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the Commonwealth of Massachusetts and shall be considered to have been made and accepted in the Commonwealth of Massachusetts, without regard to its conflict of law provisions. Excluding any injunctive relief rights or claims asserted by CodeBroker against you, all other disputes arising under this Agreement will be resolved by binding arbitration under the American Arbitration Association’s Commercial Rules with one arbitrator and the place of the arbitration in Middlesex, Massachusetts. Each party shall bear their own costs and fees and the arbitrator shall not have the authority to award attorney’s fees. For all disputes not otherwise subject to arbitration, you and CodeBroker agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Middlesex, Massachusetts and that venue for any action shall lie in the courts of Middlesex, Massachusetts. The failure of CodeBroker to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. Please report any violations of the Terms to us at:
464 Common Street, Suite 204
Belmont, MA 02478
You acknowledge that your use of the services being provided hereunder in a manner inconsistent with the provisions of this Terms or the failure by you to comply with any of the terms and conditions of these Terms may cause CodeBroker irreparable harm and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, you agree that, in addition to any other remedy to which CodeBroker may be entitled hereunder, at law or equity, CodeBroker shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law without a requirement to post bond.
22. PROMOTION REVIEW FOR LAUNCH
You acknowledge that CodeBroker must review all promotions and Content pertaining thereto prior to the launch of such promotion. CodeBroker will not activate any promotion until CodeBroker has fully reviewed and approved a promotion. CodeBroker is obligated by its vendors and the applicable carriers to perform such promotion reviews. CodeBroker will review the promotions to determine whether they adhere to these Terms and any obligations and requirements of its vendors and carriers. You acknowledge that promotion approvals by carriers are subject to change. CodeBroker cannot control approval changes by carriers. If an approval of a specific promotion changes or is removed, CodeBroker will notify you in writing and you will be obligated to institute such changes into your promotion, including if necessary the deactivation of a promotion.
23. INTEGRATION AND SEVERABILITY
The Terms (together with any written agreement between you and CodeBroker and/or the terms and conditions on any written invoice sent to you by CodeBroker) constitutes the entire agreement between you and CodeBroker and governs your use of the Service, superseding any prior agreements between you and CodeBroker (including, but not limited to, any prior versions of the Terms). You also may be subject to additional terms and conditions that may apply when you use affiliate or other CodeBroker partner services, third-party content or third-party software. If any provision of the Terms or incorporated documents are found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms against CodeBroker must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in the Terms are for convenience only and have no legal or contractual effect.
Effective Date: October 23, 2015