The following terms and conditions (these "Terms of Service" and this "Agreement") govern all use of http://www.notifii.com website and all content, services, features, activities and products available at or through the Website, including but not limited to the package information management of and communication services and together with all other content, services, features, activities and products available through the Website (the "Services"). The term "you" or "your" includes the entity you represent any of your subsidiaries, affiliates and employees. The Services are owned and operated by Notifii, LLC (also referred to as "we", "our" or "us"). Please read these Terms of Service carefully before using the Services.
All access to and use of the Services available through the Site is subject to the terms of this Agreement. If You wish to access and use the Services and the Site, You may do so only in compliance with the terms of this Agreement. If You have placed or later place an order (whether through the Site, by email, phone or otherwise) with Notifii (Your "Order") seeking to access and use certain of the Services requiring registration, Notifii is willing to accept Your Order and provide You with access to and use of those Services only if You comply with the terms and conditions of this Agreement.
Without limiting the foregoing, the Services are not available to individuals under the age of 18 or who do not meet any of the other qualifications included in this agreement.
PLEASE CAREFULLY READ THIS AGREEMENT. BY SUBMITTING AN ORDER OR BY ACCESSING OR USING THE SITE OR SERVICES, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, NOTIFII IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE SITE OR SERVICES AND YOU MUST NOT ACCESS OR USE THE SITE OR SERVICES. IF YOU ACCESS OR USE THE SITE OR SERVICES, YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT AND AGREE TO BE BOUND BY THIS AGREEMENT.
This Agreement is entered into as of the earlier of the date You first submit an Order relating to the Services or first access or use the Services or a Site (the "Effective Date"). This Agreement consists of the following terms and conditions and each Order submitted by You and accepted by Notifii, each of which is incorporated in and made a part of this Agreement. Unless otherwise amended as provided herein, this Agreement will exclusively govern Your access to and use of the Services and the Sites and is the complete and exclusive understanding and agreement between the parties, and supersedes any oral or written proposal, agreement or other communication between the parties, regarding Your access to and use of the Services and the Sites. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Notifii reserves the right, at any time, to change or modify the Site, Services or this Agreement, by making such change or modification available on the Site or by providing other notice to You. Any such change or modification will be effective 30 days after posting on the Site or such other notice. As applicable, You will be deemed to have agreed to such change or modification through Your continued use of the Site or Services.
1. Definitions. Terms used in this Agreement will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in the United States.
2. Orders and Confirmation. All Orders placed by You will be governed by the terms of this Agreement. Notifii will confirm Your Order either through the Site at the time you submit Your Order or by providing You with access to the Services (each, a "Confirmation"). If the terms of any Order conflict with the terms of any Confirmation of that Order, the terms of the Confirmation will govern and control with only with respect to such Services. This Agreement will govern and control the terms of each Order and Confirmation under this Agreement. By accessing or using any of the Services, You agree to be bound by the terms of this Agreement and each applicable Order and Confirmation with respect to those Services.
3. Term. This Agreement will be effective upon the Effective Date and will continue to be effective during the period in which the Services are being provided to You (the "Term"). Unless terminated as set forth herein, the term of this Agreement will continue until You are no longer receiving, and Notifii is no longer providing you with, the Services. You understand that Notifii may from time to time, in its sole discretion, update, change, revise, suspend or discontinue the Services (or any portion thereof) with or without notice.
4. Subscription. Subject to this Agreement, during the term of this Agreement Notifii will provide You with a limited subscription to access and use the Services subject to Confirmations under this Agreement, solely for Your own use in connection with your own business purposes. Your rights to access and use the Services are personal, non-exclusive, non-transferable and non-sublicensable.
