PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR ACCESS AND USE OF THE CALL COWBOY PLATFORM. THESE TERMS REQUIRE YOU TO ARBITRATE ANY DISPUTES YOU HAVE WITH US AND YOU WAIVE THE ABILITY TO BRING CLAIMS AGAINST US IN A CLASS ACTION FORMAT.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT CALL COWBOY SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL AND/OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CALL COWBOY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), TO THE FULLEST EXTENT PERMISSIBLE BY LAW FOR: (A) THE USE OR THE INABILITY TO USE THE SITE, SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY INQUIRE ABOUT AND/OR APPLY FOR THROUGH SAME; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION AND/OR SERVICES OBTAINED FROM, OR TRANSACTIONS ENTERED INTO THROUGH, THE SITE AND/OR SITE OFFERINGS; (C) THE FAILURE TO QUALIFY FOR ANY OF THE CALL COWBOY SERVICES; (D) THE UNAUTHORIZED ACCESS OR USE OF YOUR REGISTRATION DATA; AND (E) ANY OTHER MATTER RELATING TO THE SITE, SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY INQUIRE ABOUT AND/OR APPLY FOR THROUGH SAME. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION, IN THE AGGREGATE INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND ANY AND ALL OTHER TORTS. YOU HEREBY RELEASE CALL COWBOY FROM ANY AND ALL OBLIGATIONS, LIABILITIES AND CLAIMS IN EXCESS OF THE LIMITATION STATED HEREIN. IF APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATION, THE MAXIMUM LIABILITY OF CALL COWBOY TO YOU UNDER ANY AND ALL CIRCUMSTANCES WILL BE FIVE HUNDRED DOLLARS ($500.00).
THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND CALL COWBOY. THE SITE, SITE OFFERINGS AND/OR ANY OTHER PRODUCTS AND/OR SERVICES THAT YOU MAY INQUIRE ABOUT AND/OR APPLY FOR THROUGH SAME WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
These Terms of Service (the 'Terms' ) govern the individual, company and/or organizational (collectively, 'you' , 'your' or 'Customer' ) purchase and use of any of Call Cowboy services, including your use of the various text/SMS/MMS/Voicemail message marketing services (collectively, the 'Services' ) available through our website ( www.callcowboy.com ) (including both mobile and online versions) (the 'Site' ), and the software, technical and communications platform(s) available on and through the Site (collectively, the 'Platform' ). The Platform and Services are made available by Call Cowboy, LLC., d/b/a Call Cowboy ( 'Call Cowboy' , 'we' , 'our' or 'us' ).
Description of Call Cowboy
1. Terms Applicable to the Purchase of Subscriptions to the Platform and Services
2. Opening and Terminating Accounts
3. Keywords, Content, Ownership and Limited License
4. Platform, Services and Content Use Restrictions
5. Customer Content
You (on behalf of yourself and your Authorized Users) hereby grant Call Cowboy a limited, non-exclusive, non-transferable, worldwide, royalty-free license, during the Subscription Term to: (i) use and distribute any and all messages, data, text, video, photos, audio and all other materials and information (including personal information of your users) which is submitted to us or the Platform by you (or on your behalf), including, but not limited to, your trademarks, trade names and service marks (collectively, 'Customer Content' ) as necessary for our operation of Platform and provision of the Services; (ii) sublicense the foregoing rights to third parties; and (iii) sublicense the foregoing rights to our subcontractors as necessary to provide the Platform and Services. In addition to and without limitation to terms under the use restrictions set forth in Section 4 above, Call Cowboy prohibits any use of the Platform in connection with any of the following types of content, products, and services:
6. Consents and Legal Compliance for Messaging
The following terms and information constitute an introduction to the concept of spam and the general contours of a responsible, permission-based text marketing campaign. In addition, our Anti-Spam Policy applies to your use of the Platform and is incorporated into these Terms by this reference. This general information is not an exclusive source for applicable laws, guidelines, and compliance responsibilities pertaining to your use of the Platform. This Section is not intended to nor shall it be deemed to constitute legal advice. You should consult a lawyer for legal advice on your activities, practices, and your use of the Call Cowboy Services. The information herein is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your use of our Services prior to using the Platform.
Call Cowboy maintains a no-tolerance policy toward spam. Although Call Cowboy does not assume the duty or obligation to monitor messages, we reserve the right, in our sole and absolute discretion, to monitor any and all messages created or sent by you or any third party at any time without prior notice to ensure that they conform to the guidelines and policies pertaining to our Site and Services.
