I hereby acknowledge and authorize 5LINX Enterprises, Inc. to charge my credit card according to the terms of this agreement herein.
This Agreement (the "Agreement") is entered into by and between 5LINX Enterprises, Inc. (5LINX) and ("Customer"), and shall be effective as of this date. By activating the Service, you acknowledge that you have read and understand, and you agree to, the terms and conditions of the Agreement, and you represent that you are of legal age to enter the Agreement and become bound by its terms.
5LINX will provide the services set forth in this agreement. 5LINX will use commercially reasonable efforts to provide a secure transmission of customer data to and from the database. The services and all related software and intellectual property are hereinafter referred to as the "Services."
Customer shall pay to 5LINX the fees set forth in Schedule A. 5LINX will invoice Customer for these fees on a monthly billing cycle. Customer agrees to pre-pay for every month of service. Customer acknowledges that all text message overages are charged in arrears at the rate designated in their existing monthly plan as detailed in Schedule A. All charges and fees hereunder are exclusive of federal, state and local excise, sales, use and other taxes now or hereafter levied or imposed for the provision of Services hereunder.
5LINX hereby grants Customer a non-exclusive, non- transferable license to access and use the Services at Customer's place of business. Customer is prohibited from reselling, loaning or otherwise sharing the Services or divulging any related confidential information including, but not limited to passwords or instructional manuals. Except as expressly permitted in this Section, Customer may not use, reproduce, transfer, share, sublicense or transmit the Services in any form or by any means without the prior written consent of 5LINX. No customer will be permitted more than two (2) licenses using the same name, address, or method of payment (e.g. Credit Card)
a) 5LINX PROVIDES THE SERVICES "AS IS" AND MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, ORAL, IMPLIED OR STATUTORYAND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING, BUT NOT LIMITED TO, THE QUALITY, COMPLETENESS, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
b) 5LINX SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR INJURY TO ANY PERSON OR PROPERTY WHATSOEVER RESULTING FROM THE USE OF OR INABILITY TO USE THE SERVICES OR SOFTWARE OR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES OR EXPENSES OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF OR RELATING TO THE SERVICE FOR SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SPECIFICALLY, 5LINX SHALL NOT BE RESPONSIBLE FOR ANY LOST PROFITS OR REVENUE, OR COSTS, INCLUDING, BUT NOT LIMITED TO, THOSE INCURRED AS A RESULT OF LOSS OF USE OF THE SERVICES OR SOFTWARE, LOSS OF DATA, BUSINESS INTERRUPTION. COST OF RECOVERING SOFTWARE OR DATA, COST OF SUBSTITUTE SOFTWARE OR DATA. OR OTHER SIMILAR COSTS. IN NO EVENT SHALL 5LINX’S TOTAL LIABILITY OF ANY KIND, REGARDLESS OF THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEED THE TOTAL AMOUNT PAID TO 5LINX UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
a) Customer assumes sole responsibility for all use of the Services and agrees to indemnify, defend and hold 5LINX and its affiliates, and its and their respective officers, directors, employees, agents and representatives harmless from and against any and all claims, causes of action, suits, proceedings, demands, damages, costs, expenses and liabilities of any kind whatsoever, including (without limitation) legal expenses and reasonable attorneys' fees, from third parties ("Claims"), arising out of or in any way related to (i) Customer's use of the Services, including without limitation the use or inability to use the same, or any errors or omissions in the same, or (ii) any breach by Customer of this Agreement.
b) If a preliminary or final judgment shall be obtained against Customer's use of the Services by reason of a Claim that the Services infringe or misappropriate the intellectual property rights of a third party or if the Services are likely to become the subject of such a Claim, 5LINX shall at its option and expense either procure for Customer the right to continue to use the Services as provided in this Agreement, or replace or modify the Services with a version of Services that is non-infringing, but performing substantially similar functions. In the event that neither of the foregoing options is commercially reasonable in 5LINX's sole judgment, 5LINX shall cease providing the Services to Customer and refund to Customer any pre-paid license fees paid by Customer for the remainder of the Term. THE RIGHTS AND OBLIGATIONS IN THIS SECTION 7(b) ARE 5LINX'S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO ANY INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
a) The term of this agreement shall commence upon acceptance herein. Thereafter, this Agreement shall automatically renew on a month-to-month term unless either party provides written notice to the other party that it will not renew, such notice to be given at least thirty (30) days prior to the expiration of the then-existing Term.
