This agreement also includes a jury trial waiver.
3. Ownership. The Services (including the Content) are owned by Voyage Mobile and its licensors and are protected under copyright, trademark, and other applicable United States and international laws and treaties. Without limiting the foregoing, the trademarks, service marks, and logos displayed on the Site are registered and unregistered marks of Voyage Mobile and its licensors. You acknowledge and agree that, as between you and Voyage Mobile, Voyage Mobile is and shall remain the sole owner of the Services and the Content, including, without limitation, all patents, copyrights, trademarks, trade secrets, and other intellectual property and proprietary rights therein and thereto.
4. Account Registration and Security. Access to and use of certain Services may require you to register for an account. You agree to provide true, accurate, current, and complete information about yourself as prompted by the applicable registration or log-in form, and you are responsible for keeping such information up to date. You are responsible and liable for all activities conducted through your account, regardless of who conducts those activities. You may not share your account with anyone or allow anyone else to access or use your account. You are responsible for maintaining the confidentiality of your account information, including your username and password. You agree to immediately notify Voyage Mobile of any unauthorized use of your account, or any other breach of security. We are not liable for any loss or damage arising from your failure to protect your username or password.
5. Messaging Obligations; User Content.
5.1. Messaging Obligations. The Services may enable users to upload, display, and send email, text, and other electronic messages (collectively, “Messages”) to recipients from whom you or your organization has obtained all legally required consents for such communication (“Subscribers”). You represent, warrant, and covenant that when using the Services to send Messages, you will (i) comply with all applicable federal, state, and local laws, regulations, and rules governing such 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, and state and local equivalents; (ii) comply with all applicable industry best practices; (iii) send Messages only to individuals from whom your Organization has obtained the legally required consent to do so (“Subscribers”); and (iv) promptly notify Voyage Mobile of all requests made by Subscribers to stop receiving Messages from Voyage Mobile or your Organization. As used in this Section, “Organization” means any company, entity or organization on whose behalf you access and use the Site to send Messages to Subscribers.
5.3. Rights You Grant to Us. You hereby grant 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 you post on or send through the Services 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 you 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 you. If you post User Content, you represent and warrant to Voyage Mobile that you own or control all rights in and to such User Content and have the right to grant the rights above to us
5.4. No Responsibility. You agree that you are solely responsible for your User Content, and you acknowledge and agree that Voyage Mobile is not responsible for, and does not endorse, any User Content.
5.5. 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 Services. 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 Services. You acknowledge and agree that we are not obligated to post, keep, or use your User Content.
5.6. 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 Services. 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 Services. You acknowledge and agree that we are not obligated to post, keep, or use your User Content.
6. Electronic Communications. The communications between you and Voyage Mobile via the Services use electronic means. For contractual purposes, you consent to receive communications from us in electronic form, and you agree that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
9. Change and Suspension.
9.1. Changes to the Services. Voyage Mobile reserves the right to make changes to, suspend, or discontinue (temporarily or permanently) the Services or any portion thereof (including any Content) at any time. You agree that Voyage Mobile will not be liable to you or to any third party for any such change, suspension, or discontinuance.
10. Disclaimer; Limitation of Liability.
10.1. Disclaimer of Warranties. The services and the content are 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. Neither voyage mobile nor any person associated with voyage mobile makes any representation or warranty with respect to the completeness, security, reliability, quality, accuracy, or availability of the services or any content. Without limiting the foregoing, neither voyage mobile nor anyone associated with voyage mobile represents or warrants that the services or the content will be accurate, reliable, error-free, or uninterrupted, that defects will be corrected, that the services, content, or the servers that make them available are free of viruses or other harmful components, or that the services or the content will otherwise meet your needs or expectations.
10.3. 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 11 may not apply to you.
11. Third Party Disputes. Any dispute you have with any third party in connection with your use of the services or the application is directly between you and such third party. Accordingly, to the fullest extent permitted by law, you hereby irrevocably release 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.
