1.0 Services
1.1 Component of Agreement
These “Terms of Use” are part of the agreement between you (“you” or the “Customer”) and Five Quantum Bits, LLC (“photovideoeditor”) and contain some of the terms and conditions for your use of, as applicable, photovideoeditor’s website (photovideoeditor.com, or “Website”), the photovideoeditor “mobile app,” the photovideoeditor messaging service (collectively, with photovideoeditor’s Website and mobile app, the “Platform”) and any other current or future photovideoeditor products and services (collectively, the “Services”). This agreement also includes photovideoeditor’s Acceptable Use Policy (“AUP”), Anti-Spam Policy, Privacy Policy, AI Features Addendum, and Autopay Authorization (collectively, the “Agreement”). Current versions of photovideoeditor’s Terms of Use, AUP, Anti-Spam Policy, Privacy Policy, AI Features Addendum, and AutoPay Authorization can be accessed by clicking on this hyperlink photovideoeditor.com/policies. photovideoeditor may revise and update its Terms of Use and the content on the Website from time-to-time. All changes are effective immediately when posted on photovideoeditor’s Website and apply to all access to and use of the Platform and the Services thereafter. photovideoeditor also reserves the right to withdraw or amend the Platform, and any Service, in photovideoeditor’s discretion and without notice. Certain material on the Platform may become out of date at any given time, and photovideoeditor is under no obligation to update such material. Your continued use of the Platform and the Services following the posting of revised terms means that you accept and agree to all changes. If at any time you find the Agreement unacceptable, you agree to immediately leave the Platform and cease all use of the Services. If there is a conflict or discrepancy between any aspect of photovideoeditor’s Agreement and any communications by one of photovideoeditor’s employees, either verbally or in writing, the Agreement will govern. Services can only be accessed by persons physically located in the United States or Canada.
1.2 Acceptance of the Agreement and Acknowledgement of Fees
By (i) accessing the Platform, (ii) using the Services, (iii) signing a sales order form, or (iv) acknowledging these Terms of Use, you agree you have read and understood this Agreement and agree to: (i) comply with all terms and conditions of the Agreement and (ii) pay all fees and charges for the Services, as shown in the plan you selected when you signed up for the Services, in your quote and/or in the account plan and billing page available when you log in, including usage associated with any automated purchase options you have engaged through your account, as may be adjusted in accordance with the Terms of Use, from the effective date of your account to the date of termination of the account and you agree that the Agreement will apply to your account and your use of the Services. You agree that photovideoeditor’s records demonstrating your acceptance of photovideoeditor’s fees by any of the foregoing means will be dispositive in any fee dispute. It is your responsibility to acquire prior to the commencement of the Agreement and at your expense, any technology (e.g., computers and software) required or desirable to access and use the Platform and Services. YOUR USE OF THE PLATFORM AND/OR SERVICES CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO COMPLY WITH THE AGREEMENT.
1.3 Account Opening
You agree that you are providing true, accurate, current, and complete information regarding your identity, contact information, intended use of the Services, and all other information you provide photovideoeditor when creating your photovideoeditor account and using the Services. You also agree to update your account information promptly, no later than five business days, and as necessary, to keep it current and accurate. photovideoeditor reserves the right to obtain, verify, and record information that identifies each person or entity that opens an account. If you open an account, photovideoeditor may ask for your name, address, taxpayer identification number, and other information that will allow us to identify you and/or your beneficial owner(s). Additionally, photovideoeditor may take certain steps to verify your identity and/or the identity of your beneficial owner(s).
1.3.1 Account Usernames
photovideoeditor reserves the right to disallow, cancel, remove, or reassign certain usernames in appropriate circumstances, as determined by photovideoeditor in its discretion, and may, with or without prior notice, suspend or terminate your account if activities occur on your account which in photovideoeditor’s discretion would or might constitute a violation of this Agreement, cause damage to or impair the Platform or Services, infringe or violate any third-party rights, damage photovideoeditor’s reputation, or violate any applicable laws or regulations or the Guidelines, defined below. You acknowledge that your account is personal to you and agree not to provide any other person with access to your account using your username, password, or other security information. You are responsible for any liability arising from use of your account, username, password or security information. You may be liable for any losses incurred by photovideoeditor, its officers, directors, employees, consultants, agents, and representatives due to someone else’s use of your account or password. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach or misuse of photovideoeditor’s Platform or Services. You agree not to use the account, username, or password of someone else at any time.
1.4 Commencement of Services
Your account will be deemed active and payment therefor will commence when you first receive access to the Platform, although your payment obligations may be subject to a delay for “trial” periods as set forth in Section 9.4. All fees are deemed earned on the first day of each billing cycle. Your ability to access the Platform as demonstrated by photovideoeditor’s records constitutes proof of delivery of photovideoeditor’s Services. All fees are payable and deemed earned on the first day of each billing period.
1.5 Account Statements
Upon receipt of your monthly or periodic statement (which may include a record of transactions), you will exercise reasonable care and promptness in examining the statement. Customer shall notify photovideoeditor of any good faith billing disputes within sixty (60) days of Customer’s receipt of any invoice being disputed. Customer’s notice shall be sent to payments@photovideoeditor.com and shall include a written explanation and accounting sufficiently detailed and substantiated to enable photovideoeditor to investigate Customer’s billing dispute. Pending the parties’ good faith efforts to resolve any such dispute, Customer agrees to pay all undisputed amounts.
1.6 Account Security
You are responsible for the security of your access credentials and all activities that occur through the use of your access credentials. The following Security Procedures are offered by photovideoeditor to each Customer for the purpose of accessing the Platform or Services by authorized account users. The Security Procedures are not used to detect an error in the use of the Platform or Services.
1.6.1 Level One Security Procedures
The Website and mobile app are photovideoeditor’s secured delivery channels. photovideoeditor's encryption systems encipher information transmitted from the customer's computer to us. In general, the procedure includes access controls such as an identification code and a confidential password that allows the Customer to access the Platform and also includes encryption during the process of transmitting data to photovideoeditor. photovideoeditor may require other authentication to access the Platform. By using the Level One Security Procedures, you have accepted as commercially reasonable pursuant to Section 4A-202(c) of the New York Uniform Commercial Code that security procedure as described above or as modified from time to time by us. The Level One Security Procedure will be used for the purpose of verifying that a person is authorized to access your account, utilize the Services and accrue fees on your behalf.
1.6.2 Level Two Security Procedures
Level Two Security Procedures to access a Customer account may be agreed between eligible Customers and photovideoeditor and will involve the use of a call-back procedure and/or the use of an identification code by the Customer (or their authorized users). Call Back Security Procedures may be used for the purpose of verifying that a user is authorized to access the Customer account. Notwithstanding the foregoing, Customer acknowledges that photovideoeditor may require two factor authentication for Customer’s use of the Services.