b) Either party may terminate this Agreement immediately for any breach of this Agreement by the other party that is not cured within thirty (30) days after receipt of written notice of the breach from the non-breaching party; provided, however, that the cure period for the breach of an obligation to pay fees when due shall be ten (10) days. 5LINX may terminate this Agreement at any time without cause upon thirty (30) days written notice to Customer.
c) This Agreement shall be immediately terminated upon the dissolution or bankruptcy of Customer, the filing of a bankruptcy petition by or against Customer or a general arrangement or assignment by Customer for the benefit of creditors.
d) Termination or expiration of this Agreement for any reason shall not release any party from any liabilities or obligations set forth in this Agreement that by their nature would be intended to be applicable following any such termination or expiration.
e) 5LINX reserves the right to suspend the Services or terminate this Agreement in the event that a payment due remains unpaid five (5) business days after Customer has been notified of such non-payment.
a) This Agreement will be construed in accordance with and governed by the laws of the State of New York, without regard to principles of conflicts of law. Any disputes under this Agreement shall be brought in Monroe County, New York.
b) Any dispute or claim arising hereunder shall be submitted to binding arbitration in Monroe County, New York, and conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA), and the parties expressly waive any right they may otherwise have to cause any such action or proceeding to be brought or tried elsewhere. The parties hereunder further agree that: (i) any request for arbitration shall be made in writing and must be made within a reasonable time after the claim, dispute or other matter in question has arisen; provided however, that in no event shall the demand for arbitration be made after the date that institution of legal or equitable proceedings based on such claim, dispute, or other matter would be barred by the applicable statutes of limitations; (ii) the award or decision of the arbitrator, which may include equitable relief, shall be final and judgment may be entered on such award in accordance with applicable law in any court having jurisdiction over the matter.
c) In any action, arbitration, or other proceeding by which one party either seeks to enforce its rights under the Agreement, or seeks a declaration of any rights or obligations under the Agreement, the prevailing party will be entitled to reasonable attorney's fees and reasonable costs and expenses incurred to resolve such dispute and to enforce any final judgment.
a) Notices. All notices and other communications to each party must be in writing and sent to the party at the address specified in this Agreement or to such alternative address as either party may furnish in writing to the other from time to time. If to 5LINX, Attention: Legal Department. Unless otherwise agreed, notice shall be deemed given (i) upon receipt when delivered personally, (ii) upon written verification of receipt from overnight courier, (iii) upon verification of receipt of registered or certified mail.
b) Force Majeure. Neither party shall be liable or deemed to be in default for any delays or failure in performance resulting directly or indirectly from any cause or circumstances beyond its reasonable control, including but not limited to acts of God, war or warlike conditions, terrorism, riot, embargoes, acts of civil or military authority, fire, flood, accidents, strikes or labor shortages, sabotage, Internet failure, transportation facilities shortages, fuel or materials or for failures of equipment, telecommunications facilities or third party software programs.
c) Severability.If any term or condition hereof is found by a court or administrative agency to be invalid or unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law.
d) Waiver. The failure of either party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time. A party's remedies set forth herein are not exclusive and are in addition to any and all other remedies available at law or in equity, none of which shall be deemed as waived by virtue of a party's exercise of any other remedy.
e) Entire Agreement. This Agreement and related exhibits and attachments represent the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings. There are no representations, warranties, promises, covenants or undertakings, except as described herein.
f) Service Enhancements. 5LINX reserves the right to add or delete programs or services as part of our continued enhancement of the Services.
g) Amendment. Except where otherwise provided herein, this Agreement may be amended or modified by 5LINX at any time.
h) Assignment. Customer may not sell, mortgage, assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity, without the express written consent of 5LINX
i) Independent Contractors. The relationship of the parties will be that of independent contractors. Neither of the parties will have, and will not represent that it has, any power to bind the other or to create any obligation on behalf of the other. Nothing stated in this Agreement shall be construed as constituting or as creating the relationships of employer/employee, fiduciary, principal/agent, partnership, joint venture or representative of the other.
j) Third Party Beneficiaries. This Agreement is not intended to benefit any third party and the parties do not intend to create any third party beneficiary rights under this Agreement.
a.) Access to Customer Data. 5LINX will provide Customer with a username and password to access the marketing services & Application via an online portal. Customer is responsible to adhere to MMA (Mobile Marketing Association) Best Practices Guidelines as frequently updated online at http://mmaglobal.com/ when using the marketing services & Application.
b.) Collection of User Data. As part of the Services, 5LINX shall collect on behalf of Customer, data regarding the users of the Applications, including, without limitations, traffic or created from the Applications and periodically transmit to Customer such data. Customer data will be considered Confidential Information of Customer, and all right, title and interest in and to such information will be owned by Customer. During the Term, 5LINX will make standard reports available to Customer containing data and other traffic generated or collected by 5LINX regarding the use of the Applications.
c.) Back-up of Client Data. 5LINX is not responsible for, and Customer hereby agrees to indemnify and hold 5LINX harmless for, the storage or dissemination of Customer Data by 5LINX. Customer shall maintain as it deems appropriate back-up copies of all Customer Data transmitted to 5LINX for use in connection with the Applications. 5LINX is not responsible for any storing or back-up of such data.
