StayTuned Digital, Inc.
Last Updated: August 20, 2020
For the purposes of the Agreement, the Services are defined to include the object code for the Services; the data, databases, and data structures incorporated into the Services; all associated printed materials; online or electronic documentation; and the physical media on which any of the foregoing is reproduced or distributed.
THE SECTIONS BELOW TITLED “BINDING ARBITRATION” AND “CLASS ACTION WAIVER” CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.
1. Description of the Services; Restrictions.
a. The Services.
The Services enable you to send messages with order updates (“Messages”) to consumers of your products and services (“Consumers”). Messages may be sent via SMS, WhatsApp, Facebook Messenger, and other third-party messaging services (collectively, “Messaging Service”), at the Consumer’s preference. Through the Platform, you will be able to dictate the content of such messages.
You are entirely responsible for complying with all applicable laws with respect to sending SMS and electronic messages, including, but not limited to, anti-spam laws the Telephone Consumer Protection Act, and similar state laws (“Applicable Law”). If consent or opt-out is required under Applicable Law to send Messages, you, and not StayTuned, are responsible for obtaining such consent or honoring opt-out requests. We will not monitor any national or regional do-not-call lists on your behalf.
StayTuned relies of the third party Messaging Services to transmit the Messages to Consumers. While StayTuned makes every effort to deliver Messages, StayTuned makes no guarantees with respect to Message delays or delivery failures.
The Services are available only to individuals aged 13 years or older. If you are 13 or older, but under the age of majority in your jurisdiction, you should review the Agreement with your parent or guardian to make sure that you and your parent or guardian understand it. If you are under the age of 13, you may use the Services only with the consent of your parent or guardian.
We reserve the right, in our sole and absolute discretion, to deny you access to the Services, or any portion of the Services, including by closing or disconnecting your Account, without notice and without reason.
2. Username; Password; Unique Identifiers
If you wish to become a StayTuned customer, you must create an Account on the Platform. If you elect to register with us, you may log in to the Platform using a third-party login provider (e.g., Google ). If you do not wish to log in using these third-party access credentials, you will be prompted to create a user name (“User Name”), a password (“Password”), and perhaps certain additional information that will assist in authenticating your identity when you log-in in the future (“Unique Identifiers”). When creating your Account, you must provide true, accurate, current, and complete information. Each User Name and corresponding Password can be used by only one individual. You are solely responsible for the confidentiality and use of your User Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. You will promptly inform us of any need to deactivate a Password or User Name, or change any Unique Identifier. We reserve the right to delete or change your Password, User Name, or Unique Identifier at any time and for any reason and shall have no liability to you for any loss or damage caused by such action.
4. Intellectual Property.
StayTuned owns all right, title, and interest in and to, or is duly licensed under or otherwise authorized to use by its suppliers, the Services and all intellectual property rights in and to the Services. No license or other right is granted herein except for the rights specifically set forth herein. By using the Services, you (i) acknowledge and agree not to contest StayTuned’s proprietary rights in the Services; and (ii) agree not to disclose any confidential information of StayTuned regarding the Services (including the Services itself) or that is otherwise disclosed to you in connection with this Agreement, unless such disclosure is expressly allowed by this Agreement. You will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services.
In addition to User Content (as defined below) that you provide to us, the Services contain material, such as videos, photographs, software, text, graphics, images, and other material provided by or on behalf of StayTuned (collectively referred to as the “Content”). The Content may be owned by us or third parties. The Content and all intellectual property related thereto are protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws.
If you violate any part of this Agreement, your permission to access the Content and the Services automatically terminate and you must immediately destroy any copies you have made of the Content.
The trademarks, service marks, and logos of StayTuned (the “StayTuned Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of StayTuned. Other company and service names located on the Services may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with StayTuned Trademarks, the “Trademarks”). Nothing on the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of StayTuned Trademarks inures to our benefit.
Elements of the Services are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated in whole or in part, by any means, including, but not limited to, the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.