1.6.3
Whenever a photovideoeditor Security Procedure is used to access your account, you agree to be bound by and pay any photovideoeditor Service fees incurred, whether or not authorized by you. photovideoeditor will not be liable for any loss or damage arising from use of your log-in credentials. You agree to notify photovideoeditor immediately at support@photovideoeditor.com if you suspect or know of any unauthorized use of your log-in credentials or any other breach of security with respect to your account. Each authorized user will have his or her own user id and password. Sharing of such access information is a primary contributor to unauthorized use. In the event of unauthorized access to your account, photovideoeditor will assist you to change your access credentials. In order to induce photovideoeditor to honor your access to the Platform and requests for Services, you hereby agree to indemnify and hold photovideoeditor, its successors, assigns, directors, officers, employees and agents harmless for all losses, costs, damages, expenses (including attorney's fees) and liability for any claim or demand occasioned by or action brought by virtue of any misconduct, negligence, action or omission on the part of any individual who has been listed as a person authorized to act on your behalf in any document or communication provided by you or anyone purporting to act on your behalf to photovideoeditor.
1.7 Reimbursement of photovideoeditor in the Event of a Dispute
You agree to be liable to photovideoeditor for any losses, costs, or expenses (including, without limitation, attorney's fees and court costs) photovideoeditor incurs as a result of any dispute involving your account or use of the Services. In addition to any other rights that photovideoeditor may have in law or equity, you authorize photovideoeditor to charge any such losses, costs, or expenses to your account and your credit card without prior notice to you. This obligation includes without limitation disputes between you and photovideoeditor involving the account and situations where photovideoeditor becomes involved in disputes between you and an authorized person, or a third-party relating to claims of intellectual property infringement or any alleged violation of this Agreement, including its AUP or Anti-Spam Policy (see Section 3.4).
1.8 Account Termination
In all cases, account fees and charges are deemed earned and payable to photovideoeditor through the end of the billing cycle in which termination occurs. Below is a non-exhaustive list of reasons why photovideoeditor may in its discretion terminate your account. If:
1.8.1
A significant number of messages sent to the mobile numbers you provide are returned as undeliverable, then photovideoeditor may in its discretion terminate your account immediately without notice to you and without any liability to you or any third party.
1.8.2
Your conduct is in breach of the Agreement, including its AUP or Anti-Spam Policy;
1.8.3
You distribute any Prohibited Content (defined in Section 3.2);
1.8.4
Your Content contains any Malicious Code (defined in Section 3.3);
1.8.5
You have been found to be a “repeat infringer” of intellectual property rights (defined in Section 3.4.1); or
1.8.6
You allow unauthorized access to the Services.
1.9 Service Level and Third Party Reliance
Uptime for the Platform is 99.9%, excluding planned maintenance, emergency downtime, and any Force Majeure Event. photovideoeditor may provide and/or designate certain third parties to provide ancillary services in connection with the Platform or the Services, and/or links to the websites or products or services of others (“Third-Party Services”). For example, eligible customers can subscribe to an optional call-forwarding feature, subject to the terms and conditions agreed upon when engaging that optional feature, provided by the underlying voice service provider, Twilio, Inc. or its affiliate, that is solely capable of receiving voice calls to your photovideoeditor-assigned, messaging-related phone number and forwarding such calls to your third-party, pre-designated, U.S.-destination phone number of choice, and thus does not include connections to any emergency services, such as 911, or outbound voice service. photovideoeditor has no control over, and no liability for any such Third-Party Services. Any such designations do not constitute an endorsement by photovideoeditor of such Third-Party Services, or the products, or services of such third parties. These third parties operate independently of photovideoeditor and have established their own terms and conditions and policies. Customer acknowledges and agrees that photovideoeditor is not responsible for any damages or losses caused or alleged from using any Third-Party Services.
2.0 Mobile Terms of Service
2.1 Sending Phone Numbers
Your initial sending phone number(s) will be set forth in your plan. You can request a new number or additional numbers through your account. For all questions about the Services provided in connection with such number(s), you can send an email to support@photovideoeditor.com. You acknowledge that prior to your use of the Services, such number(s) and your proposed campaign or use-case(s) must be approved by the carriers.
2.2 Carrier Charges
You must communicate to any recipient of your messages that standard message and data rates may apply to any recipient sending or receiving SMS, MMS, RCS and other messages as required by any applicable Guidelines, defined below in Section 2.7.
2.3 STOP
You must communicate to any recipient of your messages that the recipient can cancel receipt of the messages at any time by texting “STOP” to the originating telephone number or shortcode. You must conspicuously notify your recipients of these procedures as required by any applicable Guidelines, defined below in Section 2.7.
2.4 HELP
After a recipient sends the message “HELP” to your sending number, the Platform will send an automated response with instructions about the messaging program they are opted into, how to obtain further information (this will be the email address you provided at sign up), as well as how to unsubscribe. You must conspicuously notify your recipients of these procedures, including the procedure to opt out of receiving future messages, as required by any applicable Guidelines, defined below in Section 2.7.
2.5 Coverage
photovideoeditor reserves the right to increase or decrease the carriers used in providing the Services. photovideoeditor currently supports only coverage in the United States and Canada.
2.6 Support
Customer and Technical Support for the Platform and Services may be contacted during photovideoeditor’s normal business hours. Consult photovideoeditor’s Website for support hours. photovideoeditor support staff will respond to messages received on holidays or outside normal business hours on the following business day.
2.7 Incorporation of Carrier, CTIA and Other Guidelines and Applicable Law
You agree to use the photovideoeditor Services strictly in accordance with this Agreement and (i) the guidelines of the Cellular Telecommunications Industry Association (“CTIA”), including without limitation “Best Practices,” which is currently available at https://api.ctia.org/wp-content/uploads/2023/05/230523-CTIA-Messaging-Principles-and-Best-Practices-FINAL.pdf, and the “Short Code Monitoring Handbook” which can currently found at https://www.ctia.org/programs and The Campaign Registry 10DLC campaign rules and guidelines, including complete and accurate submissions to it and any of its Vetting Partners (either directly or through us on your behalf), (ii) the Telephone Consumer Protection Act of 1991 and the Federal Communications Commission’s implementing regulations, rules, and orders, including at 47 C.F.R. § 64.1200, (iii) the Canada Wireless Telecommunications Association Guidelines, (iv) the cellular carrier guidelines, and (v) the applicable rules, regulations and laws, including any laws in relation to the content and nature of any advertising or marketing, (such as the Endorsement and Testimonial Guidelines published by the United States Federal Trade Commission (FTC) and the FTC’s Telemarketing Sales Rule, 16 C.F.R. § 310 et seq.), as any of them may be updated, amended or replaced from time-to-time (collectively, the “Guidelines”). photovideoeditor is not responsible for the content of the Guidelines.
2.8 Campaign Representations, including 100% Opt-In
By using the Service, you represent that (i) Your usage and Content, defined below, is in compliance with the Guidelines, including all applicable laws, and (ii) that photovideoeditor’s transmission or delivery of messages to the numbers provided will not violate the Guidelines, including any applicable law. You represent and warrant that all mobile numbers you provide to photovideoeditor in connection with your use of the Services are and will be 100% "opt-in", such that all recipients of your messages sent using the photovideoeditor Services, including all SMS, shortcode, MMS, RCS and other messages, have affirmatively consented to receive messages from you in compliance with all applicable laws and Guidelines, including, without limitation, any state or federal laws that require you to have each message recipient’s prior express written consent, prior express invitation or permission, or any other form of written consent, to send them any given message. You agree to provide upon photovideoeditor’s request a detailed written explanation of the method of collecting phone numbers and opt-ins, and a guarantee signed by an officer of your company, that holders of all mobile numbers on your message recipient list have agreed to receive messages from you. photovideoeditor may, in its sole discretion, suspend or cancel your account if it reasonably suspects that any holders of mobile numbers on your list have not opted in to receive your messages in the manner set forth above, and photovideoeditor reserves the right to take any other action it deems appropriate to assess your compliance with this representation and warranty.
