IMPORTANT NOTICE: THESE TERMS OF SERVICE CONTAIN A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER, WHICH AFFECT YOUR LEGAL RIGHTS, AS DETAILED IN SECTION 20 BELOW. PLEASE READ CAREFULLY.
THESE TERMS OF SERVICE (THESE “TERMS”), ALONG WITH ANY APPLICABLE SERVICE ORDER (DEFINED BELOW) OR ANY DOCUMENT INCORPORATED INTO THEM BY REFERENCE (COLLECTIVELY, THE “AGREEMENT”) GOVERN SUBSCRIPTION TO AND USE OF VOYAGE MOBILE’S SERVICE (DEFINED BELOW). BY ACCESSING OR USING VOYAGE MOBILE’S SERVICE, YOU ACCEPT OR AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO OR ACCEPTING THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE VOYAGE MOBILE’S SERVICE.
This Agreement governs the provision of access to its software-as-a-service product known as Voyage SMS (“Platform”) by Voyage Mobile, Inc. (“Voyage Mobile”, “We”, or “Us”), a Delaware corporation located 1209 Orange Street Wilmington, DE 19801 to the party on whose behalf this Agreement is accepted (“Customer” or “you”) and its Authorized Users (defined below). To the extent the person or entity accessing and using the Service (defined below) is a Subscriber (defined below), such Subscriber enters into this Agreement as if it were the Customer hereunder to the extent that such Agreement would be applicable to such Subscriber’s use of and access to the Service hereunder. The Platform may include certain templates or other materials provided by Voyage SMS to help Customer communicate effectively with Subscribers (defined below) (“Templates,” together with the Platform, the “Service”). As used herein, the term “Authorized User” means any employee or contractor (including any third-party service provider) of Customer for whom Customer has created an account to access and use the Platform through the functionality available on Voyage Mobile’s website located at use www.voyagesms.com. For the avoidance of doubt, Authorized Users may include Subscribers. Customer grants Voyage Mobile permission for Voyage Mobile to make modifications on its and its Authorized Users’ accounts on their behalf in accordance with any specific instructions. The Service that Voyage Mobile is to provide to Customer is described in one or more online or written ordering documents (“Service Order”). This Agreement hereby incorporates by reference any such Service Order.
2. Proprietary Rights.
a. License to Service. Subject to the terms and conditions of this Agreement, Voyage Mobile hereby grants to Subscriber during the Term (defined below) a non-exclusive, non-transferable and non-sublicensable license to allow the Authorized Users to access and use the Platform (including any and Templates therein) solely to conduct message-based marketing for Subscriber’s business.
b. Restrictions. Customer and its Authorized Users may not: (i) copy, modify, translate, or create derivative works of the Service; (ii) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Platform; (iii) lend, lease, offer for sale, sell or otherwise use the Service for the benefit of any third party or provide any third party except for Authorized Users with access to the Service; (iv) attempt to disrupt the integrity or performance of the Platform; (v) attempt to gain unauthorized access to the Platform or its related systems or networks; (vi) use the Service in a manner that violates this Agreement, any third-party rights or any applicable laws, or rules or regulations; or (vii) access the Service to build a competitive product or services or copy any ideas, features, functions, or graphics of the Service. Customer acknowledges and agrees that it is responsible for the use or misuse of the Service by Authorized Users, and a breach by any Authorized User of any term of this Agreement will be deemed a breach by Customer of this Agreement.
c. Ownership of Service. Except for the rights granted to Customer and its Authorized Users in Section 2.A above, as between the parties, Voyage Mobile retains all right, title and interest, including all intellectual property rights, in and to the Service and all de-identified information that Voyage Mobile’s systems or applications automatically collect regarding use of the Service and the Platform’s performance (“Diagnostic Data”). All rights that Voyage Mobile does not expressly grant to Customer in this Agreement are hereby reserved. Voyage Mobile does not grant any implied licenses under this Agreement.
d. Customer Data. As between the parties, Customer owns all Data (defined below). Customer hereby grants to Voyage Mobile a non-exclusive and non-transferable (except pursuant to Section 11(c) below) license to host, copy, process and transmit the data, information and other materials transmitted to or through the Platform by Customer or Authorized Users (except for Diagnostic Data and Feedback (defined below)) (collectively, “Data”) solely to provide and improve the Service.
e. Feedback. From time-to-time, Customer may make available to Voyage Mobile, directly or indirectly, feedback, analysis, suggestions and/or comments related to the Service (collectively, “Feedback”). Customer hereby grants to Voyage SMS a perpetual and irrevocable right to use such Feedback to provide and improve the Service without any compensation or credit to Customer.