5. Access to the Services. Upon Confirmation of Your Order by Notifii, the rights granted to You under this Agreement entitle You to access the Services through accounts (each, an "Account"). You will be provided with a user identification and password applicable to each Account You have purchased (each such user identification and password, an "Account ID"). Each Account ID is personal in nature and may be used only by You or, if You are an organization, by designated employees within Your organization or contractors who are contractually required to comply with the terms of this Agreement (such individual, as applicable, the "User" of the Account). You are solely responsible for all use of the Services by each User and for compliance by each User with the applicable terms of this Agreement. You will ensure the security and confidentiality of each Account ID and will notify Notifii immediately if any Account ID is lost, stolen or otherwise compromised. You acknowledge that You are fully responsible for all costs, fees, liabilities or damages incurred through use of each Account ID (whether lawful or unlawful) and that any Services ordered or transactions completed through any Account or under any Account ID will be deemed to have been lawfully completed by You. In no event will Notifii be liable for the foregoing obligations or the failure by You to fulfill such obligations. You will be solely responsible, at Your own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for You and each User to connect to, access, and use the Services and the Sites. You shall protect your username and password and are solely responsible for activities that occur under or through your account, including activities initiated by third parties, whether or not such activities are authorized by You. If You allow a third party to access the Services on your behalf, you shall ensure that such third party is bound by, and abides by, the terms of this Agreement. You agree to notify Notifii immediately of any unauthorized use of Your account or any other breach of security relating to Your account or Your use of the Services.
7. Software. Any software or code available on or for download through the Site or Services ("Software") is protected by intellectual property rights ("IPR", as defined below). To the extent necessary for the provision of the Services, unless otherwise expressly stated in a license or other agreement separate from this Agreement that You may have entered into (or may enter into) with Notifii relating to any Software (each such license or other agreement, a "Software License Agreement"), Notifii grants you a limited, non-exclusive right and license to download, install and execute the Software during the Term in accordance with the instructions provided on the Site and solely for your own business purposes in connection with Your access to and use of the Services. Except as expressly set forth in the foregoing sentence (or any applicable Software License Agreement), You are granted no licenses or rights, whether by implication, estoppel, or otherwise, in or to any Software or any IPR therein or related thereto, and You may not modify, reproduce, perform, display, create derivative works from, republish, post, transmit, participate in the transfer or sale of, distribute, or in any way exploit any portion of the Software without the prior written permission of Notifii. Except as set forth in this Agreement, any Software License Agreement will control in the event of a conflict between the terms of this Agreement and that Software License Agreement.
8. Restrictions. You acknowledge that the Services, Sites, Software, and the databases, software, hardware and other technology used by or on behalf of Notifii to provide the Services and operate the Sites (the "Technology") and their structure, organization, and underlying data, information and source code constitute valuable trade secrets of Notifii. You will not, and will not permit any third party to: (1) access or use the Services or the Sites, in whole or in part, except as expressly provided in this Agreement; (2) use the Site, Services or any Software to harvest or collect personal information, email addresses or other contact information of third parties other than your Users; (3) use the Site, Services or any Software in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site or Services; (4) use automated scripts to collect information from or otherwise interact with the Site, Services or any Software for any unauthorized purposes; (5) use the Site, Services or any Software to intimidate or harass any other people or entities; alter, modify, reproduce, create derivative works of the Services, Technology, or any Software; (6) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Your rights to access or use the Services or any Software, including, without limitation, providing outsourcing, service bureau, hosting, application service provider or on-line services to third parties, or otherwise make the Services or any Software, or access thereto, available to any third party; (7) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Site, Services, Technology or any Software; (8) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Sites, Services, Technology, or any Software; (9) interference with others' usage of the Services or any system or network, including mail bombing, flooding, broadcast or denial of service attacks; or (10) interfere in any manner with the operation or hosting of the Sites, Services, Technology or any Software, or attempt to gain unauthorized access to the Sites, Services, Technology or any Software. You will not allow any access to or use of the Services by anyone other than Your authorized Users, and any such use will be consistent with the terms, conditions and restrictions set forth in this Agreement. You will be responsible for the unauthorized use of Site and/or Services by Your Users.
9. Fees and Payment. You agree to pay Notifii all fees set forth in each Order or Confirmation and any fees otherwise specified on the Site or through the Services ("Fees"). All Fees will be billed as indicated in each Order or Confirmation. If the applicable Order or Confirmation does not specify any applicable billing terms, the initial payment of Fees specified under that Order or Confirmation for each period in Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. If You have specified credit card or direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, You grant Notifii the right to charge the credit card or debit the bank account provided to Notifii for all Fees incurred under this Agreement. You acknowledge that the amount billed for each renewal period may vary due to promotional offers, changes in your Services, and changes in applicable taxes, and you authorize us to bill You the corresponding amounts. Notifii reserves the right to deactivate your access to the Services for failure to pay applicable fees as described in this Agreement. Unless otherwise stated, all fees are stated in U.S. Dollars. All Fees will be non-refundable once paid to Notifii (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of 1.5% per month or the maximum amount permitted under applicable law. Notifii may change any portion of the Fees by posting the changes to the Sites or otherwise notifying You through the Services of the change, such changes to take effect at the beginning of the next period of this Agreement. If Notifii requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses. You will be responsible for all use, sales, and other taxes imposed on the Services provided under this Agreement.