2.9 Refuse Your Content
photovideoeditor may refuse, suspend, terminate any communications, campaign, text program or account that, in its opinion or that of a carrier, aggregator, or regulator who provides such opinion to photovideoeditor, is not in compliance with the then-current Guidelines, including any applicable law.
2.10 Granting photovideoeditor Permission to Encode Your Content
You hereby grant photovideoeditor permission to 1) encode Your Content into other formats, 2) store, process and transmit it via third parties to mobile devices and, optionally, any other devices and means of viewing agreed upon by you and photovideoeditor, but in all events you are solely responsible for the content of your messages.
2.11 External Sites
The Platform or Services may contain links to other websites or other online properties that are not owned or controlled by photovideoeditor (collectively, “External Sites”). The content of External Sites is not developed or provided by photovideoeditor. photovideoeditor is not responsible for the content of any External Sites and does not make any representations regarding the content or accuracy of any materials on External Sites. You should contact the site administrator or webmaster for External Sites if you have any concerns regarding content located on those External Sites. You should take precautions when downloading files from all websites to protect your devices from viruses and other destructive programs. If you decide to access any External Sites, then you do so at your own risk. Further, you will be solely responsible for compliance with any terms of service or similar terms imposed by any External Site in connection with your use of External Sites.
3.0 Content
3.1 Content Defined
The term “Your Content” refers to the data you are asking photovideoeditor to store, process, deliver or transmit to your message recipients. You represent the following:
3.1.1 Permission to Use Your Content
You own and/or have licensed all rights and necessary clearances to distribute Your Content to mobile devices. You covenant that Your Content does not violate the rights of any third party including, without limitation, intellectual property rights, trade secret rights and privacy rights, or similar rights.
3.1.2 Carriers and Aggregators
Your Content is consistent with standards imposed by mobile carriers and aggregators; specifically, Your Content is not libelous, defamatory, inaccurate, sexually explicit, unlawful, obscene, false, misleading, racially or ethnically offensive, or objectionable.
3.1.3 Guidelines
You represent and covenant that Your Content adheres and while using the Platform and Services will adhere to the current Guidelines.
3.1.4 No Violations
Your Content (including storage, processing, delivery, and transmission of Your Content) does not violate any laws or regulations in the United States, Canada, your home jurisdiction(s), or any other jurisdiction where Your Content is stored, processed, delivered, or transmitted.
3.2 Prohibited Content
photovideoeditor prohibits the use of its Platform and Services for certain types of text programs and content (“Prohibited Content”). Unless otherwise allowed by photovideoeditor, Prohibited Content includes but is not limited to the following: content dealing with sex, hate and discriminatory speech, alcohol, firearms, tobacco, vaping, CBD products, illegal drugs, depictions or endorsements of violence, adult or otherwise inappropriate content, profanity, loans, payday loans, short-term loans, mortgage loans, student loans, debt, debt relief, debt consolidation, debt reduction, credit, credit repair, taxes, tax relief, work-from-home opportunities, and medication. photovideoeditor reserves the right, in its reasonable discretion, to determine Prohibited Content on a case-by-case basis. You represent and covenant that Your Content does not and will not include Prohibited Content. The mere fact that photovideoeditor has previously conveyed Your Content through the Services does not constitute photovideoeditor’s agreement that Your Content is allowed on the Platform or photovideoeditor’s agreement to communicate through the Services Your Content in the future. If Your Content relates to Prohibited Content you may not use the Services without photovideoeditor’s prior written consent, which photovideoeditor may or may not grant in its sole discretion. photovideoeditor reserves the right to refuse, suspend, or terminate Services or any campaign, text program or account at any time and without warning that, in photovideoeditor’s sole discretion, relates to any Prohibited Content or other content deemed unacceptable by photovideoeditor, in its reasonable discretion. Further, if any carrier, regulator, the CTIA or similar body objects to Your Content, photovideoeditor reserves the right to suspend or terminate provision of the Services to you, even if photovideoeditor had previously agreed to allow that content.
3.3 Viruses
You represent, warrant and covenant that Your Content does not and will not contain any Malicious Code. “Malicious Code” means computer software, code, or other instructions intended to gain or facilitate unauthorized access to, prevent authorized access to, damage, disable, or degrade the performance of, computer systems or data. Without limitation, the term includes, to the extent meeting the foregoing definition, software, code, or instructions commonly referred to as “viruses,” “worms,” “Trojan horses,” “malware,” and “spyware.”
3.4 Third Party Intellectual Infringement Policy
3.4.1 Policy
photovideoeditor’s intellectual property policy is to remove or disable access to material that (i) photovideoeditor believes in good faith, or (ii) upon notice from an intellectual property owner or his or her agent, in either case is infringing the intellectual property of a third party by being made available on the Platform or through the Service. photovideoeditor considers a “repeat infringer” to be any user that has uploaded content to the Platform or Services and for whom photovideoeditor has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such content. photovideoeditor has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon photovideoeditor’s own determination.
3.4.2 Procedure for Reporting Claimed Infringement
If you believe that any content made available on or through the Platform or Services has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by photovideoeditor with the user alleged to have infringed a right you own or control, and you hereby consent to photovideoeditor making such disclosure. Your communication must include substantially the following:
- a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- identification of copyrighted works or materials being infringed, or, if multiple works are covered by a single notification, then a representative list of such works;
- 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 photovideoeditor to locate the material;
- information reasonably sufficient to permit photovideoeditor to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
- a statement that you have a good faith belief that the 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 you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
3.4.3 Designated Agent Contact Information
photovideoeditor’s designated agent for receipt of Notifications of Claimed Infringement (“Designated Agent”) can be contacted Via E-mail at: support@photovideoeditor.com
3.4.4 Counter Notification
If you receive a notification from photovideoeditor that material you made available on the Platform or through the Services has been the subject of a Notification of Claimed Infringement, then you will have the right to dispute such claim by providing photovideoeditor with a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to photovideoeditor’s Designated Agent through one of the methods identified in Section 3.4.2 above and include substantially the following information:
- your physical or electronic signature;
- 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 Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which photovideoeditor may be found, and you will accept service of process from the person who provided notification in accordance with Section 3.4.2 above or an agent of such person.
3.4.5 Reposting of Content Subject to a Counter Notification
If you submit a Counter Notification to photovideoeditor in response to a Notification of Claimed Infringement, then photovideoeditor will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that photovideoeditor will replace the removed User Content or cease disabling access to it in 10 business days, and photovideoeditor will replace the removed User Content and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless photovideoeditor’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on photovideoeditor’s system or network.
3.5 Revising Your Content To Comply
If for any reason photovideoeditor deletes or refuses to transmit any of Your Content pursuant to this Section 3, photovideoeditor may in its discretion contact you to inform you of the issue and allow you to revise Your Content to comply with this Agreement and applicable law and permit you to complete the campaign.