3. Account Registration and Security.
Access to and use of the Service may require Customer and/or its Authorized Users to register for an account. Customer and its Authorized Users agree to provide true, accurate, current, and complete information as prompted by the applicable registration or log-in form, and Customer and/or its Authorized Users are responsible for keeping such information up to date. Customer responsible and liable for all activities conducted through Customer’s account, regardless of who conducts those activities. Customer and its Authorized Users may not share your account with anyone or allow anyone else to access or use Customer’s account. Customer and its Authorized Users are responsible for maintaining the confidentiality of Customer’s account information, including all usernames and passwords. Customer agrees to immediately notify Voyage Mobile of any unauthorized use of Customer’s account, or any other breach of security. Voyage Mobile us not liable for any loss or damage arising from Customer’s or its Authorized Users’ failure to protect usernames or passwords.
4. Messaging Obligations; User Content.
a. Messaging Obligations. The Service may enable users to upload, display, and send email, text, and other electronic messages (collectively, “Messages”) to Subscribers (defined below). When using the Service to send text messages or email messages (collectively, “Messages”), Customer will, and will cause its Authorized Users to: (A) comply and maintain appropriate records to demonstrate its compliance with all applicable federal, provincial, state, and local laws, regulations, and rules governing Messages, including, without limitation, the Telephone Consumer Protection Act and its implementing rules and regulations, the Telemarketing and Consumer Fraud and Abuse Prevention Act, the Federal Trade Commission’s Telemarketing Sales Rule, the CAN-SPAM Act of 2013, the Personal Information Protection and Electronic Documents Act, provincial privacy legislation, Canada’s Anti-Spam Legislation (“CASL”), and all state and local equivalents; and all applicable industry guidelines and best practices, including, without limitation, the CTIA Short Code Monitoring Handbook and Messaging Principles and Best Practices (collectively, “Applicable Message Requirements”); (B) ensure the content of all Messages complies with Applicable Message Requirements, including all applicable form, content and unsubscribe requirements; (C) send Messages only to individuals from whom Customer has obtained all necessary and legally required consent to do so in accordance with its obligations under Applicable Message Requirements (“Subscribers”); and (D) promptly notify Voyage Mobile of all requests made by Subscribers to stop receiving Messages from Voyage Mobile on behalf of Customer; and (vi) any previously collected list of Subscribers has been collected in accordance with Applicable Message Requirements. Customer’s responsibilities as set forth in this Section and this Agreement will remain the sole responsibility and liability of Customer notwithstanding that Voyage Mobile may offer Templates, advice, guidance or suggestions relating to any of the matters that are Customer’s responsibility and notwithstanding that Voyage may be engaged to provide services related to such responsibilities of Customer.
b. User Content and Restrictions. Customer may also have the opportunity to post, upload, display, or share other content on or through the Service (together with Data and Messages the “User Content”). Customer may not post or send any User Content that: is unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy rights or right of publicity, or otherwise objectionable; constitutes or promotes sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; contains any material that could give rise to any civil or criminal liability under any applicable laws, rules, or regulations or that otherwise may be in conflict with these Terms; infringes upon, misappropriates, or otherwise violates any intellectual property rights or other rights of a third party; encourages criminal conduct; contains false, misleading, fraudulent, or deceptive claims or content; gives the impression that it emanates from or is endorsed by Voyage Mobile or any other person or entity, if this is not the case; or contains any virus, malware, spyware, or other harmful content or code.
c. Rights to User Content. Customer and its Authorized Users hereby grants to Voyage Mobile an irrevocable, perpetual, non-exclusive, transferable, sublicensable, royalty-free, worldwide right and license to use, reproduce, display, perform, distribute, and prepare derivative works of any User Content Customer or its Authorized Users post on or send through the Service for any purpose and in all forms and all media, whether now known or that become known in the future, and you waive any and all claims that Customer or its Authorized Users may have now or may hereafter have in any jurisdiction to so-called “rental rights,” “moral rights,” and all rights of “droit moral” in that User Content, even if the User Content is altered or changed in a manner not agreeable to Customer or its Authorized Users. If Customer or its Authorized Users post User Content, Customer and its Authorized Users represent and warrant to Voyage Mobile that each own or control all rights in and to such User Content and have the right to grant the rights above to Voyage Mobile.
