HEADLINER LABS TERMS of Service
Last revised: April 17, 2018
OhSayNation, Inc. (“Company” or “Headliner”), provides its Services (as defined below) to you through its web site located at http://portal.headlinerlabs.com/ (the “Site”), subject to these Terms of Service agreement (“TOS”) and the terms of any subscription agreement (“Subscription Agreement”) separately executed by you and Headliner. In the event of a conflict of terms between this TOS and your Subscription Agreement, the terms of your Subscription Agreement shall govern your relationship solely with respect to any such conflicting terms. In the event that these TOS govern a trial of Headliner’s Services, then at the conclusion of the trial, should you decide to continue utilizing the Services, these TOS will remain in effect and apply to any subsequent Services provided to you unless you and Headliner enter into a subsequent Subscription Agreement, in which case a subsequent Subscription Agreement will supersede these Terms.
By checking the box below and pressing “Continue,” or otherwise using any of the Services, you agree that you have read, understood, and agree to be bound by these TOS and any applicable Subscription Agreement, and they they govern your use of all Services and products provided by Headliner. If you are agreeing to these TOS on behalf of a company, organization or another legal entity (an “Entity”), you are agreeing to these TOS and any applicable Subscription Agreement for that Entity and representing to Company that you have the authority to bind such Entity and its Affiliates to the TOS, in which case the terms “Customer,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these TOS, You must not accept the TOS and may not use any of the Services of Headliner. “Services” herein means all services, products, functionality and assets provided by Company to Customer that Customer has or will purchase pursuant to a Pricing Plan during this signup through an online transaction or via a Pricing Order Form, but excluding Third-Party Services.
We may modify these TOS from time to time. When we do, we will post the updated TOS inside the Portal Website located at http://portal.headlinerlabs.com/, and will note the date it was last revised. When you use the Services after those updates are posted, you are deemed to accept and agree to be bound by those changes. These TOS will continue to apply until terminated by either you or Headliner as described below.
These TOS may include and incorporate a Pricing Order Form signed separately by Company and Customer, and includes the Platform Impact Document found at https://docs.google.com/document/d/1M1l5a3LxTsE02b95yALCaRTynhePDBMLs9nCe8mQ0hk/edit?usp=sharing, and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any related purchase order or similar form signed by Company and Customer before these TOS other than a valid and applicable Subscription Agreement.
THESE TOS CONSTITUTE A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS IN CONNECTION WITH A SUBSCRIPTION TO THE SERVICES.
1. SAAS SERVICES AND SUPPORT
1.1 Subject to these TOS, Company will use commercially reasonable efforts to provide Customer the Services. As part of the signup process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Subject to the TOS hereof, Company will provide Customer with reasonable technical support services in accordance with Company’s standard practice.
1.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
1.4 After implementation is complete, any action taken by Customer that interferes with or hinders the Services shall be Customer’s responsibility and shall not constitute a breach of these TOS by Company, nor entitle Customer to any refund or termination of the Services. These actions include, but are not limited to, changes made to Customer’s website that removes, interferes with, or renders defective or malfunctioning any web code or plugin code provided by Headliner, or changes made to Customer’s Facebook page, Facebook admin account, or Facebook app that interfere with the Services or cause the Services to malfunction. For a list of actions that might cause the above interruptions in the Services, see the the Headliner Platform Impact Document found here
2. TERM AND TERMINATION
2.1 Subject to earlier termination as provided below, You agree that Headliner will provide You the Services for the Initial Service Term as specified in the Pricing Plan or Pricing Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (the “Renewal Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current Term, or unless the Pricing Plan states otherwise. Any request for termination must be sent electronically to both firstname.lastname@example.org and email@example.com. Unless otherwise provided for in the Pricing Plan or in a communication signed by You and Headliner, the Fees applicable to your renewal of the Services for any Renewal Term shall be Headliner’s standard Fees for the Services to which You had previously subscribed as of the time such subsequent Renewal Term commences. Such Fees may not be publicly available, but are available upon request at any time by emailing firstname.lastname@example.org.
2.2 In addition to any other remedies it may have, either party may also terminate the Services upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of these TOS. Customer will pay in full for the Services up to and including the last day on which the Services are provided, and if Customer has provided a credit card to Company to make payments for the Services, Company is authorized to charge Your credit card for any amount due pursuant to these TOS and your Plan within 10 business days of termination, after which Company will delete Customer’s credit card information.