4.0 Force Majeure
4.1 General
Excluding payment obligations, neither party will be liable to the other for default or delay of obligations under the terms outlined in this document if any such default or delay results from conditions beyond the reasonable control of either party (“Force Majeure Event”). Those conditions include, but are not limited to, earthquakes, weather, flood, fire, flood, explosions, accident, telecommunications line failures, power outages, network failures, acts of God, riots, acts of war, acts of governments, strikes, labor disputes, trade disputes, technical failures, unavailability of the Internet, and failure of external suppliers, such as, but not limited to, intermediary aggregators between photovideoeditor and mobile carriers, mobile carriers themselves, server hosting companies, Internet service providers, and others. If photovideoeditor suffers a Force Majeure Event, it will make reasonable efforts within five (5) business days to recommend a substitute transmission path or other possible work-around for the original transmission that was prevented because of such Force Majeure Event. If the Client is not reasonably satisfied with such substitute transmission, photovideoeditor will allow Client a prorated reduction in fees for the Services which could not be delivered due to a Forced Majeure Event. In no event will photovideoeditor bear any liability for any disruption in the Services caused by a Force Majeure Event.
4.2 Payment
In no event will a Force Majeure Event excuse you from paying for Services provided by photovideoeditor. A Force Majeure Event will not relieve you of any financial obligations not affected by the Force Majeure Event.
4.3 Cancellation
Either party may cancel the remainder of Service without damages in the event that a Force Majeure Event continues for fifteen (15) consecutive business days.
5.0 Term and Termination
5.1 Term
Unless otherwise set forth in a sales order form issued by photovideoeditor (“Sales Order Form”), or the plan in which you have enrolled, the initial term (“Initial Term”) of this Agreement will be monthly. Thereafter, unless otherwise agreed in writing, the Agreement will automatically renew for terms equal in length to the Initial Term (each a “Renewal Term”). The Initial Term collectively with the Renewal Terms are the “Term.”
5.2 No Refund for Termination
You may terminate this Agreement at any time by providing prior written email notice to photovideoeditor at support@photovideoeditor.com or following the other procedures set forth in your account prior to the expiration of the then current Term, and such termination shall be effective upon the expiration of your then-current Term. You shall be entitled to no refund for any amounts due or paid to photovideoeditor prior to the effective date of such termination. If you do not terminate this Agreement prior to the expiration of the Initial Term or the applicable Renewal Term, you will be enrolled in, invoiced for and must pay for the following Renewal Term.
5.3 Termination for Default
photovideoeditor may suspend, cancel or terminate the Service if you do not timely pay for the Service. If this occurs, photovideoeditor may send you a “Payment Failure” notice by email, text or otherwise. If the Service has not already been suspended, cancelled or terminated, your Service will be suspended, cancelled or terminated if payment is not received within 14 days of the date when the first notice was sent. Despite any termination notice, you remain responsible to pay for the applicable Term for which you were enrolled.
5.4 Effect of Termination
Sections 1.1-1.8, 2.7, 2.8, 4, 6-8, 9.2-9.3, and 10-13, and any other provisions herein that, by their nature, should survive any expiration or termination of this Agreement, will survive any expiration or termination of this Agreement.
5.5 Liquidated Damages
photovideoeditor will charge you and you will promptly pay photovideoeditor for fees or fines resulting from “Violations” (defined below) if you or Your Content causes photovideoeditor to be fined by a supplier, cellular carrier or aggregator. Such fines may result from phishing, simulated phishing (e.g. for security testing or similar purposes), smishing, social engineering, or any technique used to manipulate someone into sharing private information such as passwords or credit card numbers or sending content that is not legal in the United States. “Violations” also includes any alleged breach of this Agreement or violations of the Guidelines, including applicable law or the policies of any of photovideoeditor’s mobile carriers or aggregators or your use of the Platform or Services.
6.0 Indemnification
You will defend, indemnify and hold photovideoeditor and its owners, principals, members, employees, and affiliates harmless from and against any losses, damages, liability, obligations, judgments, payments of interest, penalties, amounts paid in settlement, deficiencies, damages, injuries (including death), costs or expenses (including reasonable legal fees, court costs, costs of experts and disbursements) arising from or relating to any claims, actions, or other proceedings brought by or on behalf of any third party if that claim relates to or results, in whole or in part, from 1) your alleged breach of this Agreement, 2) your acts or omissions in connection with any Service offered by photovideoeditor, 3) your use of the Services or Your Content, or 4) transmission of Your Content through the Services. Customer’s indemnification obligations under this Section 6 shall apply regardless of who may be at fault or otherwise responsible under any statute, rule, or theory of law, including but not limited to theories of strict liability, including, but not limited to, claims relating to the Telephone Consumer Protection Act or similar state and federal laws, and even though the subject loss, damage, or injury may have been caused in whole or in part by the concurrent, active, or passive negligence of photovideoeditor or a defect in the Services. In the event of any such claim, photovideoeditor will promptly notify you of the claim and permit you, through mutually agreed-upon counsel, to answer and defend. photovideoeditor may, at its expense, participate in the defense with separate counsel. You will not settle any claim under this Section 6 without photovideoeditor’s written consent, which will not be unreasonably withheld. You will not publicize any settlement without photovideoeditor’s prior written consent, in photovideoeditor’s sole discretion. You will not stipulate, admit, or acknowledge any fault or liability on the part of photovideoeditor without its prior written consent, in its sole discretion.
You hereby give photovideoeditor a continuing lien on any account or other personal property of yours. This lien will be in the amount of any and all liabilities and obligations that you may owe to photovideoeditor whether such liabilities and obligations exist now or are incurred in the future. You agree that photovideoeditor may charge your card on file or collect by any means available under any applicable law and may sell your personal property which is not an account, by public or private sale at its discretion, and use the proceeds of such sale to satisfy such liabilities or obligations whether or not such liabilities or obligations are then in default or subject to a contingency to the fullest extent permitted by applicable law.
7.0 Privacy and Confidentiality
7.1 Privacy Policy Incorporated
Your private information will be collected, stored, processed, transmitted, and otherwise handled in accordance with photovideoeditor’s “Privacy Policy” accessible by clicking this link. The Privacy Policy is incorporated into this Agreement as if wholly set forth herein.
7.2 Service Provider
You agree that (1) you and not photovideoeditor are responsible for complying with the California Consumer Privacy Act of 2018 (Cal. Civ. Code § 1798.100 et seq.) (“CCPA”) and similar laws; (2) photovideoeditor is a “service provider” under CCPA and processes Personal Information on your behalf, acting under your direction when you disclose to photovideoeditor Personal Information of consumers who are your communication recipients; and (3) you are not subject to General Data Protection Regulation or any similar law or regulation that prohibits collection, distribution, processing and storage of the data you provide photovideoeditor as contemplated under this Agreement. With respect to the CCPA, photovideoeditor and you hereby agree that photovideoeditor is a service provider to you with respect to Personal Information. photovideoeditor is prohibited from (a) selling any Personal Information, and (b) retaining, using, or disclosing Personal Information for any purpose other than for the specific purpose of performing the Services, which, for the avoidance of doubt, also prohibits photovideoeditor from retaining, using, or disclosing Personal Information outside of its direct business relationship with you or for any other commercial purpose; provided, however, that photovideoeditor and you agree that photovideoeditor may use Personal Information as permitted by the CCPA. ”Personal Information” means any information that photovideoeditor has collected, accessed, received, used, disclosed, stored, transmitted, retained or otherwise processed on behalf of you pursuant to photovideoeditor’s provision of Services to you under this Agreement and that constitutes “personal information,” under the CCPA. To the extent you cannot use the Services or Platform to directly perform such actions and provide such information, photovideoeditor will promptly take actions and provide information as you may request to help you fulfill requests of consumers to exercise their rights under the CCPA, including, without limitation, verifiable consumer requests to access, delete, opt out of the sale of, or receive information about the processing of, Personal Information pertaining to them. This assistance will be provided to you at photovideoeditor’s then-current fees.