d. No Responsibility. Customer agrees that it is solely responsible for its User Content, and acknowledges and agrees that Voyage Mobile is not responsible for, and does not endorse, any User Content. By making use of the Services, you affirmatively represent and warrant to Voyage Mobile that any and all Messages and/or User Content that you post, upload, display, or share, including but not limited to all products or services that you promote, through use of the Services or otherwise shall be lawful and permissible in all jurisdictions in which such Messages and/or User Content are transmitted, viewed or received.
e. No Obligation to Prescreen, Monitor or Use. Voyage Mobile does not have, and does not undertake, any obligation to prescreen, monitor, edit, or remove any User Content posted on or through the Service. However, Voyage Mobile retains the right (but not the obligation), in its sole discretion and for any reason, to prescreen, monitor, edit, remove, or move User Content posted on or through the Service. Customer acknowledges and agrees that Voyage Mobile is not obligated to post, keep, or use User Content.
a. Fees. Customer will pay Voyage Mobile the fees set forth in the Order Form (“Fees”). All Fees will be due and payable upon receipt of the applicable invoice issued by Voyage Mobile. All Fees are non-cancellable and non-refundable. Late Fee payments will accrue interest at the rate of .83% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
b. Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any applicable taxing authorities (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the rights and benefits it receives under this Agreement. If Voyage Mobile has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 5.B, then Voyage Mobile will invoice Customer and Customer will pay that amount unless Customer provides Voyage Mobile with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Voyage Mobile is solely responsible for Taxes assessable against Voyage Mobile based on its income, property and employees.
6. Electronic Communications.
The communications between Customer and Voyage Mobile via the Service use electronic means. For contractual purposes, Customer and its Authorized Users consent to receive communications from Voyage Media in electronic form, and Customer and its Authorized Users agree that all terms and conditions, agreements, notices, disclosures, and other communications that Voyage Mobile may provide to Customer and its Authorized Users electronically satisfy any legal requirement that such communications be in writing.
a. Definition. As used herein, “Confidential Information” means all confidential information disclosed by Voyage Mobile (“Disclosing Party”) to the Customer or its Authorized Representatives (“Receiving Party”), that is marked in writing as “confidential” or by a similar designation or that otherwise should be considered confidential information based on the nature of the information and circumstances of disclosure. For clarity, Confidential Information also includes pricing, the non-public parts of the Service, its user interface, design and layout, and any related non-public specifications, documentation or technical information that Voyage Mobile provides to Customer and/or Authorized Users. Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party.
b. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care). The Receiving Party may only use Confidential Information of the Disclosing Party to perform its obligations or exercise its rights under this Agreement. Except as expressly authorized by the Disclosing Party in writing, the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees, contractors or agents who need such access to perform obligations under this Agreement and who are bound to terms as least as restrictive as those in this Agreement. Receiving Party may not disclose the terms of this Agreement to any third party (other than its affiliates and their legal counsel and accountants) without the other party’s prior written consent.
c. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
9. Term; Termination.
a. Term. This Agreement will continue during the period set forth on the Order Form (“Initial Term”). Thereafter, this Agreement will automatically renew for additional consecutive terms equal in length to the Initial Term (each, a “Renewal Term,” together with the Initial Term, the “Term”), unless either party provides to the other a written notice, at least thirty (30) days prior to the expiration of the then-current Renewal Term, of its intention not to renew this Agreement.
b. Termination. Either party may terminate this Agreement upon thirty (30) days prior written notice if the other party is in material breach of this Agreement and the breaching party fails to remedy the breach within the thirty (30)-day notice period.
c. Effect of Termination. Upon expiration or termination of this Agreement for any reason, the licenses granted to Customer and its Authorized Users hereunder will automatically terminate and all Fees owed pursuant to Section 5 will become immediately due and payable.
d. Survival. The provisions of Sections 2.B, 2.C, 2.D, 2.E, 3, 5.A, 5.B, 6, 7, 8, 9.C, 9.D, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 and all defined terms used in those Sections will survive any expiration or termination of this Agreement.