10. Termination and Suspension. Notifii may terminate or suspend access to the Services or this Agreement immediately, without prior notice or liability, if you breach this Agreement or for any other reason, in Notifii's sole discretion. Upon termination or expiration of this Agreement for any reason: (a) all rights and subscriptions granted to You under this Agreement will terminate; (b) You will immediately cease all use of and access to the Sites and Services; (c) all Fees then owed by You will become immediately due and payable; (d) You will immediately either return to Notifii or, at Notifii's discretion, destroy the Notifii Content, Account IDs, Notifii Confidential Information, and other information related to this Agreement in Your possession or control; and (e) Notifii may delete any of Your Content held by Notifii within 10 days after the date of termination. Sections 6 (Applicable Policies), 8 (Restrictions), 9 (Fees and Payment), 10 (Termination and Suspension), 11 (Ownership), 13 (Warranties and Disclaimer), 14.2 (Indemnity: By You), 15 (Limitation on Liability), 16 (Data Privacy), 17 (Confidentiality), 20 (Governing Law; Disputes), 21 (General) will survive any expiration or termination of this Agreement.
11. Ownership. Notifii retains all right, title and interest, including, without limitation, all IPR (as defined below), in and to the Sites, Services, Technology, Notifii Content (as defined below), any Software, and any additions, improvements, updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to You to use them apart from Your right to access the Services under this Agreement. The Notifii name, logo and the product and service names associated with the Services are trademarks of Notifii (or its third party providers), and no right or license is granted to You to use them. For purposes of this Agreement, "IPR" means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights.
12.1. Notifii Content. You may be provided with access to certain data, information and other content through the Site and Services ("Notifii Content"). Unless otherwise noted on the Site, as between You and Notifii, all Notifii Content is owned by Notifii. Subject to this Agreement, each User may: (a) access the Notifii Content (without modification) solely for Your own business purposes in connection with Your use of the Services; and (b) distribute the Notifii Content (without modification) as incorporated into emails generated and sent by You through the Services. Except as expressly provided in this Agreement, You will not, and will not permit any User to: (i) alter, modify, reproduce, or create derivative works of the Notifii Content; (ii) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer the Notifii Content, including, without limitation, providing outsourcing, service bureau, commercial hosting, application service provider or on-line services to third parties; or (iii) alter, obscure or remove any copyright, trademark or any other notices that are provided on or in connection with the Notifii Content. Certain of the Notifii Content includes or is based on data, information and content from independent third party providers ("Third Party Content"). Notifii uses commercially reasonable measures to ensure that the Third Party Content is reliable, but Notifii has no independent basis to verify or contradict the accuracy or completeness of the Third Party Content and will not be responsible for any erroneous Third Party Content provided through the Services.
13. Warranties and Disclaimer.
13.1. By Notifii. Except in the case of any Services provided during a Trial Subscription, Notifii represents and warrants to You that Notifii will use commercially reasonable efforts to operate the Services in accordance with this Agreement. Notifii's sole obligation and Your sole and exclusive remedy in the event of any failure by Notifii to comply with the foregoing sentence will be for Notifii to, at Notifii's option, re-perform the affected Services or refund to You the prorated fees You have actually paid for the affected Services during the period in which the failure occurred. Notwithstanding the foregoing, You remain solely and entirely responsible for Your compliance with, and will defend, indemnify and hold harmless Notifii from and against any claims arising from any actual or alleged violation by You of any international, federal, state or local treaties, laws, rules, regulations or ordinances regarding Your use of or access to the Site or Services or regarding your business, products or services, including, without limitation, regarding data and data privacy and the transmission of electronic messages, whether solicited or unsolicited.