7.3 Confidentiality
“Confidential Information” means all tangible, oral, electronic, and visual information (i) that is designated as “proprietary” or “confidential” or by similar words by the disclosing party at the time of disclosure and that, if tangible is marked as such and if oral or visual is confirmed as such by the disclosing party in a writing delivered to the receiving party within fifteen (15) days after disclosure, or (ii) that the receiving party should have reasonably considered to be confidential under the circumstances surrounding disclosure. Each party agrees it will not disclose any such Confidential Information of the other party to any third party for the longer of, as to each item of Confidential Information, (i) three years after the termination of this Agreement, or (ii) for so long as such item remains a trade secret (as that term is defined in the Uniform Trade Secrets Act) of the party. Each party will take precautions against disclosure to third parties of Confidential Information that are at least as great as the precautions it takes to protect its own confidential information of a similar nature, but in no case less than reasonable precautions.
7.3.1
Confidential Information will not include any information that; (i) was previously known to the receiving party independently of the relationship formed by this Agreement; (ii) is received from a third party without similar restriction of confidentiality; (iii) is or becomes publicly available by other than unauthorized disclosure hereunder; (iv) is independently developed by the receiving party without the use of the other party’s Confidential Information; (v) is approved for release by written authorization of the disclosing party; or (vi) is required to be disclosed by any court order or rule of law, provided that the party of whom disclosure is required will provide to the extent legally permissible the other party as much notice as is commercially practicable under the circumstances and provide to the other party, at the other party’s expense, such assistance and information as the other party reasonably requests.
7.3.2
A receiving party may disclose the disclosing party’s Confidential Information to its employees and agents (“Representatives”) who (i) need to know such information for the purposes of this Agreement, and (ii) who are under a confidentiality requirement no less stringent than the one provided herein. Notwithstanding the foregoing, the receiving party will be liable for any defalcation by its Representatives.
7.3.3
photovideoeditor will use and disclose your customer information in connection with the following purposes: (a) for the provision of services and to manage, administer or effect any transmissions that you request or authorize, (b) meeting compliance obligations (including compliance with law, international guidance and internal policies and procedures), (c) collecting any amounts due from you, (d) conducting credit checks, (e) enforcing or defending photovideoeditor’s rights, (f) for photovideoeditor’s internal operational requirements, and (g) maintaining photovideoeditor’s overall relationship with you. By establishing and maintaining an account with photovideoeditor and using the Platform or Services, you agree that photovideoeditor may also, as necessary and appropriate, transfer and disclose any Customer information to the following recipients: (a) any sub-contractors, agents, service providers, or associates of photovideoeditor (including their employees, directors and officers); (b) in response to any requests from any governmental authorities; and (c) persons acting on behalf of the Customer.
7.3.4
Each receiving party recognizes that the release of the disclosing party’s Confidential Information may result in irreparable harm for which monetary damages alone may not be sufficient. Therefore, in addition to any other remedy to which it may be entitled in law or in equity, the disclosing party will be entitled to an injunction, without surety or bond, to prevent breaches of this Agreement and/or to compel specific performance of the confidentiality requirements herein.
7.3.5
Notwithstanding anything to the contrary herein, photovideoeditor will be free to use, in future services engagements and otherwise, residual information (information in non-tangible form that may be inadvertently retained by persons performing services hereunder). The Customer acknowledges and agrees that photovideoeditor is in the business of disseminating information by electronic means and that photovideoeditor (i) may now or in the future be in possession of confidential information of the Customer’s competitors that may be similar to the Customer’s Confidential Information, (ii) may enter into a transaction with a company other than the Customer (an “Other Customer”) based on such similar confidential information and (iii) will inevitably enhance its knowledge and understanding of the Other Customers through their review of the Customer’s Confidential Information in a way that cannot be separated from its knowledge of such Other Customers. The Customer therefore acknowledges that the same personnel involved in providing services to the Customer may also be involved in the review of a transaction with such Other Customers, and accordingly the confidential information may influence photovideoeditor’s decisions with respect to such Other Customers. The Customer further acknowledges and agrees that nothing herein will restrict photovideoeditor from providing the Platform and Services to any Other Customer so long as it adheres to the confidentiality restrictions contained herein with respect to the Customer’s Confidential Information.
8.0 Limitation of Liability and Disclaimer
8.1 DISCLAIMER
SLICKTEXT WILL NOT BE HELD LIABLE, UNDER ANY CIRCUMSTANCES, TO YOU OR ANY OTHER PERSON FOR AND HEREBY DISCLAIMS ANY AND ALL INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES, IN ANY FORM, INCLUDING ECONOMIC LOSS, LOSS OF CONTRACT, LOST PROFITS, REVENUES OR SAVINGS, DAMAGE TO REPUTATION OR GOOD WILL, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM, OR IN CONNECTION WITH, THE USE OR INABILITY TO USE THE PLATFORM OR SERVICES (COLLECTIVELY “LIABILITY”) THAT ARE BROUGHT ON, BY, OR ARE RELATED TO YOUR USE OF THE PLATFORM, SERVICES, INCLUDING PROFESSIONAL SERVICES, WHETHER ARISING UNDER WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF SLICKTEXT HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, AND YOU WILL INDEMNIFY AND HOLD SLICKTEXT FROM AND AGAINST THAT LIABILITY WHICH MAY BE MADE AGAINST SLICKTEXT IN RESPECT THEREOF. FURTHER, SLICKTEXT WILL NOT BE HELD LIABLE FOR ANY CLAIM, LIABILITY OR ACT ASSOCIATED WITH THE PROPER EXERCISE OF ITS RIGHTS UNDER THIS AGREEMENT. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE PLATFORM AND SERVICES, INCLUDING PROFESSIONAL SERVICES AND ANY CONTENTS PROVIDED BY SLICKTEXT (“SLICKTEXT CONTENT”) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR OF LIABILITIES FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES WILL NOT APPLY IN JURISDICTIONS THAT DO NOT ALLOW FOR THOSE LIMITATIONS OR EXCLUSIONS. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, SLICKTEXT’S LIABILITY, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING FROM THIS AGREEMENT IS LIMITED TO THE AMOUNT SLICKTEXT BILLED CUSTOMER FOR ALL SERVICES FOR THE MONTH IN WHICH THE ALLEGED CLAIM AROSE.