10. Change and Suspension.
a. Changes to the Services. Voyage Mobile reserves the right to make changes to, suspend, or discontinue (temporarily or permanently) the Service or any portion thereof at any time. Customer agrees that Voyage Mobile will not be liable to Customer or to any third party for any such change, suspension, or discontinuance.
b. Suspension/Termination of Access. Voyage Mobile has the right to deny access to, and to suspend or terminate your access to, the Service or to any features or portions thereof if Customer or its Authorized Users violate this Agreement, risk potential harm to the Service, or other users of the Service. In the event that we suspend or terminate your access to the Services, Customer and its Authorized Users will continue to be bound by the Agreement that were in effect as of the date of your suspension or termination.
11. Warranty; Disclaimer; Limitation of Liability.
a. Customer Warranty. Customer, both on behalf of itself and its Authorized Users, represents, warrants, and covenants that: (i) it owns or otherwise has sufficient rights to the User Content to grant the license set forth in this Agreement; (ii) the posting and use of User Content on or through the Platform does not and will not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual property rights, or other rights of any person or entity; and (iii) the upload, posting or other submission of User Content to the Platform does not and will not result in a breach of contract between Customer and any third party; and (iv) it will not knowingly collect personally identifiable information from children under thirteen (13) when using the Service;
b. DISCLAIMER OF WARRANTIES. THE SERVICE IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, AND VOYAGE MOBILE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, (I) TEMPLATES ARE PROVIDED BY VOYAGE MOBILE FOR CONVENIENCE ONLY AND CUSTOMER SHOULD CONFER WITH ITS OWN COUNSEL AS TO WHETHER ANY LANGUAGE IN THE TEMPLATES IS SUFFICIENT FOR LEGAL PURPOSES OR TO MEET CUSTOMER’S OBLIGATIONS UNDER APPLICABLE LAWS, INCLUDING APPLICABLE MESSAGE REQUIREMENTS; (II) CUSTOMER MAY NOT RELY UPON THE PROVISION OF SAMPLE LANGUAGE OR OTHER CONTENT IN ANY TEMPLATE AS A REPRESENTATION THAT SUCH LANGUAGE OR CONTENT SATISFIES ANY APPLICABLE LEGAL REQUIREMENTS; AND (III) VOYAGE MOBILE IS A CONDUIT FOR MESSAGES AND MESSAGES CONTENT SENT OVER THE PLATFORM BY OR ON BEHALF OF CUSTOMER AND HAS NO RESPONSIBILITY FOR SUCH MESSAGES OR MESSAGE CONTENT.
c. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL VOYAGE MOBILE OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICE, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE, OR LOSS OF DATA, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. IF, NOTWITHSTANDING THE PROVISIONS OF THIS SECTION 8.C, VOYAGE MOBILE IS FOUND LIABLE FOR ANY LOSS, DAMAGE, OR INJURY UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, IN NO EVENT WILL VOYAGE MOBILE’S AGGREGATE LIABILITY TO CUSTOMER OR ANY THIRD PARTY EXCEED $100. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE. USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK.
d. Exclusions. Some jurisdictions do not allow the exclusion or limitation of certain warranties or consequential damages, so some of the exclusions and/or limitations in this Section 8 may not apply to Customer.
12. Third Party Disputes.
Any dispute Customer has with any third party in connection with Customer’s or its Authorized Users’ use of the Service is directly between Customer and such third party. Accordingly, to the fullest extent permitted by law, Customer hereby irrevocably releases Voyage Mobile 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.
Customer agrees to indemnify, defend, and hold Voyage Mobile and its officers, directors, employees, agents, licensors, and service providers harmless from and against any claims, liabilities, losses, damages, judgments, awards, costs, and expenses (including reasonable attorneys’ fees) arising out of or resulting from your use of the Services and/or any Content, including your sending of any Messages, or any violation of this Agreement, applicable law, the breach of any warrant or representation contained herein, or Applicable Message Requirements. Voyage Mobile reserves the right, at its own expense, to assume the exclusive defense and control of any action subject to indemnification by Customer, and in such event, Customer agrees to cooperate with Voyage Mobile in defending such action. Customer’s indemnification, defense, and hold harmless obligations will survive the expiration or termination of Customer’s or its Authorized Users’ use of the Service and this Agreement.