5. Usage Restrictions. You will not (and will not authorize any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services; (ii) modify, adapt, or translate the Services; (iii) make any copies of the Services; (iv) resell, distribute, or sublicense the Services; (v) remove or modify any proprietary markings or restrictive legends placed on the Services; (vi) use the Services in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; (vii) introduce into the Services any virus, worm, “back door,” Trojan Horse, or similar harmful code; (viii) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; (ix) interfere with, or attempt to interrupt the proper operation of, the Services or attempt to gain access to any Content, data, files, or passwords related to the Services through hacking, password or data mining, or any other means; (x) cover, obscure, block, or in any way interfere with any advertisements and/or safety features on the Services; (xi) take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure; or (xii) send, or attempt to send, any Message that: (a) infringes any copyright, trademark, right of publicity, privacy, or other proprietary rights of any person or entity; (b) is defamatory, libelous, indecent, obscene, pornographic, sexually explicit, invasive of another’s privacy, promotes violence or illegal activity, or contains hate speech (i.e., speech that attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status, and/or sexual orientation/gender identity); or (c) discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information. Any failure to comply with the above or any other terms and conditions contained herein will result in the automatic termination of the license, and reversion to StayTuned of the rights, granted to you hereunder.
6. User Content; Licenses.
The Services enable you to provide text, audio, video, images, rich media, and other materials you want included in the content of Messages (“User Content”). You expressly acknowledge and agree that once you submit your User Content for inclusion into the Services, there is no confidentiality or privacy with respect to such User Content, including, without limitation, any personally identifying information that you may make available. YOU, AND NOT STAYTUNED, ARE ENTIRELY RESPONSIBLE FOR ALL YOUR USER CONTENT THAT YOU UPLOAD, POST, E-MAIL, OR OTHERWISE TRANSMIT VIA THE SERVICES. We are not obligated to publish any User Content through any Messaging Service if we determine in our reasonable discretion that such User Content is inappropriate or otherwise violates the terms and conditions of this Agreement.
You retain all copyrights and other intellectual property rights in and to your own User Content. You do, however, hereby grant us and our sublicensees a non-exclusive, royalty-free, freely sublicensable license to copy, transmit, format, distribute, publicly display, publicly perform, and otherwise use your User Content and all intellectual property and moral rights therein throughout the universe, for the purpose of providing you the Services.
7. Disclaimer of Warranty. THE SERVICES AND THE CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” STAYTUNED MAKES NO, AND HEREBY DISCLAIMS ALL, EXPRESS, IMPLIED, OR STATUTORY WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES WITH REGARD TO PERFORMANCE, MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, FITNESS FOR ANY PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
YOU ARE ENTIRELY RESPONSIBLE FOR ENSURING YOU ARE IN COMPLIANCE WITH ALL APPLICABLE LAW, AND STAYTUNED MAKES NO REPRESENTATION THAT YOUR USE OF THE SERVICES WILL COMPLY WITH SUCH APPLICABLE LAW.
YOU UNDERSTAND THAT MESSAGES WILL BE SENT BY THE MESSAGING SERVICE, WHICH IS NOT OWNED OR CONTROLLED BY STAYTUNED. STAYTUNED IS NOT RESPONSIBLE FOR ANY MESSAGE DELIVERY FAILURE TO YOU OR CONSUMERS.
TO THE EXTENT THAT STAYTUNED MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
8. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STATUTORY OR OTHERWISE, AND IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) IN NO EVENT SHALL STAYTUNED OR OUR SUPPLIERS BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES FOR PERSONAL INJURY, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION/DATA, OR ANY OTHER PECUNIARY LOSS OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR THE CONTENT, EVEN IF STAYTUNED OR OUR SUPPLIER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL STAYTUNED OR ITS SUPPLIERS BE LIABLE FOR ANY CLAIM BY A THIRD PARTY, AND (II) STAYTUNED’S LIABILITY IN THE AGGREGATE FOR ANY DIRECT DAMAGES NOT ATTRIBUTABLE TO PERSONAL INJURY SHALL IN NO EVENT EXCEED FIFTY DOLLARS ($50).