8.2 NO WARRANTIES
EXCEPT AS SET FORTH ABOVE, SLICKTEXT OFFERS NO WARRANTIES WITH REGARDS TO THE PLATFORM OR SERVICES, INCLUDING PROFESSIONAL SERVICES. SLICKTEXT HEREBY DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING SPECIFICALLY ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SLICKTEXT DOES NOT AUTHORIZE ANYONE TO MAKE ANY KIND OF WARRANTY ON ITS BEHALF. FURTHER, SLICKTEXT DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM OR SERVICES, INCLUDING PROFESSIONAL SERVICES, WILL MEET YOUR REQUIREMENTS; OR THAT THE PLATFORM OR SERVICES, INCLUDING PROFESSIONAL SERVICES, WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. EXCEPT AS SET FORTH ABOVE, SLICKTEXT HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR A PARTICULAR PURPOSE. CONSEQUENTLY, YOU AGREE THAT YOU SOLELY ASSUME ALL RISKS ARISING FROM YOUR USE OF THE PLATFORM AND SERVICES, INCLUDING PROFESSIONAL SERVICES. WITHOUT LIMITING THE FOREGOING, SLICKTEXT DOES NOT WARRANT THAT THE PLATFORM OR SERVICES, INCLUDING PROFESSIONAL SERVICES, ARE FREE OF ERRORS, COMPUTER VIRUSES, OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE PLATFORM, OR SERVICES, INCLUDING PROFESSIONAL SERVICES, OR ANY CONTENT THEREON RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, THEN SLICKTEXT WILL NOT BE RESPONSIBLE FOR THOSE COSTS; AND YOU ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF LIABILITY AND DISCLAIMER IS INTENDED TO BE VERY BROAD AND YOU HEREBY WAIVE AND RELINQUISH ANY RIGHTS OR BENEFITS YOU MAY HAVE UNDER ANY STATE OR FEDERAL LAW OR LEGAL PRINCIPLE DESIGNED TO INVALIDATE RELEASES OF UNKNOWN OR UNSUSPECTED CLAIMS TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, YOUR CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. This Warranty set forth in this Agreement gives you specific legal rights. You may have others which vary from state/country to state/country. Because some states/countries do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply to you.
8.3 Acknowledgement
You acknowledge that it is not within the control of photovideoeditor how or for what purposes its Platform and Services are used and the allocation of risk in this Agreement is a reflection of this allocation. If any disclaimer or exclusion in this Agreement is determined to be invalid and photovideoeditor becomes liable for damages or loss that may lawfully be limited then that liability will be limited to US $100 or, if higher, the lowest amount allowed by applicable law. photovideoeditor will not be liable to you for any Loss or delay (“Client Delays”) arising from any data, instructions, or material supplied, digitally or otherwise, by you or on your behalf, including without limitation data, instructions or materials which are incomplete, inaccurate, illegible, out of sequence or arising from late delivery or non-delivery or in the wrong form or any other fault by you or made on your behalf. photovideoeditor is not responsible for any malfunction, delay, nonperformance and/or other degradation of performance of any of its Services caused by or resulting from any alteration, modification and/or amendments due to changes requested by you or implemented by or on your behalf (“Client Changes”) whether or not beyond the scope of Services or Professional Services already being supplied to you. Any work arising from Client Delays or Client Changes may result in additional charges. photovideoeditor will make reasonable efforts to repair and reinstate Service in the event of a Client Delay or Client Change but may be unable to provide the Services in a timely manner or within the original cost quoted, depending on the scope and severity of the Client Delay or Client Change. If the Client Delay and/or Client Change is the result of an action performed or not performed by you or your agent to whom access to the Platform was given then you will be responsible for paying all costs associated with reinstating and/or repairing the Platform.
9.0 Invoices and Pricing
9.1 Pricing
photovideoeditor reserves the right to make adjustments to the pricing of its Services. photovideoeditor may raise or lower its prices at any time. No price increase will apply to you until the commencement of the next Renewal Term. Subscriptions to Services are subject to acceptance by photovideoeditor. photovideoeditor's acceptance of your subscriptions to Services vests only when photovideoeditor delivers to you a confirmation of the subscription. That confirmation will be delivered to you via email or through another written communication. photovideoeditor reserves the right to refuse to provide any Service to anyone for any legally permissible reason.
9.2 Payment and Invoicing
Except for overages, Surcharges, or as otherwise agreed in writing with photovideoeditor, payment for Services is due in advance of the period in which those Services will be provided. Monthly payments must be paid prior to the month in which Services are provided. Unless otherwise agreed with photovideoeditor in writing, payment for overages are due within thirty (30) days of the expiration of the billing period in which the Services were incurred. You may not receive an invoice. You must pay all amounts in accordance with the plan you have selected, your Sales Order Form, or instructions set forth in the portal for the Services, as applicable, including all amounts associated with your use of the auto-refill feature that enables you to automatically add a pre-selected amount of credits in a given month if you use up your allotted plan credits before the end of that month. All fees charged are exclusive of any applicable communications service, or telecommunication provider (e.g., carrier), or other administrative fees or surcharges (collectively, “Surcharges”), as calculated by photovideoeditor. You will pay all Surcharges associated with your use of the Services. Surcharges will be shown as a separate line item on your invoice. Late payments will bear interest at the lesser of 1.5% per month or the highest rate allowed by applicable law. Services for both the U.S. and Canada are stated in U.S. dollars. You will pay photovideoeditor via check, ACH, online credit card, or any other method agreed to by photovideoeditor. If you do not pay in advance for the Services, photovideoeditor may suspend provisions of the Services or terminate this Agreement. But you will continue to be obligated to pay for such Services for the full applicable Initial Term or Renewal Term of this Agreement. You acknowledge and agree that in the event of a charge back by a credit card or debit card company or by your bank (or similar action by another payment provider) or any other form of nonpayment by you in connection with payment to photovideoeditor, your Services may be immediately suspended and this Agreement may be terminated, in the sole discretion of photovideoeditor, and you agree to reimburse photovideoeditor for all such charge backs or similar fees it incurs in this connection. If your Service is suspended, cancelled, or transferred prior to the end of the then-current Service term, all fees paid are non-refundable in whole or in part and you will remain liable for any fees not yet paid. You acknowledge that photovideoeditor is not obligated to make any refunds under any circumstances. If you cancel your account, your account will be immediately terminated. Thereafter you will no longer have access to your account and you will lose any subscribers and other data you had prior to cancellation. To cancel your account, you must email info@photovideoeditor.com to make the cancellation request and include the following in the subject line: “Please Cancel photovideoeditor Account”.
9.3
In addition to photovideoeditor’s fees for Services and Professional Services, you agree to pay to photovideoeditor any sales, use or similar (VAT, GST) taxes (“Taxes”) that photovideoeditor is required to or authorized to collect from you as additions to photovideoeditor’s fees for Services or Professional Services, or if we do not charge Taxes to pay directly any applicable Taxes to the applicable tax authority. If photovideoeditor does not collect Taxes and a taxing authority assesses Taxes against photovideoeditor based on photovideoeditor’s failure to collect or pay Taxes, you agree to reimburse photovideoeditor the amount of assessed Taxes attributable to photovideoeditor’s prior sales to you. You must substantiate any claim of exemption from any Tax. Tax-exempt entities must provide photovideoeditor with a copy of their tax-exemption certificate.