2.3 Upon the expiration or termination of the Services, and in the absence of a subsequent agreement between You and Headliner that takes effect immediately, no part of the Services will continue to operate or be accessible by You, Your ability to send messages to end users through the Services will cease, we are under no obligation to restore that capability, and upon the termination of Services, you will lose any accrued list of end users whom You can contact. Upon the expiration or termination of a then-applicable agreement or other equivalent agreement, Headliner has no obligation to store any data related to the Services rendered to you, including any data necessary for maintaining your ability to contact end users.
2.4 All sections of these TOS which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
3. PAYMENT OF FEES
3.1 You will pay Company the then-applicable fees for the Pricing Plan presented during this signup or in a separate Pricing Order Form for the Services and any Implementation Services in accordance with the terms therein (the “Fees”).
3.2 These TOS apply to an Initial Service Term, described during this signup in a Pricing Plan or in a separate Pricing Order Form. Headliner reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Service Term or then‑current Renewal Term, upon thirty (30) days prior notice to You (which may be sent by email).
3.3 If Customer believes that Headliner has billed You incorrectly, You must contact Headliner no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to email@example.com.
3.4 Setup Grace Period: Unless you pay the Fees upfront, you will be billed on a recurring and periodic basis ("Billing Cycle"). Billing Cycles are set on a monthly basis. After You complete this signup, You will be sent web code by Headliner and will be granted access to a Portal Site to create Your messages. The first Billing Cycle begins on the earlier of: the first date you start collecting users from the website plugin, or thirty days from the date Headliner sends you web code. You are charged on the same day every month (the “Billing Date”). Each Billing Date covers the one month period that ends on the Billing Date.
3.4 In any given Billing Cycle, You will be charged for the Minimum Service Capacity identified in the Pricing Plan or Pricing Order Form. If Your use of the Services exceeds the Minimum Service Capacity set forth in the Pricing Plan or Pricing Order Form, You agree to be charged for the next-highest Service Capacity tier that accommodates Your use of the Services for that Billing Cycle only.
3.5 Company may choose to bill through an invoice, or to require Company to provide access to a credit card. Full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. All rates are exclusive of any federal, state, or local sales or use taxes, or any other taxes or fees assessed on, or in connection with any of the Services rendered herein. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
3.6 Your account may be deactivated without further notice if payment is more than 30-days past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within 30 days of cancellation or termination of the Services.
4. YOUR USE OF THE SERVICES
4.1 You agree to access the Services solely as intended through the provided functionality of the Services and as permitted under the TOS and all applicable laws and regulations. You will not copy, reproduce, distribute, publish, display, perform, transmit, stream or broadcast any part of the Services without Headliner’s prior written authorization. This includes, but is not limited to, altering, defacing, mutilating or otherwise bypassing any approved websites through which the Services are made available. You agree not to bypass, circumvent, damage or otherwise interfere with any security or other features of the Services designed to control the manner in which the Services are used, harvest or mine content from the Services, attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
4.2 You agree not to undertake, cause, permit or authorize the translation, decompilation, reverse engineering, disassembling or hacking of any aspect of the Services, or attempt to do any of the foregoing, except and solely to the extent permitted by these TOS, the authorized features of the Services, or by law, or otherwise attempt to use or access any portion of the Services other than as intended by Headliner.
4.3 You agree not to use, display, mirror, frame or utilize framing techniques to enclose the Services, including any dashboard site made available on or through the Services, or any portion thereof, through any other application or website, unless and solely to the extent Headliner makes available the means for embedding any part of the Services.
4.4 You agree not to access, tamper with, or use nonpublic areas of the Services, Headliner’s (and its hosting Customer’s) computer systems and infrastructure, or the technical delivery systems of Headliner’s providers.
4.5 You agree not to gain unauthorized access to the Services, to other customers’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Services.
4.6 You agree not to post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file, or program that may or is intended to disable, overburden, impair, damage, or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Services or communications equipment and computers connected to the Services. You agree not to interfere with or disrupt the Services, or networks or servers connected to the Services, or violate the regulations, policies or procedures of such networks or servers.