14. Copyright Complaints and DMCA Copyright Agent.
Voyage Mobile complies with the copyright notice-and-takedown procedures set out in the United States Digital Millennium Copyright Act (DMCA), which applies to content reported and removed for violating U.S. copyrights. Please note that any notice or counter-notice you submit must be truthful and must be submitted under penalty of perjury. A false notice or counter-notice may give rise to personal liability. You may therefore want to seek the advice of legal counsel before submitting a notice or a counter-notice. We may share any notices and counter-notices submitted to us with others including your contact information, and by submitting any notices, you agree you have no expectation of privacy in your submission.
Content owners of copyrighted material or their representing agents may submit a DMCA notice to our registered Copyright Agent if they believe that infringing activity has taken place on our Service. The abuse team will only consider valid reports of infringement, and you may submit a complete DMCA notice that features all of the points described below only if the representing party sending the request is the content owner or the authorized agent acting on behalf of the copyright owner. If you are not sure if Voyage Mobile has control over the allegedly infringed content, please obtain legal representation before contacting us. To be effective under the DMCA, any notification of claimed infringement must be in a written communication that includes substantially the following which must include a certification made under penalty of perjury:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, as well as information sufficient for Voyage Mobile to determine the legitimacy of the signature and the identity of the signatory;
Identification of the copyrighted work claimed to have been infringed, or, if a single notification covers multiple copyrighted works at a single online site, a representative list of such works at that site, including citation to the applicable copyright registrations where available;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Voyage Mobile to locate the material, including a timestamp and visible identification of the material in a screenshot or comparable medium, with all metadata intact, as well as a hyperlink or URL to the website or online content at issue;
Information reasonably sufficient to permit Voyage Mobile to contact the complaining party, including an email address, telephone number, and, if available, physical mail address;
A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Any such notifications of claimed infringement must be sent to the below contact with the subject line “DMCA NOTICE:”
1209 Orange Street
Wilmington, DE 19801
Please note if any notification of claimed infringement does not meet the above requirements, Voyage Mobile has no responsibility to respond to or act on any such defective notification of claimed infringement.
If you receive a notification of claimed infringement, you may submit a counter notification to us under the DMCA. It must include the following, which includes a certification made under penalty of perjury:
Your physical or electronic signature, as well as information sufficient for Voyage Mobile to determine the legitimacy of the signature and the identity of the signatory;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the Federal District court (i) in the judicial district where your address is located if the address is in the United States, or (ii) located in the Northern District of California, if your address is located outside the United States, and that you will accept service of process from the Complainant submitting the notice or the Complainant’s authorized agent.
Any such counter notification must be sent to:
Keating Muething & Klekamp PLL
One East Fourth Street, Suite 1400
Cincinnati, OH 45202
Phone: (513) 579-6527
15. Third Party Materials.
The Service may display, include, or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services (collectively, “Third Party Materials”). Customer acknowledges and agrees that Voyage Mobile is not responsible for any Third Party Materials, including their accuracy, completeness, timeliness, validity, legality, decency, quality, or any other aspect thereof. Voyage Mobile does not assume and will not have any liability to Customer or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to Customer and its Authorized Users, and Customer and its Authorized Users access and use them at entirely at their own risk and subject to such third parties’ terms and conditions.
16. Third Party Platforms.
Voyage Mobile may provide the Service through third- party websites, operating systems, platforms, and portals (collectively, “Third Party Platforms”). Additional terms and conditions may apply to Customer and its Authorized Users with respect to the use of Third Party Platforms, which are not under Voyage Mobile’s control. Voyage Mobile does not assume any responsibility or liability for use of such Third Party Platforms.