9.4 New Products and Features
photovideoeditor may make certain products and features available to you on a trial basis at no charge. photovideoeditor reserves the right to cancel, suspend, terminate and/or end those services at any time.
10.0 Intellectual Property
10.1 Platform and Services
You acknowledge and agree that all photovideoeditor Content and materials available on its Platform or as part of the Services are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. Except as expressly authorized by photovideoeditor you agree not to sell license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from such materials or content. Reproduction, copying, or redistribution for commercial purposes of any materials or design elements on the Platform or Services are strictly prohibited without the express written permission of photovideoeditor. For information on requesting such permission, please contact us at support@photovideoeditor.com.
10.2 SOW
Neither party, by virtue of an SOW or Order Form, will gain any rights of ownership in copyrights, patents or other intellectual property of the other party (as to each party its “Pre-Existing IP”). photovideoeditor will own all right title and interest (including any copyrights, patents, trade secrets or other intellectual property rights) in and to all tangible results of the Professional Services and all intellectual property represented thereby and contained therein to the extent not your Pre-Existing IP. Upon full payment to photovideoeditor of all sums due for the Professional Services, you will be licensed to internally use any deliverables (“Deliverables”) provided by photovideoeditor to you under an SOW or Order Form in connection with the Platform. Nothing in this Agreement will preclude photovideoeditor from using for itself, or for performing services for others, any general knowledge, skills, experience, ideas, concepts, know-how, methods and techniques used or developed by photovideoeditor in the performance of the Professional Services.
11.0 Materials Submitted to photovideoeditor
You hereby grant to photovideoeditor a non-exclusive, royalty-free, worldwide, irrevocable, perpetual license, with the right to sub-license, to reproduce, distribute, transmit, create derivative works of, publicly display and publicly perform any comments and other information (including, without limitation, ideas contained therein for new or improved products and services) you submitted to any public areas of the Platform (such as bulletin boards, forums and newsgroups) or by email to photovideoeditor by all means and in any media now known or hereafter developed. You also grant to photovideoeditor the right to use your name in connection with the submitted comments and other information as well as in connection with all advertising, marketing, and promotional material related thereto. You agree that you will have no legal recourse against photovideoeditor for any alleged or actual infringement or misappropriation of any property right in your communications to photovideoeditor. Nothing in this Section 11.0 affects your rights in Your Content.
12.0 Jurisdiction and Dispute Resolution
12.1 General
In the interest of resolving disputes between you and photovideoeditor in the most expedient and cost effective manner, you and photovideoeditor agree that any dispute arising out of or in any way related to this Agreement or your use of the Site or Services will be resolved by binding arbitration. This agreement to arbitrate disputes includes all claims arising out of or in any way related to this Agreement or your use of the Platform or Services, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND SLICKTEXT ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION AND THAT THIS AGREEMENT WILL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT.
12.2 Exceptions
Notwithstanding this Section 12, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an arbitration-award enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in aid of arbitration from a court of competent jurisdiction; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
12.3
If the Customer is a citizen of or domiciled in the United States, any dispute, controversy, or claim arising out of, relating to, or in connection with this Agreement, including with respect to the formation, applicability, breach, termination, invalidity or enforceability thereof, (the “Dispute”) will be finally settled by binding arbitration in accordance with the Commercial Rules of the American Arbitration Association. (the “Rules”).
12.4
The Dispute will be determined by a sole arbitrator. The arbitrator will be selected in accordance with the Rules. The Parties expressly delegate to the arbitrator the power and authority to rule on the arbitrator’s own jurisdiction, including any objections with respect to arbitrability, to the existence, scope, or validity of the arbitration agreement, or with respect to whether all of the claims, counterclaims, and setoffs made in the arbitration may be determined in a single arbitration, without any need to refer such matters first to a court.
12.5
The seat of the arbitration will be the State of Tennessee. Should it become necessary for a court to compel arbitration, the Parties expressly agree and acknowledge that the court’s order will compel arbitration in the State of Tennessee. This Agreement and the agreement to arbitrate will be governed by, and will be construed, interpreted, and enforced in accordance with, the laws of the State of New York, excluding its conflicts-of-laws principles.
12.6
Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
12.7
The Parties agree that the prevailing party will be entitled to an award of its costs and expenses, including an award of reasonable attorney’s fees (the “Costs”) and the arbitrator is required to award Costs to the prevailing party.
12.8
If any party files a court action arising out of or relating to a Dispute, including the determination of the scope or applicability of agreement to arbitrate, to compel or stay arbitration, or to confirm, vacate or modify the arbitration award, the prevailing party will be entitled to recover its reasonable attorney’s fees and other costs incurred in such court action and the court in which such action is brought will award such reasonable attorney’s fees and costs to the prevailing party.
12.9
In any action brought to enforce an arbitration award or judgment confirming an arbitration award, the prevailing party will be entitled to recover its reasonable attorney’s fees and other costs incurred in such court action and the court in which such action is brought will award such reasonable attorney’s fees and costs to the prevailing party.
12.10
This agreement to arbitrate will be binding upon the successors, assignees, representatives, spouses and any trustee or receiver of any party.
12.11
For the avoidance of doubt, the Parties agree that no claims on a class, collective or representative basis will be brought in the arbitration process contemplated hereunder, and the arbitrator will have no power to hear any such claims. IN ADDITION, THE PARTIES HERETO WAIVE ANY RIGHT TO BRING OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, OR REPRESENTATIVE ACTION AGAINST EACH OTHER IN CONNECTION WITH ANY DISPUTE, AS DEFINED IN THIS SECTION 12, OR ANY OTHER CONTROVERSY ARISING OUT OF, CONNECTED WITH, OR RELATING IN ANY WAY TO SLICKTEXT’S BUSINESS OR AFFAIRS OR TO THIS AGREEMENT.
THE PARTIES UNDERSTAND THAT, ABSENT THIS AGREEMENT TO ARBITRATE, THEY WOULD HAVE THE RIGHT TO SUE EACH OTHER IN COURT, AND THE RIGHT TO A JURY TRIAL, BUT THEY GIVE UP THOSE RIGHTS VOLUNTARILY AND AGREE TO RESOLVE ANY AND ALL GRIEVANCES BY ARBITRATION.
12.12 Dispute Resolution Confidentiality
The Parties, any arbitrator, and their respective agents or representatives, will keep confidential and will not disclose to any non-party the existence of the arbitration, non-public materials and information disclosed or provided in the arbitration by any party, or orders or awards made in the arbitration (collectively, the “Dispute Confidential Information”). If a party or an arbitrator wishes to involve a non-party in the arbitration — including a fact or expert witness, stenographer, translator or any other person — the party or arbitrator(s) will make reasonable efforts to secure the non-party’s advance agreement to preserve the confidentiality of the Dispute Confidential Information, consistent with this provision. Notwithstanding the foregoing, a party may disclose Dispute Confidential Information to the extent necessary to:
12.12.1
prosecute or defend the arbitration or proceedings related to it (including enforcement or annulment proceedings), or to pursue a legal right;
12.12.2
respond to a compulsory order or request for information by a governmental or regulatory body, but only after first providing all parties to the arbitration notice of the intent to disclose;
12.12.3
make disclosure(s) as required by law or by the rules of a securities exchange;
12.12.4
seek legal, accounting or other professional services; or
12.12.5
satisfy information requests of potential acquirers, investors or lenders, other than any competitor of any party to the arbitration.