4.7 You agree not to violate any applicable federal, state or local laws or regulations or these TOS, in your use of the Services. You understand that a breach of the restrictions listed above may subject you to prosecution and damages, as well as liability for infringement of intellectual property rights.
4.8 You may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by these TOS and will be prohibited except to the extent expressly permitted by the TOS.
4.9 You understand that Headliner makes no representation that the Services, any third party services, and any content sent through the Services, are appropriate or available for use in any particular location.
4.10 Headliner reserves the right to include “Powered by Headliner Labs” in the fixed menu created in your account’s Messenger window upon your registering for the Services, and to have that link to Headliner’s website or Messenger account, in a manner consistent with Headliner’s other Customers. Headliner reserves the right to list You as a customer on its website and in other materials. You and Headliner shall work together in good faith to issue at least one mutually agreed upon press release within 60 days of this signup date, and You otherwise agree to reasonably cooperate with Company to serve as a reference account upon request.
4.11 You understand that, in order to register for and utilize the Services, you will be granting permission to Headliner to use the Facebook page you link to the Services during the signup process to send messages on behalf of that Facebook page to end users and to do other functions, messaging, and experiences described during this signup and/or one or more Pricing Order Forms signed by You and Headliner.
4.12 You understand that there may be website code provided to you as part of the Services, and that such code may have a visual component that must be placed in designated locations and with certain specifications on your website product pages or other website pages. This visual component may include a Facebook Messenger icon, a checkbox which may be automatically pre-checked, an individual end user’s Facebook profile name and photo, and copy. Pursuant to Facebook’s Terms & Conditions, if you utilize a checkbox plugin, you agree to: (1) place the checkbox plugin above or adjacent to the button that will trigger the end user’s receipt of your messages through Messenger; (2) include text near the checkbox plugin that makes it clear it is an opt-in, and explains what type(s) of messaging (marketing, promotions, informational, etc.) you intend to send; and (3) agree to comply in all respects with the technical instructions that have been or will be provided to you by Headliner along with any web code including instructions on placement of code and copy to include with it.
4.13 Headliner may provide you with website code as part of the Services. The code will be accompanied by implementation instructions. Unless otherwise established in a signed agreement between you and Headliner, you bear all risk associated with the installation or implementation of all Headliner-provided code on your website, and Headliner bears no responsibility for any errors, omissions, consequences, risks, or actual or alleged losses that occur, directly or indirectly, from the implementation of Headliner-provided website code. The instructions contain contact information for Headliner. Please instruct the team responsible for implementation of any Headliner website code, whether they are internal or a third party, to contact Headliner via the included contact information (firstname.lastname@example.org) for any questions, concerns, uncertainties or clarifications before they begin implementation.
4.14 You understand that you will be sending messages to end users, including proactive messages initiated by you after an end user’s opt-in or opt-out consent on your website, via Facebook Messenger and you will be solely responsible for updating your own Terms & Conditions or other policies accordingly, if necessary. You are also responsible for compliance with
4.15 You understand that Your ability to use the Services to send messages to end users is only pursuant to Your agreement to these TOS or a signed Subscription Agreement.
4.16 You understand that Headliner must abide by the Terms of Service of Facebook as well as the Messenger Platform Policy, and any changes to the Services that Headliner undertakes to conform with the Terms of Service or other requirements of Facebook will in no way be considered a breach of these TOS.
4.17 You understand that some features and functions of the Services are dependent on features and functions made available to us by Facebook, Inc., and Headliner bears no responsibility for actions taken by Facebook that cause a disruption, cessation, deletion or other impediment to our ability to provide the Services, and any such disruption, cessation, deletion or other impediment to our ability to provide the Services shall not be considered a breach of these TOS or of any other signed agreement between You and Headliner unless the disruption, cessation, deletion or other impediment: (1) materially impacts the effectiveness of the Services; (2) is incurable after a sustained period of thirty days; and (3) has no equivalent or replacement feature that Headliner can implement for Customer.