13. Copyright Infringement. Voyage Mobile take claims of copyright infringement seriously. It is Voyage Mobile’s policy to disable and/or terminate the accounts of users who are repeat infringers. We will respond to notices of alleged copyright infringement that comply with applicable law. If you believe any Content accessible on the Site infringes your copyright, you may request removal of such Content (or access thereto) by submitting written notification to our copyright agent designated below. In accordance with the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”), your written notice of alleged copyright infringement must include substantially the following:
- your physical or electronic signature;
- identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Site, a representative list of such works;
- identification of the Content you believe to be infringing in a sufficiently precise manner to allow us to locate that Content;
- adequate information by which we can contact you (including your name, postal address, telephone number and, if available, email address);
- a statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent or the law;
- a statement that the information in your written notice is accurate; and
- a statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Our designated agent to receive DMCA notices is:
1209 Orange Street
Wilmington, DE 19801
*NOTE: This contact information is for inquiries regarding potential copyright infringement only.
If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA notice may not be effective.
Please be aware that if you knowingly materially misrepresent that Content on the Site is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA.
14. Third Party Materials. The Services 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”). You acknowledge and agree 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 you or any other person or entity for any Third Party Materials. Third Party Materials and links thereto are provided solely as a convenience to you, and you access and use them at entirely at your own risk and subject to such third parties’ terms and conditions.
15. Third Party Platforms. Voyage Mobile may provide the Services to you through third- party websites, operating systems, platforms, and portals (collectively, “Third Party Platforms”). Additional terms and conditions may apply to you with respect to your use of Third Party Platforms, which are not under Voyage Mobile’s control. Voyage Mobile does not assume any responsibility or liability for your use of such Third Party Platforms.
16. 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.
You may assert claims in your local small claims court if its rules permit it;
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
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. We 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). You agree to waive any and all objections to the exercise of jurisdiction over you 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.
16.2. 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 you and we 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 specific provision is found to be unenforceable, then all of section 16, other than subsection 19.8, will be null and void and neither of us will be entitled to arbitrate our dispute.
16.3. 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 you or Voyage Mobile 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.
16.4. 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 19.7) 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:
16.5. 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 16 . If the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration, but not your 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 your 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) you assert in the arbitration are frivolous, you agree to reimburse us for all fees associated with the arbitration paid by Voyage Mobile on your behalf that you otherwise would be obligated to pay under the AAA Rules.
16.6. Opt-Put Procedure. If you do not wish to be bound by the arbitration provisions in this section 16 , you must notify voyage mobile in writing within 30 days of the date that you accept this agreement for the first time. You may opt out by mailing a written notice to voyage mobile at the address set forth in subsection 19.4. Your written notification to voyage mobile must include your name, mailing address, e-mail address, phone number and voyage mobile account number as well as a clear statement that you do not wish to resolve disputes with voyage mobile through arbitration. If you opt out of the arbitration provisions in this section 16 , all other provisions of this agreement will continue to apply, including section 19.8, below.
16.7. Amendment to Arbitration Provisions. Notwithstanding any provision in this Agreement to the contrary, you and we agree that if we make any amendment to the arbitration provisions in this Section 16 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 you and Voyage Mobile. We will notify you of amendments to the arbitration provisions of this Section 16 by posting the amended terms on www.voyagesms.com/terms-and-conditions, and/or by providing notice to you by email, at least 30 days before the effective date of the amendments. If you do not agree to the amended terms, you may cancel your Services and close your account with Voyage Mobile within the 30-day period and you will not be bound by the amended terms.
16.8. Jury trial and class action waiver. If for any reason a claim proceeds in court rather than in arbitration, you and voyage mobile 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, you and we agree that each of us 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.
17.1. Geographic Restrictions. Voyage Mobile is based in the State of California in the United States. We make no claims 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 you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws.
Voyage Mobile, Inc.
1209 Orange Street
Wilmington, DE 19801
Attention: Client Support Team
19. 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.