SOME JURISDICTIONS, INCLUDING THE STATE OF NEW JERSEY, DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AS SET FORTH IN SECTION 7 ABOVE OR THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION. THEREFORE, SOME OF THE ABOVE DISCLAIMERS OF WARRANTY AND/OR LIMITATIONS ON LIABILITY MAY NOT APPLY TO YOU.
NOTHING HERE SHALL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
9. Export Laws. You may not use or otherwise export or re-export the Services except as authorized by United States law and the laws of the jurisdiction in which the Services was obtained. In particular, but without limitation, the Services may not be exported or re-exported, without proper authorization pursuant to U.S. law, (i) into (or to a national or resident of) any country, or to a person, subject to U.S. economic sanctions or other trade controls applicable to the Services; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Commerce Department’s Denied Persons List, Unverified Parties List, Entities List, or the U.S. State Department’s list of Debarred Parties; or (iii) otherwise in violation of or as prohibited by the laws, rules, regulations, or administrative orders of the U.S., or any unit, agency, or department thereof. By using the Services, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list or order, or subject to any such prohibition.
10. Representations; Warranties; and Indemnification.
(a) You hereby represent, warrant, and covenant that:
You own or have the necessary licenses, rights, consents, and permissions to all trademark, trade secret, copyright, or other proprietary, privacy, and publicity rights in and to your User Content and any other works that you incorporate into your User Content, and all the rights necessary to grant the licenses and permissions you grant hereunder;
Use of your User Content in the manner contemplated in this Agreement shall not violate or misappropriate the intellectual property, privacy, publicity, contractual, or other rights of any third party; and
You shall not submit to the Services any User Content that violates the restrictions set forth in Section 5 above or any other term of this Agreement.
11. Binding Arbitration.
In the event of a dispute arising between you and StayTuned under or relating to this Agreement or the Services (each, a “Dispute”), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act (“FAA”). Any election to arbitrate, at any time, shall be final and binding on the other party. NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by you and StayTuned, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each of you and StayTuned will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. As set forth in Section 13 below, nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.
12. Class Action Waiver
You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
13. Equitable Relief
You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of New York for purposes of any such action by us.
14. Compliance with Applicable Laws.
The Services are based in the United States and are only available to United States residents. We make no claims concerning whether the Services or Content may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Services or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
15. Communications with and Submissions to Us.
Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to all e-mails and communications you send to us, including, but not limited to, ratings, feedback, questions, comments, suggestions, and the like, we shall be free to use any ratings data, ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including but not limited to, the development, production, and marketing of products and services that incorporate such information without compensation or attribution to you.
16. External Sites
The Services may contain links to third-party websites (“External Sites”). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
a. Governing Law. This Agreement shall be governed by the laws of the State of New York without regard to principles of conflicts of laws. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
b. Modifications. No modification or waiver of any provision of this Agreement, nor consent to any departure here from shall in any event be effective unless the same shall be in writing and signed by an authorized representative of StayTuned.
c. Termination of the Agreement. We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Services, at any time and for any reason without prior notice or liability. We reserve the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability. Sections 3-17 shall survive the termination of this Agreement.
d. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
e. No Waiver. Unless otherwise agreed herein, no delay or failure on the part of any party in exercising any right hereunder shall impair any such right or any remedy of such party nor shall it be construed to be a waiver of any continuing breach or default hereunder or any acquiescence therein or of any similar breach or default thereafter occurring, nor shall any waiver of any single breach or default hereunder be deemed a waiver of any other breach theretofore or thereafter occurring.
f. Headings. The headings of the paragraphs herein are for convenience of reference only and are not to be considered in construing this Agreement.
g. Complete Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all agreements and understandings between the parties concerning the subject matter hereof.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY. YOU FURTHER AGREE THAT THIS IS THE COMPLETE AND EXCLUSIVE AGREEMENT BETWEEN THE PARTIES.