4.18 You understand that after implementation is complete, any action taken by You that interferes with or hinders the Services shall be Your responsibility and shall not constitute a breach of these TOS by Headliner, nor will it entitle you to any refund or cessation of billing. Such actions include, but are not limited to, changes made to your website that removes or interferes with Headliner-provided web code, changes made to the Facebook page or Facebook app associated with the Services or to the administrator account on that Facebook page or Facebook app, and any other action taken by You that interferes with Headliner’s ability to provide You the Services. For a list of actions that might cause the above interruptions in the Services, see the the Headliner Platform Impact Document found here.
5. MESSAGING FUNCTION AND YOUR CONTENT
5.1 As part of the Services, You may send content to end users (“Customer Content”). You are solely responsible for Your use of the Services to send Customer Content to end users and You do so at your own risk. The ability to send Customer Content to end users is a feature available only for individuals aged 13 years or older, and You represent that anyone who sends Customer Content through the Services is 13 years of age or older and, if they are under the age of 18, they either are an emancipated minor or have obtained the legal consent of a parent or legal guardian to agree to these TOW.
5.2 You agree that You will not upload, post or otherwise transmit any Customer Content that: (a) violates or infringes in any way upon the rights of others, including any statements which may defame, harass, stalk or threaten others; (b) You know to be false, misleading or inaccurate; (c) contains blatant expressions of bigotry, racism, racially or ethnically offensive content, hate speech, abusiveness, vulgarity or profanity; (d) contains or advocates pornography or sexually explicit content, pedophilia, incest, bestiality, or that is otherwise obscene or lewd; (e) violates any law or advocates or provides instruction on dangerous, illegal, or predatory acts, or discusses illegal activities with the intent to commit them; (f) advocates violent behavior; (g) poses a reasonable threat to personal or public safety; (h) contains violent images of killing or physical abuse that appear to have been captured solely, or principally, for exploitative, prurient, or gratuitous purposes; (i) is protected by copyright, trademark, trade secret, right of publicity or other proprietary right without the express permission of the owner of such copyright, trademark, trade secret, right of publicity or other proprietary right. The burden of determining that any Customer Content is not protected by copyright, trademark, trade secret, right of publicity or other proprietary right rests with You. You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, trade secrets, rights of publicity or other proprietary rights or any other harm resulting from such a submission. Any person determined by Headliner, in its sole discretion, to have violated the intellectual property or other rights of others shall be barred from submitting or posting any further Customer Content. Customer Content may not contain any unsolicited or unauthorized advertising or promotional materials with respect to products or services, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other unauthorized form of solicitation, and may not use the name or likeness of an identifiable natural person without such person’s consent. You agree not to represent or suggest, directly or indirectly, that Headliner endorses any Customer Content.
5.3 Headliner reserves the right, but not the obligation, to monitor Customer Content posted or uploaded through the Services to determine compliance with these TOS and any operating rules established by us and to satisfy any law, regulation or authorized government request. Although we have no obligation to monitor, screen, edit or remove any of the Customer Content posted or uploaded through the Services, Headliner reserves the right to screen, edit, refuse to post or remove without notice any Customer Content posted or uploaded through the Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any Customer Content at your sole cost and expense. Headliner’s right to monitor and remove Customer Content does not constitute nor shall it be deemed to constitute any responsibility or liability in any manner on our part in connection with or arising from your use of the Services.
5.4 By submitting Customer Content through the Services, You automatically grant us a royalty-free, perpetual, irrevocable, non-exclusive, worldwide right and license to use, publish, reproduce, modify, adapt, edit, translate, create derivative works from, incorporate into other works, distribute, sublicense (through multiple tiers) and otherwise exploit such Customer Content (in whole or in part) in any form, media or technology now known or hereafter developed, without payment to You or to any third parties, for the purpose of providing the Services to You. Additionally, to the fullest extent permitted under applicable law, You waive your moral rights in the Customer Content and agree not to assert such rights against us. You represent and warrant to us that You have the full legal right, power and authority to grant to us the license provided for herein, that You own or control the complete exhibition and other rights to the Customer Content You submitted for the purposes contemplated in this license and that neither the Customer Content nor the exercise of the rights granted herein shall violate these TOS, or infringe upon any rights, including the right of privacy or right of publicity, or constitute a libel or slander against, or violate any common law or any other right of, or cause injury to, any person or entity. You further grant to us the right, but not the obligation, to pursue at law any person or entity that violates Your or our rights in the Customer Content.