17. Arbitration agreement.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND IMPACTS THE WAY THAT YOU AND WE BRING CLAIMS AGAINST EACH OTHER AND HOW THOSE CLAIMS ARE DECIDED.
a. Dispute Resolution. The parties agree that any dispute or claim relating in any way to the interpretation, applicability, enforceability, or formation of this Agreement or Customer’s or its Authorized Users’ use of the Service, will be resolved exclusively though final and binding arbitration, rather than in court. This agreement to arbitrate is intended to be broadly interpreted and includes any dispute, claim, or controversy between the parties regarding any aspect of the parties’ relationship or any conduct or failure to act on Voyage Mobile’s part, including claims based on breach of contract, tort (for example, a negligence or product liability claim), violation of law or any claims based on any other theory, and including those based on events that occurred prior to the date of this Agreement, with the following exceptions:
i. Customer or Voyage Mobile may assert a claim or action in court, subject to the provisions of Section 17(A)(iii), below, provided that the relief sought in any such action does not exceed $10,000, exclusive of interest and costs.
ii. Any claim regarding the validity, protection or enforcement of a party’s intellectual property rights (such as its patent, copyright, trademark, trade secret, or moral rights, but not including its privacy or publicity rights) must be brought in court; and
iii. In the event this agreement to arbitrate is for any reason held to be unenforceable, any dispute or claim against us (except for small-claims court actions) may be commenced only in a federal or state court located in Los Angeles County, California, and we both consent to the jurisdiction of and venue in those courts for such purposes. The parties both also consent to the jurisdiction of and venue in those courts for purposes of any claim regarding the validity, protection or enforcement of a party’s intellectual property rights (excluding its privacy or publicity rights). Customer agrees to waive any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts. This agreement to arbitrate is governed by the Federal Arbitration Act, including its procedural provisions, in all respects.
b. Prohibition of Class Actions and Non-Individualized Relief. Any arbitration will be conducted by the parties in their individual capacities only and not as a class action or other representative action. Unless both parties agree otherwise, the arbitrator may not consolidate or join more than one person's or party's claims, and may not otherwise preside over any form of a consolidated, representative, class, or private attorney general action or proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party's individual claim(s). If this Section 14.B is found to be unenforceable, then all of Section 14, other than subsection 14.H, will be null and void and neither party will be entitled to arbitrate the dispute.
c. Arbitration Rules. The arbitration will be administered by the American Arbitration Association (“AAA”) and will be governed by AAA’s Consumer Arbitration Rules (“AAA Rules”), as modified by this Agreement. The AAA Rules may be accessed at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity, and must enforce the same limitations stated in this Agreement as a court would. The arbitrator will issue an award decision in writing but will not provide an explanation for the award unless either party requests one. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
d. Demand for Arbitration. A party who intends to arbitrate (“Claimant”) must first send to the other party (“Respondent”) a written notice, entitled “Demand for Arbitration” (“Demand”). The Demand must: (1) briefly explain the dispute; (2) provide the Claimant’s name and address, the address of the Claimant’s representative (if the Claimant has one), and the Respondent’s name and address (for Voyage Mobile, see below); (3) specify the amount of money in dispute, if applicable; (4) if the Claimant is requesting an in-person hearing, identify the requested location for the hearing; and (5) include a statement of what the Claimant wants. The Claimant must send one copy of the Demand to AAA at the same time the Claimant sends it to the Respondent. When sending a copy of the Demand to AAA, the Claimant must also include a copy of this arbitration agreement and any amendments to it (see Section 14.G) and the then current filing fee required by the AAA. The Demand must be sent to the AAA at the following address:
American Arbitration Association
Case Filing Services
1101 Laurel Oak Road, Suite 100
Voorhees, NJ 08043
Alternatively, the Demand may be filed with the AAA online using : AAA WebFile: https://www.adr.org.
Any Demand to Voyage Mobile should be addressed to:
Voyage Mobile, Inc.
1209 Orange Street
Wilmington, DE 19801
Attention: Client Support Team
e. Filing, Administration and Arbitrator Fees. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Section 14 . If the value of the relief sought is $10,000 or less, at your request, Voyage Mobile will pay all filing, administration, and arbitrator fees associated with the arbitration, but not Customer’s attorneys’ fees. Any request for payment of filing, administration, and arbitrator fees by Voyage Mobile should be submitted by mail to the AAA along with the Demand and Voyage Mobile will make arrangements to pay all such necessary fees directly to the AAA. In the event that the arbitrator determines that the claim(s) Customer asserts in the arbitration are frivolous, Customer agrees to reimburse Voyage Mobile for all fees associated with the arbitration paid by Voyage Mobile on Customer’s behalf that Customer otherwise would be obligated to pay under the AAA Rules.