You agree that any individuals requesting 'Do-Not-Call' ( 'DNC' ) status shall immediately be placed on your company DNC list and Call Cowboy shall have no responsibility for notifying you of such opt-outs. You further agree that you will not initiate any subsequent messages to any individuals after they make a DNC or other opt-out or stop request.
You hereby acknowledge and confirm that you are solely responsible for the content of your messaging. You will ensure that any and all consents have been obtained, including, without limitation, consent for the delivery of commercial and marketing messages. You hereby acknowledge that Call Cowboy merely provides a platform for facilitating the sending of your messages, and that you shall have sole responsibility and liability for your messages and communications. You also agree to defend, indemnify and hold harmless Call Cowboy from and against any claims or damages which may result from your use of the Platform and Services, including, but not limited to, claims, damages, or lawsuits threatened or filed by third parties as well as inquiries and investigations by local, state and federal regulators (see Indemnity provision for a complete list of your indemnities to Call Cowboy). We reserve the right to hold, suspend or terminate your account or access to the Platform and/or Services for any alleged violation of this Section 6 and/or any unusual or suspicious activity related to your account.
7. Support and Customer Service
Except as otherwise provided herein, Call Cowboy will: (i) use commercially reasonable efforts to make the Platform available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond our reasonable control, including, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks. If you have a question regarding using the Platform or Services, you may contact us via email at firstname.lastname@example.org . You acknowledge that the provision of customer support is at Call Cowboy's sole discretion and that we have no obligation to provide you with customer support of any kind.
8. Linked Services; Dealings with Third Parties
10. Dispute Resolution
Certain portions of this Section 10 are deemed to be a 'written agreement to arbitrate' pursuant to the Federal Arbitration Act. You and Call Cowboy agree that we intend that this Section 10 satisfies the 'writing' requirement of the Federal Arbitration Act. This Section 10 can only be amended by mutual agreement.
11. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES IS AT YOUR SOLE RISK. THE PLATFORM AND SERVICES ARE PROVIDED ON AN 'AS IS', 'AS AVAILABLE', AND 'WITH ALL FAULTS' BASIS. Therefore, to the fullest extent permissible by law, Call Cowboy and its subsidiaries and each of their respective employees, directors, members, managers, shareholders, agents, vendors, licensors, licensees, contractors, customers, successors, and assigns (collectively, the 'Call Cowboy Parties' ) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to:
EXCEPT FOR ANY SPECIFIC WARRANTIES PROVIDED HEREIN OR IN ADDITIONAL TERMS PROVIDED BY A CALL COWBOY PARTY, CALL COWBOY PARTIES HEREBY FURTHER DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUS.
Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions' laws are applicable.
12. LIMITATIONS OF OUR LIABILITY
UNDER NO CIRCUMSTANCES WILL ANY CALL COWBOY PARTIES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGES OF ANY KIND, including personal injury or death or for any direct, indirect, economic, exemplary, special, punitive, incidental, or consequential losses or damages that are directly or indirectly related to:
The foregoing limitations of liability will apply even if any of the foregoing events or circumstances were foreseeable and even if the Call Cowboy Parties were advised of or should have known of the possibility of such losses or damages, regardless of whether you bring an action based in contract, negligence, strict liability, or tort (including whether caused, in whole or in part, by negligence, acts of god, telecommunications failure, or destruction of the Platform).
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages of the sort that are described above, so the above limitation or exclusion may not apply to you.
EXCEPT AS MAY BE PROVIDED IN ANY ADDITIONAL TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CALL COWBOY PARTIES' TOTAL LIABILITY TO YOU, FOR ALL POSSIBLE DAMAGES, LOSSES, AND CAUSES OF ACTION IN CONNECTION WITH YOUR ACCESS TO AND USE OF THE PLATFORM, YOUR UTILIZATION OF OUR SERVICES AND YOUR RIGHTS UNDER THESE TERMS, EXCEED AN AMOUNT EQUAL TO THE AMOUNT YOU HAVE PAID CALL COWBOY IN THE PREVIOUS TWELVE (12) MONTHS; PROVIDED, HOWEVER, THIS PROVISION WILL NOT APPLY IF A TRIBUNAL WITH APPLICABLE JURISDICTION FINDS SUCH TO BE UNCONSCIONABLE.
13. Waiver of Injunctive or Other Equitable Relief
IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE PLATFORM AND OUR PROVISION OF THE SERVICES, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY CALL COWBOY OR A LICENSOR OF CALL COWBOY.
14. Feedback You Submit
15. Updates to Terms
16. General Provisions