6. END USER CONTENT
Through your use of the Services, and in communicating with end users, you may be exposed to content that you may find offensive, harmful, inaccurate, deceptive or otherwise objectionable. There may also be risks of dealing with foreign nationals, underage persons, people acting under false pretense, or international trade issues. By using the Services, you assume all associated risks that arise from communicating with end users.
7. ACCOUNT SECURITY
As part of the Services, Headliner will provide you with access to a website which will be accessible upon your creation of a Headliner account and protected by a password (the “Portal”). Your account must be created by a person authorized to do so on your behalf. You may not share your Portal account information with, or allow unauthorized access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of your Portal account and the Services and to preserve the confidentiality of your username and password, and any device that you use to access the Services. You agree to notify Headliner immediately of any breach in secrecy of your log-in information. You shall be solely responsible for maintaining the confidentiality of your password. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify us via e-mail at email@example.com. You will be solely responsible for the losses incurred by Headliner and others due to any unauthorized use of your account.
Both Headliner and Customer (each a “Party,” and together, the “Parties”) agree to keep the other Party’s proprietary information, including but not limited to, any applicable Pricing Order Form or Subscription Agreement, all personnel-related information or information derived from or containing personnel information, all non-public information concerning the Services (including, without limitation, the concepts, techniques, ideas, algorithms, methods, and structure and design elements embodied and expressed in any computer programs or modules included in Software, as well as the structure, sequence and organization of such programs or modules), each party’s financial information, trade secrets, customer lists, business plans and other business information (“Confidential Information”), confidential and to treat Confidential Information with at least the same level of security and confidentiality as the Party handles its own Confidential Information in order to prevent inadvertent disclosure or un-permitted use of such information and shall ensure that its employees who have access to the Confidential Information have signed non-use and non-disclosure agreements in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. To the extent that any of a Party’s Confidential Information is disclosed by the other Party pursuant to a permitted use of subcontracting entities for performance of the Services, the disclosing Party shall ensure that such subcontracting entities execute a confidentiality agreement at least as strict as the provisions contained in these TOS. All Confidential Information delivered by a Party shall be and shall remain at all times the property of the Party disclosing same. Either Party may only use Confidential Information as necessary to perform its obligations under these TOS. Each Party shall promptly return all Confidential Information upon termination of the Services and upon request certify compliance with this paragraph.
9. USE OF SUBCONTRACTORS AND CONSULTANTS
In the event you provide access to your account information, or to any intellectual property owned by Headliner, including, but not limited to, website code or the Portal website through which you can manage your account and activities related to the Services, to subcontractors, consultants, or any other third parties, all such third parties are bound by the provisions of these TOS. Customer hereby warrants that You will take reasonable measures to ensure that all such third parties are aware of their obligations under these TOS and abide by them. You are solely responsible for any breach of these TOS, and of any other applicable agreement, by any such third parties.
10. THIRD PARTY TERMS, LAWS
10.1 In utilizing the Services, you agree to be bound by the Terms of Service
of Facebook, Inc. (“Facebook”), and the Facebook Community Standards
. In addition, we may allow you to link or integrate the Services with other third party content and services, in which case you may be subject to additional third party terms of service and/or privacy policies through your use of the Services. You acknowledge and agree that you are solely responsible for and will abide by all applicable third party terms of service and privacy policies.
10.2 Some aspects of the Services may include default opt-in and opt-out options for end users. Local law in some jurisdictions may require an opt-in experience when using certain aspects of the Services for purpose of sending marketing or promotional communications. It is your responsibility to ensure that your use of the Services complies with applicable law.
11. WARRANTY AND DISCLAIMER
11.1 YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (1) YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. HEADLINER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED BY CUSTOMER ON OR THROUGH THE SERVICES, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) HEADLINER MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, INCLUDING DATA, WILL BE ACCURATE OR RELIABLE, (iv) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; AND (C) ANY MATERIAL OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE USE OF ANY SUCH MATERIAL.
11.2 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner.