f. Opt-Out Procedure. If Customer does not wish to be bound by the arbitration provisions in this section 14, Customer must notify Voyage Mobile in writing within 30 days of the date that Customer accept this agreement for the first time. Customer may opt out by mailing a written notice to Voyage Mobile at the address set forth in subsection 14.D. Customer’s written notification to Voyage Mobile must include Customer’s name, mailing address, e-mail address, phone number and Voyage Mobile account number as well as a clear statement that Customer does not wish to resolve disputes with Voyage Mobile through arbitration. If Customer opt out of the arbitration provisions in this section 14 , all other provisions of this Agreement will continue to apply, including section 14.H, below.
g. Amendment to Arbitration Provisions. Notwithstanding any provision in this Agreement to the contrary, the parties agree that if they make any amendment to the arbitration provisions in this Section 14 in the future (other than an amendment to any notice address or site link provided herein), that amendment shall not apply to any claim that was filed in a legal proceeding against Voyage Mobile prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims that have arisen or may arise between the parties. Voyage Mobile will notify Customer of amendments to the arbitration provisions of this Section 14 by posting the amended terms on www.voyagesms.com/terms-and-conditions, and/or by providing notice to Customer by email, at least 30 days before the effective date of the amendments. If Customer does not agree to the amended terms, Customer may cancel the Service and close its account with Voyage Mobile within the 30-day period and Customer will not be bound by the amended terms.
h. Jury trial and class action waiver. If for any reason a claim proceeds in court rather than in arbitration, the parties each unconditionally waive any right to a jury trial. This means that any claim would be decided by a judge, not a jury. Further, with respect to any claim that proceeds in a court, the parties agree that each may bring claims against the other only on an individual basis and not as a plaintiff or class member in any purported class, or representative or private attorney general action or proceeding.
a. Federal Government End Use Provisions. Voyage Mobile provides the Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Service include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Voyage Mobile to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
b. Export Regulations. Customer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations maintained by the Department of State. Specifically, Customer covenants that it will not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any products, service, or technology (including products derived from or based on such technology) received from Voyage Mobile under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
c. Injunctive Relief. Customer agrees that any violation or threatened violation of this Agreement may cause irreparable injury to Voyage Mobile, entitling Voyage Mobile to seek injunctive relief in addition to all legal remedies.
d. Geographic Restrictions. Voyage Mobile is based in the State of California in the United States. Voyage Mobile makes no claim that the Services or the Content are accessible or appropriate outside of the United States. Access to and use of the Services may not be legal by certain persons or in certain countries. If Customer accesses the Services from outside the United States, Customer does so on its own initiative and are responsible for compliance with local laws.
e. Governing Law; Jurisdiction and Venue. This Agreement and any dispute or claim arising out of or related to this Agreement, their subject matter, or their formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of California, other than such laws and case law that would result in the application of the laws of a jurisdiction other than the State of California.
f. Limitation on Time to File Claims. Any cause of action or claim Customer may have arising out of or relating to this Agreement or the Service must be commenced within one (1) year after the cause of action or claim accrues, otherwise, such cause of action or claim is permanently barred.
g. Assignment. You may not assign this Agreement or any of the rights or licenses granted hereunder without the prior express written consent of Voyage Mobile. Voyage Mobile may assign this Agreement, including all its rights hereunder, without restriction. For the purposes of this Agreement, an assignment includes, without limitation, any merger, acquisition of stock or assets, change of control or similar transaction.
h. Successors and Assigns. Notwithstanding Section 15.D, this Agreement will inure to the benefit of the parties’ successors and assigns.
i. Waiver and Severability. Voyage Mobile’s failure to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of these Terms will continue in full force and effect.
j. Customer Marks. Voyage Mobile may use Customer’s name and logo (collectively, the “Customer Marks”) in both print and electronic media to identify Customer as a Voyage Mobile customer. If Customer in its reasonable discretion determines that Voyage Mobile’s use of the Customer Marks is derogatory, defamatory or detrimental to Customer’s business or reputation, then Customer may revoke the right granted to Voyage Mobile in this Section upon providing written notice to Voyage Mobile.
If you have any questions about the Services or these Terms, please call us at (877) 886-9243, email us at firstname.lastname@example.org or write to us at:
Voyage Mobile, Inc.
1209 Orange Street
Wilmington, DE 19801
Attention: Client Support Team
20. Notice to California Residents. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.