Provided, however, should disclosure be required pursuant to this Section 12 the producing party will take reasonable measures to ensure that the recipient preserves the confidentiality of the information provided at producing party’s sole cost and expense.
The arbitrator may permit further disclosure of Dispute Confidential Information where there is a demonstrated need to disclose that outweighs any party’s legitimate interest in preserving confidentiality.
This Section 12 will survive the termination of this Agreement and termination of any arbitration brought pursuant to this Agreement, but the arbitrator’s authority to permit disclosure of Dispute Confidential Information terminates upon the termination of the arbitration. This confidentiality provision may be enforced by the arbitrator or any court of competent jurisdiction, and an application to a court to enforce this provision will not waive or in any way derogate from the agreement to arbitrate.
13.0 Miscellaneous
13.1 Assignment
You may not assign this Agreement except with the prior written consent of photovideoeditor. photovideoeditor may assign this Agreement to an affiliate or to a buyer, by merger, operation of law or otherwise, of photovideoeditor or its assets. Subject to the limitations hereinbefore expressed, this Agreement will mutually benefit and be binding upon the parties, their successors and assigns.
13.2 Compliance with Laws
You represent and warrant that you are not (i) acting, directly or indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the Annex to Executive Order No. 13224 (Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) (the “Executive Order”), or are included on any relevant lists maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, U.S. Department of State, the U.S. Department of Commerce or other U.S. government agencies, all as may be amended from time-to-time, and (ii) in violation of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Action of 2001, Public Law 107-56, as amended, the Executive Order, or any applicable anti-money laundering or anti-terrorism Laws. To facilitate the foregoing, photovideoeditor may require you to deliver a government issued identification document, certified by a professional acceptable to photovideoeditor. photovideoeditor’s Platform and Services are open to the U.S. and Canadian public without regard to race, color, sex, religion, familial status, disability, or national origin.
13.3 Electronic Communications
When you visit the Platform, use photovideoeditor’s Services or send e-mails to us, you are communicating with us electronically and you consent to receive electronic communications from us. photovideoeditor also sends notices by post, email, or facsimile, using the contact details you provide to us. photovideoeditor uses email extensively, but as you are aware email is not fully secure and may be intercepted by third parties. Unless you advise us otherwise in writing you agree to photovideoeditor’s use of email for correspondence regarding instructions both with you and third parties. In keeping with information security best practices for confidentiality, photovideoeditor recommends encrypting all sensitive data you send to us. photovideoeditor will communicate with you by e-mail or by posting notices on photovideoeditor’s Website. You agree that all agreements, notices, disclosures, and other communications that photovideoeditor provides to you electronically satisfy any legal requirement that such communications be in writing.
13.4 Confidentiality and Non-Disparagement
You agree to maintain this Agreement and all details regarding the Platform and Services in strictest confidence and not to disclose, publish or divulge such information to any third party; provided that you may disclose this Agreement to your attorneys and advisors, or as required by law or any governmental or regulatory agency or judicial proceeding. You further agree that, unless required to do so by legal process, you and your affiliates will not make or cause to be made any disparaging statements or representations, either directly or indirectly, whether orally or in writing, by word or gesture, to any person whatsoever, about photovideoeditor, its affiliates, or any of its directors, officers, employees, attorneys, agents, or representatives or persons affiliated with the Platform or Services. For purposes of this paragraph, a disparaging statement or representation is any communication that if publicized to another would cause or tend to cause the recipient of the communication to question the business condition, integrity, competence, good character, or product quality of the person or entity to whom the communication relates.
13.5 Legal Proceedings
Unless photovideoeditor receives an order from a court of competent jurisdiction that directs photovideoeditor not to act, photovideoeditor will comply with any legal proceedings applicable to your account. You agree that if you and/or your account become involved in legal proceedings and photovideoeditor receives a legal document or other notice that photovideoeditor believes requires it to supply information on your account or to suspend your account, photovideoeditor is authorized to do so regardless of whether you appeared in those proceedings. If this occurs, use of your account, photovideoeditor’s Platform or Services may become restricted and photovideoeditor may charge you for its internal and out-of-pocket costs to comply with such orders.
13.6 Cooperation With Investigation
You agree, in the event of any claim arising from your account or your use of the Services, to cooperate and assist both photovideoeditor and any law enforcement authorities in connection with any investigation and prosecution of any suspected wrongdoer. You understand and agree that failure to cooperate may result, in photovideoeditor (at its sole discretion) closing your account and dishonoring any claim which you have made against photovideoeditor.
13.7 Quality Control
You agree that photovideoeditor’s supervisory personnel may listen to and record telephone calls, and review correspondence, between you and photovideoeditor’s representatives in order to evaluate the quality of photovideoeditor’s service to you and to other customers.
13.8 Time of the Essence
You acknowledge and agree that TIME IS OF THE ESSENCE with respect to your performance of your obligations and actions required or permitted under this Agreement. In the event you fail to complete such actions within the time prescribed, you will be in default, and subject to all remedies available at law, equity, or hereunder.
13.9 Waiver
No term or provision hereof will be deemed waived and no breach excused, unless such waiver or consent will be in writing and signed by a duly authorized representative, partner or owner of the party claimed to have waived or consented. Should either party consent, waive or excuse a breach by the other party, whether expressed or implied, such will not constitute a consent to, waiver of, or excuse of any other different or subsequent breach.
13.10 Severability
If any provision of this Agreement will be held by a court of competent jurisdiction to be invalid, void, unenforceable, contrary to law or public policy, the remaining provisions will remain in full force and effect.
13.11 Costs
Except as otherwise expressly provided herein, each party will bear its own expenses and costs associated with this Agreement and performance thereof.
13.12 Headings
Headings in this Agreement are for convenience only and will not be used to interpret or construe its provisions
13.13 Must be Over 18
THE PLATFORM AND SERVICES ARE NOT FOR PERSONS UNDER THE AGE OF 18 OR IF THE AGE OF MAJORITY IS GREATER WHERE YOU LIVE, THAT AGE OF MAJORITY (“AGE OF MAJORITY”). THE PLATFORM AND SERVICES ARE NOT FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE PLATFORM OR SERVICES BY SLICKTEXT. IF YOU ARE UNDER THE AGE OF MAJORITY, THEN YOU MUST NOT USE OR ACCESS THE PLATFORM OR SERVICES AT ANY TIME OR IN ANY MANNER. By using the Platform or Services, you affirm that either you are at least the Age of Majority.
13.14 Relationship of Parties
In performance of their obligations hereunder, the parties at all times will be independent contractors and nothing contained herein will place the parties in the relationship of partners, joint venturers, principal/agent or employer/employee. Neither party will have the power to obligate or bind the other party, nor will either party hold itself out as having such authority.
13.15 Entire Agreement
This Agreement, including applicable Sales Order Forms, constitutes the entire agreement between you and photovideoeditor with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter herein.