12. LIMITATION OF LIABILITY
12.1 IN NO EVENT WILL HEADLINER AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS (COLLECTIVELY, THE “RELEASED PARTIES”) BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF, OR RELATING TO, ANY SUBJECT MATTER OF THESE TOS OR AN APPLICABLE SUBSCRIPTION AGREEMENT AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR THE USE OF OR THE INABILITY TO USE THE SERVICES; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SERVICES; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) LOSS OF BUSINESS; (E) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (F) FOR ANY MATTER BEYOND HEADLINER’S REASONABLE CONTROL; OR (G) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY YOU TO HEADLINER FOR THE SERVICES UNDER THE PRICING PLAN OR A PRICING ORDER FORM IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT HEADLINER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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 IN THIS PARAGRAPH MAY NOT APPLY TO YOU.
12.2 Headliner is not responsible for any disputes or disagreements between you and any third party or end user you interact with using the Services. You assume all risk associated with dealing with third parties and end users through the Services. You agree to resolve any disputes directly with the other party or end user and release Headliner of all claims, demands, and damages in disputes between you and third parties or end users related to the Services. You also agree not to involve Headliner in such disputes. Headliner makes no representations or warranties as to the conduct of any third parties or end users of the Services or any other functions you provide to third parties or end users through the Services. IN NO EVENT WILL HEADLINER BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF, OR RELATING TO, YOUR CUSTOMER CONTENT OR YOUR CONDUCT IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, LOSS OF BUSINESS, LOST PROFITS, TRADE SECRET MISAPPROPRIATION, INTELLECTUAL PROPERTY INFRINGEMENT, AND/OR ANY OTHER DAMAGES RESULTING FROM COMMUNICATIONS WITH END USERS OF THESE SERVICES OR PERSONS YOU COMMUNICATE WITH THROUGH THE SERVICES.
12.3 HEADLINER IS NOT AFFILIATED WITH ANY SERVICE PROVIDER, OR THIRD PARTY SERVICE, AND ANY DISPUTE YOU HAVE WITH ANY SERVICE PROVIDER, THIRD PARTY SERVICE OR OTHER THIRD PARTY IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE HEADLINER FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
12.4 In your use of the Services, through your Customer Content, you may include links to third party websites and applications, including, but not limited to, websites managed and operated by you or by others. You are responsible for evaluating whether you want to provide links to any such websites and applications. Headliner is not responsible for and does not endorse any features, content, advertising, products, or other materials on other non-Headliner websites or applications. You assume all risk, and we disclaim all liability, arising from your use or inclusion of links to any third party websites or applications in the Customer Content. You are responsible for accessing, reviewing, and abiding by the Terms and Conditions, policies, and other usage rules of all third party websites or services that you connect with the Services. Headliner bears no responsibility or liability for your violation of the Terms and Conditions or other policies of any such third parties. Headliner will not be liable for actions taken by third party websites and applications, including Facebook and Facebook Messenger, that cause a disruption, cessation, deletion or other impediment to our ability to provide the Services except as otherwise stated herein.
Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from: (i) your use of or reliance on any third-party content as part of your use of the Services, (ii) your breach of these TOS or a Subscription Agreement; or (iii) your use of the Services outside the scope of these TOS or a Subscription Agreement. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Customer is responsible for any claims, fees, fines, penalties, and other liability incurred by Headliner or others caused by, or arising out of, Your breach of these TOS or a Subscription Agreement and your use of the Services.
14.1 The Services, the underlying code base and supporting documentation related to the Services, web code provided to You, and the Portal website You are granted access to, including all intellectual property rights therein, any Facebook property created by Headliner, and any other asset or entity created by Headliner, remain the sole and exclusive property of Headliner. Headliner shall own and retain all right, title and interest in and to (a) the Services and software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, (c) any Headliner-created asset, website, Facebook asset; and (d) all intellectual property rights related to any of the foregoing.