13.2. By You. You hereby represent, warrant, and covenant for the benefit of Notifii that: (1) You have the legal right and authority to enter into this Agreement, and, if You are accepting this Agreement on behalf of a company or other entity, to bind the company or other entity to the terms of this Agreement; (2) You have the legal right and authority to perform Your obligations under this Agreement and to grant the rights and licenses described in this Agreement and in any applicable additional agreement You enter into in connection with any of the Services; and (3) Your Content, and any other data, information or content You provide to Notifii in connection with this Agreement and Your access to the Site and use of the Services, is correct and current.
13.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 13, THE SITES AND SERVICES (AND ALL NOTIFII CONTENT PROVIDED THROUGH THE SITES AND SERVICES) ARE PROVIDED TO YOU STRICTLY "AS IS" AND "AS AVAILABLE" AND NOTIFII AND ITS PROVIDERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT. NEITHER NOTIFII (NOR ANY OF ITS PARENT, SUBSIDIARIES, AFFILIATES, SUPPLIERS OR LICENSORS) WARRANTS OR REPRESENTS THAT THE SELECTED SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. YOU ACKNOWLEDGE THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CUSTOMER'S PRIVACY, DATA, CONFIDENTIAL INFORMATION, AND PROPERTY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NOTIFII, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 13.
14. Indemnity. You hereby indemnify, defend, and hold harmless Notifii and its affiliates, employees, agents, contractors, assigns, licensees, and successors in interest ("Indemnified Parties") from any and all claims, losses, liabilities, damages, fees, expenses, and costs (including attorneys' fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from Your accessing or using the Site, Services, Software, Your Content, Notifii Content, any email or other communication generated or sent through the Services, or any breach of this Agreement. Notifii will provide You with notice of any such claim or allegation, and Notifii will have the right to participate in the defense of any such claim at its expense.
15. Limitation on Liability. IN NO EVENT WILL NOTIFII BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE USE OF THE SITES, SERVICES (OR ANY NOTIFII CONTENT PROVIDED THROUGH THE SITES OR SERVICES), EVEN IF NOTIFII HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES. NOTIFII'S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO NOTIFII HEREUNDER IN THE 1 MONTH PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY (OR, IF NO SUCH FEES HAVE BEEN PAID, $10). YOU AGREE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT NOTIFII WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, NOTIFII'S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
18. Claims of Infringement. Just as Notifii requires users of the Site to respect the copyrights and other intellectual property rights of Notifii, its affiliates, and other third parties, Notifii respects the copyrights and other intellectual property rights of Users of the Site and other third parties. If You believe in good faith that Your copyrighted work has been reproduced on the Site without authorization in a way that constitutes copyright infringement, You may notify us via email to firstname.lastname@example.org or via mail to Notifii LLC, 1420 East Roseville Pkwy, Ste 140-243, Roseville, CA 95661.
19. Linked Sites. The Site and communications sent through the Services may contain links to third-party sites that are not under the control of Notifii, and Notifii is not responsible for any content on any linked site. If you access a third-party site from the Site or from a communication sent through the Services, then you do so at your own risk. Notifii provides links only as a convenience, and the inclusion of the link does not imply that Notifii endorses or accepts any responsibility for the content on those third-party sites. Notifii welcomes links to the Site. You may establish a link to this Site, provided that the link does not state or imply any sponsorship or endorsement of Your site by Notifii or any group or individual affiliated with Notifii. You may not use on your site any Content or Marks appearing on the Site in establishing the link. You may not frame or otherwise incorporate into another site the Content or other materials on the Site without prior written consent.
20. Governing Law; Disputes. This Agreement shall be governed by the laws of the State of California, USA, excluding its conflicts of law rules. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Except for disputes involving the assertion of Notifii's intellectual property rights and claims for injunctive relief, any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by binding arbitration in Sacramento County, California, using the English language, in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. Such arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with the JAMS Arbitration Rules and Procedures. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Sacramento County, California. Use of the Selected Services is not authorized in any jurisdiction that does not give effect to all provisions of this Agreement, including without limitation, this Section.
21. General. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys' fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations of You hereunder may be assigned or transferred by You (in whole or in part and including by sale, merger or operation of law) without the prior written approval of Notifii. Any assignment in violation of the foregoing will be null and void. Notifii may assign this Agreement to any party that assumes Notifii's obligations hereunder. The parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. Notifii may reference You as a user of the Services and use Your name and logo, as applicable, in listings of users of the Services appearing on the Notifii web site and for other marketing and promotional purposes relating to the Services.