Note: Our servers are a distributed, redundant cloud array and the data is backed up nightly to ensure data integrity. Any sensitive information that we store in our databases is secured using industry standard hash algorithms with salt to obfuscate data. All communications with our SMS platform occur over a verified SSL connection using 128-bit encryption for data security.
Scope. Customer and all persons and entities accessing the Services must comply with this Acceptable Use Policy ("AUP"). By using the Services, Customer acknowledges, and agrees to ensure compliance with, this AUP. 5LINX in its discretion may modify this AUP at any time.
Restrictions on Use. Customer agrees to ensure that the Services will not be used in or for any illegal, fraudulent, unauthorized or improper manner or purpose and will only be used in compliance with all applicable laws, rules and regulations, including all applicable state, federal, and international Internet, data, telecommunications, telemarketing, "spam," and import/export laws and regulations, including the U.S. Export Administration Regulations. Without limiting the foregoing, Customer agrees to not permit the Services to be used to transmit or disseminate any:
(i) junk mail, spam, or unsolicited material to persons or entities that have not agreed to receive such material or to whom Customer or its End-Users do not otherwise have a legal right to send such material;
(ii) material that infringes or violates any third party’s intellectual property rights, rights of publicity, privacy, or confidentiality, or the rights or legal obligations of any wireless service provider or any of its customers or subscribers;
(iii) material or data, that is illegal, or material or data, as determined by 5LINX (in 5LINX sole discretion), that is harassing, coercive, defamatory, libelous, abusive, threatening, obscene, or otherwise objectionable, materials that are harmful to minors or excessive in quantity, or materials the transmission of which could diminish or harm the reputation of 5LINX or any third-party service provider involved in the provision of the Services;
(iv) material or data that is alcoholic beverage-related (e.g., beer, wine, or liquor), tobacco-related (e.g., cigarettes, cigars, pipes, chewing tobacco), guns or weapons-related (e.g., firearms, bullets), illegal drugs-related (e.g., marijuana, cocaine), pornographic-related (e.g., adult themes, sexual content), crime-related (e.g., organized crime, notorious characters), violence-related (e.g., violent games), death-related (e.g., funeral homes, mortuaries), hate-related (e.g. racist organizations), gambling-related (e.g., casinos, lotteries), specifically mentions any wireless carrier or copies or parodies the products or Services of any wireless carrier;
(v) viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or personal information;
(vi) material or information that is false, misleading, or inaccurate;
(vii) material that would expose 5LINX, any third-party service provider involved in providing the Services, or any other third party to liability; and/or
(viii) any signal or impulse that could cause electrical, magnetic, optical, or other technical harm to the equipment or facilities of5LINX or any third party.
Customer shall not access any Carrier services that Customer has not ordered or for which Customer has not paid applicable fees. Customer will not use or attempt to use a third party’s account with 5LINX, or interfere with the security of, or otherwise abuse, the Services or other 5LINX customers. Customer shall not interfere in any manner with 5LINX provision of the Services.
11. Eligibility you must be at least 18 years old to be eligible to use the service. However, if you are at least 13 years old but not yet 18, you may use the service if, and only if, you have your parents’ or guardians’ prior permission. No one under age 13 may use the service under any circumstances. By clicking the Sign up button you are representing that you are at least 18 or that you are at least 13 years old and have your parents’ permission to register for the service.
The product is a bundled offering that includes SMS (text) marketing, web conferencing, computer tech support, and VIP discounts. SMS marketing includes the ability to create on demand mobile ads and mobile marketing events including keyword campaigns, auto-responders, blasts, contests and promotions through one way and two-way SMS.
A monthly fee of $49.95 will be assessed for the product. Included in this monthly fee is the ability to utilize one (1) keyword and 1000 text messages for SMS marketing. Effective October 1, 2011 the following additional fees may be assessed if more than one (1) keyword and/or 1000 text messages is used:
Each additional text marketing keyword - $15/month
Each additional 1,000 text messages - $25/ month