14.2 Except for the limited rights or licenses expressly granted to You under these TOS or other applicable signed agreement, no other rights, licenses, or immunities are granted or will be deemed to be granted to You under, either expressly, or by implication, estoppel or otherwise. All text, graphics, photographs, trademarks, logos, icons, user interfaces, sounds, music, videos, artwork, information, software and computer code (collectively, “Headliner Content”), including but not limited to the “look and feel,” layout, design, structure, color scheme, selection, combination and arrangement of the Headliner Content present on any of the websites maintained by us, is owned by or licensed to us. Headliner Content is protected by copyright, trademark, trade dress and various other intellectual property and unfair competition laws. Except with our express written permission or as permitted by applicable laws, You may not copy, distribute, reproduce, mirror, frame, publicly display, publicly perform, translate, create derivative works of, re-publish or transmit the Headliner Content (in whole or in part) in any way or through any medium for distribution, publication or any commercial purpose. You may display, copy and download Headliner Content solely for Your personal and non-commercial use provided that: (a) You do not remove any copyright or proprietary notice from the Headliner Content; (b) such Headliner Content will not be copied or posted on any networked computer or published in any medium; and (c) no modifications are made to such Headliner Content.
14.3 "User Data" is defined as any personally identifiable information or data about end users collected by or through the Services. Customer shall own all right, title and interest in and to the User Data collected. Notwithstanding anything to the contrary, Headliner shall have the right collect and analyze User Data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning User Data and data derived therefrom), and Headliner will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
14.4 Headliner shall employ industry commonly accepted security practices appropriate to the type and nature of data to store and protect User Data in its custody or otherwise processed by Headliner. You are solely responsible for taking appropriate security, privacy, performance and compliance measures, including technical, physical, and organizational controls, in order to maintain the confidentiality, integrity and availability of User Data that you collect through the Services or that is provided to You by Headliner.
14.5 Headliner retains ownership of all anonymous, non-personally identifiable data obtained from Facebook associated with Facebook properties controlled by Headliner.
14.6 You hereby grant Headliner the nonexclusive right and license to use and display Customer’s name, logo and similar indicia (“Customer Marks”) (a) to the extent any customization or implementation of the Services involve the incorporation of Your Marks in furtherance of these TOS and (b) on Headliner’s website and marketing collateral identifying You as a customer of Headliner. Headliner obtains no rights in the Customer Marks except for the limited right described in the preceding sentence, and You retain all right, title and interest in the Customer Marks. All use of the Customer Marks by Company will inure to Customer.
15.1 If any provision of these TOS is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the TOS will otherwise remain in full force and effect and enforceable. Any rights and Services granted under these TOS are not assignable, transferable or sublicensable by Customer except with Headliner’s prior written consent. Headliner may transfer and assign any of its rights and obligations under these TOS without consent. These TOS are the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these TOS . All waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of the Services and Customer does not have any authority of any kind to bind Headliner in any respect whatsoever. In any action or proceeding to enforce rights under these TOS, the prevailing Party will be entitled to recover costs and attorneys’ fees.
15.2 All notices under these TOS will be in writing unless otherwise noted, and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
16.1 These TOS and all matters related thereto shall be governed by the applicable United States federal laws and state laws of the State of New York. You hereby expressly consent to the jurisdiction and venue of the federal and state courts located in the State of New York.
16.2 The Parties shall meet and confer in good faith to resolve any disputes, claims, questions, or disagreement arising out of these TOS. Either Party may initiate negotiations by providing written notice to the other Party, setting forth the subject of the dispute and the relief requested. The recipient of such notice shall respond within five days with a written statement of its position on and recommended solution to the dispute. If the dispute is not resolved through this exchange of correspondence, then representatives of each Party with full authority to settle the dispute will meet at a mutually agreeable time and place within ten (10) days of the initial notice in order to exchange relevant information and attempt to resolve the dispute. If the dispute is not resolved by these negotiations, the Parties will consider and decide whether to submit the dispute to mediation, arbitration, or other forms of resolution. Nothing in this clause precludes either Party’s right to seek redress in the courts at any stage of the dispute. Any dispute that is submitted to arbitration shall be submitted to binding arbitration before a mutually agreed upon Arbitrator pursuant to the rules of JAMS, to take place in New York, New York. The Arbitrator’s award shall be final, and judgment may be entered in any court having jurisdiction thereof. The prevailing Party shall be awarded its arbitration and court costs and reasonable attorney’s fees.
17. APPLICABILITY TO UPDATES
These TOS will govern any updates provided to you by Headliner that replace and/or supplement the Services, unless such upgrade is accompanied by a separate or revised Subscription Agreement or TOS that you agree to in writing, in which case the terms of that agreement will govern.
YOU WARRANT THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH IN THESE TOS. THESE TOS SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS.