DESCRIPTION OF SERVICE.
Network Capital, LLC provides a web-based application
("Goodchat") for managing mobile marketing campaigns including mobile messaging capabilities
(the "Service"). Unless explicitly stated otherwise, any new features that augment or enhance
the current Service shall be subject to this Agreement. You understand and agree that the Service
is provided to you on an "AS-IS" basis and that Goodchat assumes no responsibility for the timeliness,
deletion, mis-delivery or failure to store any user communications or personalization settings.
You are responsible for obtaining access to the Service and that access and subsequent usage
may involve third party fees (such as Internet access to use the Service).
YOUR REGISTRATION OBLIGATIONS.
In consideration of your use of the Service,
you represent that you are of legal age to form a binding contract and are not a person barred
from receiving the Service under the laws of the United States or other applicable jurisdiction.
You also agree to: (a) provide true, accurate, current and complete information about yourself
as prompted by the Service's registration form (such information being the "Registration Data")
and (b) maintain and promptly update the Registration Data to keep it true, accurate, current
and complete. If you provide any information that is untrue, inaccurate, not current or incomplete,
or Goodchat has reasonable grounds to suspect that such information is untrue, inaccurate, not
current or incomplete, Goodchat has the right to suspend or terminate your account and refuse
any and all current or future use of the Service (or any portion thereof). Anyone under the age
of 18 may not sign up for a Goodchat account or use any Goodchat's services.
PAYMENT AND FEES. - Payment by Credit Card / Paypal. You hereby authorize Goodchat to charge your credit
card as set forth in the Payment Method section of the Registration Form to a monthly
Services fee, and overage fees to Goodchat at the rates set forth on Goodchat.co/pricing
or agreed upon rate.
- Pass Through Charges. If at any time after execution of this Agreement, a Network
Operator or other Third-Party changes the Third-Party Charges on Provisioned Phone
Numbers then Goodchat, at its discretion, may pass through such fees ("Pass Through
Charges") to you at cost.
GOODCHAT PRIVACY POLICY.
Registration Data and certain other information
about you are subject to our Privacy Policy. For more information, please review our full privacy
policy at Goodchat.co/privacy-policy. You understand that through your use of the Service you
consent to the collection and use (as set forth in the Privacy Policy) of this information, including
the transfer of this information to the United States and/or other countries for storage, processing,
and use by Goodchat and its affiliates. Goodchat may reasonably use your name and logo for its
investor relations and marketing purposes.
MEMBER ACCOUNT, PASSWORD AND SECURITY.
You (the "MEMBER") will receive
a password and account designation upon completing the Service's registration process. You are
responsible for maintaining the confidentiality of the password and account designation and are
fully responsible for all activities that occur under your password or account designation. You
agree to (a) immediately notify Goodchat of any unauthorized use of your password or account
or any other breach of security, and (b) ensure that you exit from your account at the end of
each session. Goodchat cannot and will not be liable for any loss or damage arising from your
failure to comply with this section.
MEMBER CONDUCT, REPRESENTATIONS AND WARRANTIES - You understand that all information, data, text, software, music, sound, photographs,
graphics, audio, video, messages or other materials ("Content"), whether publicly posted
or privately transmitted, are the sole responsibility of the person from which such
Content originated. This means that you, and not Goodchat, are entirely responsible for
all Content that you upload, post, email, transmit or otherwise make available via the
Service. Goodchat does not control the Content posted via the Service and, as such, does
not guarantee the accuracy, integrity or quality of such Content. Under no circumstances
will Goodchat be liable in any way for any Content, including, but not limited to, for
any errors or omissions in any Content, or for any loss or damage of any kind incurred
as a result of the use of any Content posted, emailed, transmitted or otherwise made
available via the Service.
Goodchat is solely a facilitator of the message traffic and has no visibility into or control
over individual Messages as they are transmitted through Goodchat and has no responsibility
or liability with respect to the content of any individual Message. Except that Goodchat
may use programmatic means to filter (pre-screen) your messages and block your campaigns
or account due to message keywords that Goodchat has determined, in it's sole description,
may violate an applicable, rule, regulation, or law. - You agree to not use the Service to:
- upload, post, text message, email, transmit or otherwise make available any illegal
contests or gambling, unsolicited or unauthorized advertising, promotional
materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other
form of solicitation;
- upload, post, text message, email, transmit or otherwise make available any content
that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory,
vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially,
ethnically or otherwise objectionable, or that you do not have a right to make
available under any law or under contractual or fiduciary relationships (such as
inside information, proprietary and confidential information learned or disclosed as
part of employment relationships or under nondisclosure agreements, or which
violates the intellectual property rights of a third party ("Rights");
- forge headers or otherwise manipulate identifiers in order to disguise the origin of
any Content transmitted through the Service;
- upload, post, text message, email, transmit or otherwise make available any material
that contains software viruses or any other computer code, files or programs
designed to interrupt, destroy or limit the functionality of any mobile telephone,
mobile device, computer software or hardware or telecommunications equipment;
- "stalk" or otherwise harass another; and/or
- Using any equipment or software that has the capacity to store or produce telephone
numbers to be called, using a random or sequential number generator, in conjunction
with your use of the Services;
- Using any equipment or software that has the capacity to initiate messages without
human intervention, in conjunction with your use of the Services;
- Sending any calls to life-line services, such as hospitals, fire, police, 911 or
utility- related telephone numbers;
- Using strings of numbers as it is unlawful to engage two or more lines of a
multi-line business;
- Harvesting, or otherwise collecting information about others, without their consent;
- Misleading others as to the identity of the sender of your messages, by creating a
false identity, impersonating the identity of someone/something else or by providing
contact details at do not belong to you;
- Transmitting, associating or publishing any unlawful, racist, harassing, libelous,
abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or
otherwise objectionable material of any kind;
- Transmitting any material that may infringe upon the intellectual property rights of
third parties including trademarks, copyrights or other rights of publicity;
- Transmitting any material that contains viruses, trojan horses, worms, time bombs,
cancel-bots or y other harmful/deleterious programs;
- Interfering with, or disrupting, networks connected to the Services or violating the
regulations, policies or procedures of such networks;
- Attempting to gain unauthorized access to the Services, other accounts, computer
systems or networks connected to the Services, through password mining or any other
means;
- Abusing the fair use policy with regard to unlimited keywords—that is, registering
many keywords without using them for weeks or months, as is determined to be abuse
in the sole discretion of Goodchat;
- Interfering with another's use and enjoyment of the Services or Goodchat Sites; or
- Engaging in any other activity that Goodchat believes could subject it to criminal
liability or civil penalty/judgment.
- You acknowledge that Goodchat may or may not pre-screen Content, but that Goodchat and
its designees shall have the right (but not the obligation) in their sole discretion to
pre-screen, refuse, or move any Content that is available via the Service. Without
limiting the foregoing, Goodchat and its designees shall have the right to remove any
Content that violates this Agreement or is otherwise objectionable.
- You acknowledge, consent and agree that Goodchat may access, preserve, and disclose your
account information and Content if required to do so by law or in a good faith belief
that such access preservation or disclosure is reasonably necessary to: (a) comply with
any subpoena or other legal process; (b) enforce this Agreement; (c) respond to claims
that any Content violates the rights of third-parties; (d) respond to your requests for
customer service; or (e) protect the rights, property, or personal safety of Goodchat,
its users and the public.
- You understand and agree that all messages you send via the Goodchat service will be
sent, and certify that any subscriber list you decide to import into Goodchat was
collected, in compliance with all applicable federal, provincial, state, and local laws,
regulations, and rules governing SMS messages, advertising, and telemarketing,
including, without limitation, Section 5 of the FTC Act (15 U.S.C. § 45), the CAN-SPAM
Act (15 U.S.C. §§ 7701-7713), the Telemarketing Consumer Fraud and Abuse Prevention Act
(15 U.S.C. §§ 6101-6108), the Federal Trade Commission Telemarketing Sales Rule (16
C.F.R. § 310 et seq.), the Telephone Consumer Protection Act (47 U.S.C. §§ 227), the
Federal Communications Commission regulations (47 C.F.R. 64.1200 et seq.) and orders
implementing the Telephone Consumer Protection Act, all federal and state Do Not Call
and calling-time restriction laws and regulations, and, as applicable for SMS to
Canadian numbers, the CRTC's Unsolicited Telecommunications Rules, including the CRTC
Telemarketing Rules, National DNCL Rules, and Automatic Dialing and Announcing Device
Rules, Telecom Decision CRTC 2007-48, as amended.; and all applicable industry
guidelines and best practices, including, without limitation, the CTIA Short Code
Monitoring Handbook and Messaging Principles and Best Practices (collectively,
"Applicable Message Requirements"). Goodchat provides the software and
carrier-connectivity through which you send your messages; you are solely and
exclusively responsible for complying with Applicable Message Requirements (and for
defending and indemnifying Goodchat from any claims in which it is alleged that you
failed to do so). If for any reason Goodchat suspects that your use of its Services in
any way is contrary to any Applicable Message Requirements, it reserves the right to
request a written explanation from you, the client, including the method of collecting
the subscriber's phone numbers and a guarantee signed by you that all the people on your
subscriber list provided you prior express written consent to receive text messages from
you of the type that you had sent. You agree to provide all such information and
documents reasonably requested by Goodchat. Goodchat reserves the right to take any
action it thinks appropriate in the case of non-compliance, including but not limited to
suspension and/or cancellation of the account, without any liability to you therefor.
- You represent and warrant that you are aware that, among other requirements, the TCPA
requires prior express written consent from a consumer before you can send them
marketing text messages using an autodialer, with no purchase required as a condition of
their consent, and such consent must be clear and conspicuous. Furthermore, damages for
each message sent in violation of the TCPA is $500 and can be $1500 if the violation is
proven to be "willful and knowing."
- You agree that you will include clear opt-out/unsubscribe information on your messages
when required to do so by any applicable law or regulation and otherwise adhere to the
Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association, if
applicable to your messages, and that you will promptly process all such do-not-text or
do-not-call requests and maintain those numbers on your internal do-not-call/text list.
- You shall schedule your messages responsibly and in a manner that is courteous to the
recipients pursuant to local, state, national, and international calling time rules and
regulations. You are solely responsible for obtaining any rights or licenses to any
data, including without limitation sound files, pictures or videos for inclusion in any
outbound messages. If you are unfamiliar or unclear on the legalities of any message
that you intend to initiate through the Services, you must consult with your attorney
prior to your use of the Goodchat Sites or Services.
- You represent and warrant that you have all power and authority and have procured all
rights and licenses necessary to use and text enable those Phone Numbers utilized for
Goodchat services. In the case of shared use Phone Numbers, you expressly represent that
you are the Phone Number Owner.
DOWNTIME & REFUND POLICY - For purposes of this Agreement, a Unit of Downtime is one period of at least 1 day
during which access to Goodchat.co is unavailable because of problems with hardware or
system software. Downtime does not include:
- problems caused by factors outside of our reasonable control
- problems resulting from any actions or inactions by you or any third party
- problems resulting from your equipment and/or third party equipment not within our
sole control, or
- network unavailability during scheduled maintenance of our network and/or web
servers.
- In any calendar month, we guarantee that Downtime will not exceed 1 Unit of Downtime
excluding, however, regularly scheduled maintenance. Any regularly scheduled maintenance
will be performed during the hours of 6pm and 8am. We work to ensure the functioning of
all web servers through continuous monitoring by our staff.
- If Downtime exceeds 1 Units of Downtime in any calendar month, we will, upon your
written request, credit your account (a "Downtime Credit") in an amount equal to the
pro-rata price for one (1) day of service, for each instance of Downtime as that term is
defined herein.
- To receive Downtime Credit, you must request such credit by sending an email to
[email protected] within seven (7) days after the occurrence of Downtime. The
aggregate maximum number of Downtime Credits to be issued for any and all instances of
Downtime occurring in a single calendar month will not exceed seven (7). Downtime
Credits will be applied upon issue of the first invoice following the request for
Downtime Credit, unless the Downtime occurs in your final month of service. In such
case, a refund for the dollar value of the Downtime Credit will be mailed to you within
thirty (30) days of the expiration of your service agreement.
- If you are unhappy with any aspect of our service, please contact us and we will attempt
to rectify the situation. Because we are providing a service, which starts when you
create the account, we can not provide a refund except when the service has not been
acceptable. This is at our discretion only. No refunds will be made if we terminate your
account due to violation of our Acceptable Use Policy or any other violation of our
Terms and Conditions, except as may be provided therein. This does not affect your
statutory rights. No bill credit will be given for a period of suspension.
CONTENT SUBMITTED OR MADE AVAILABLE FOR INCLUSION ON THE SERVICE.
Goodchat
does not claim ownership of Content you submit or make available for inclusion on the Service.
However, with respect to Content you submit or make available for inclusion on publicly accessible
areas of the Service, you grant to Goodchat the following worldwide, royalty-free and non-exclusive
license to use, distribute, reproduce, modify, adapt, publicly perform and publicly display such
Content on the Service and elsewhere for the purpose for which such Content was submitted or
made available and also for the purpose of providing and promoting the Service to which such
Content was submitted or made available.
INDEMNITY.
You agree to defend, indemnify and hold Goodchat, and its affiliates,
officers, agents, and employees harmless from any proceeding, suit, claim or demand, including
reasonable attorneys' fees, made by any third party relating to, alleging or arising out of Content
you submit, post, transmit or make available through the Service, your use of the Service, your
connection to the Service, your alleged violation of this Agreement, your alleged violation of
any rights of another, or your alleged violation of any law ("Indemnifiable Claims"), and to
indemnify Goodchat from any damages, awards, attorneys' fees, and costs awarded against or incurred
by Goodchat in connection with any such Indemnifiable Claims. As a condition of the foregoing
indemnification obligations, (a) Goodchat will provide you prompt notice of any such Indemnifiable
Claim, provided, however, that the failure to give such prompt notice shall not relieve you of
your obligations hereunder except to the extent that you were actually and materially prejudiced
by such failure; (b) you will have the sole and exclusive authority to defend or settle any such
Claim (provided that you will obtain our consent in connection with any act or forbearance required
by Goodchat, which consent will not be unreasonably withheld); and (c) Goodchat will reasonably
cooperate with you in connection with your activities hereunder, at your expense. Goodchat reserves
the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything
herein to the contrary, you will not settle any Claims for which you have an obligation to indemnify
pursuant to this Section admitting liability or fault on behalf Goodchat, nor create any obligation
on behalf of Goodchat without its prior written consent.
GENERAL PRACTICES REGARDING USE AND STORAGE.
You acknowledge that Goodchat
may establish general practices and limits concerning use of the Service but that Goodchat has
no responsibility or liability for the deletion or failure to store any messages and other communications
or other Content maintained or transmitted by the Service.
MODIFICATIONS TO SERVICE.
Goodchat reserves the right at any time and
from time to time to modify or discontinue, temporarily or permanently, the Service (or any part
thereof) with or without notice. You agree that Goodchat shall not be liable to you or to any
third party for any modification, suspension or discontinuance of the Service.
TERMINATION.
You agree that Goodchat may, under certain circumstances
and without prior notice, immediately terminate your Goodchat account, any associated text message
address and/or email address, and access to the Service. Cause for such termination shall include,
but not be limited to, (a) breaches or violations of this Agreement or other incorporated agreements
or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by
you (self-initiated account deletions), (d) discontinuance or material modification to the Service
(or any part thereof), (e) unexpected technical or security issues or problems, (g) your engagement
in fraudulent, illegal or improper activities, (h) third party operator requirement, and/or (i)
nonpayment of any fees owed by you in connection with the Services. You may terminate your access
and use of the Service upon prior written notice to Goodchat. In no event shall you be entitled
to a refund of any fees paid to Goodchat hereunder.
GOODCHAT'S PROPRIETARY RIGHTS.
Title, ownership rights and all intellectual
property rights in and to the Services shall remain the sole and exclusive property of Goodchat.
Goodchat retains all rights not expressly granted to you in this Agreement. You are prohibited
from attempting, or knowingly permitting or encouraging others to attempt, to reverse engineer,
decompile, disassemble, or otherwise attempt to determine source code or protocols from the Services
except and only to the extent permissible by applicable law despite such prohibition. You agree
not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose,
any portion of the Service (including your Goodchat I.D., account, account designation, password
and other Goodchat information), use of the Service, or access to the Service.
DISCLAIMER OF WARRANTIES. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
- YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND
"AS AVAILABLE" BASIS. Goodchat EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
- Goodchat MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE
SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY
BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY
OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU
THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, (V) ANY ERRORS IN THE SOFTWARE WILL BE
CORRECTED (VI) THAT THE INTERNET WILL BE AVAILABLE AND WILL PERFORM.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM Goodchat OR
THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
LIMITATION OF LIABILITY. - YOU EXPRESSLY UNDERSTAND AND AGREE THAT Goodchat SHALL NOT BE LIABLE TO YOU FOR ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT
NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE
LOSSES (EVEN IF Goodchat HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING
FROM: (a) THE USE OR THE INABILITY TO USE THE SERVICE; (b) THE COST OF PROCUREMENT OF
SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES
PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM
THE SERVICE; OR (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR
CONTENT.
- YOU EXPRESSLY UNDERSTAND AND AGREE THAT Goodchat's service providers disclaim all
liability with regard Goodchat's customers, whether direct, indirect, incidental,
consequential, punitive or otherwise, arising out of or related to the use of the
services provided under this Agreement. You hereby release Goodchat's service providers
from and against all claims, liability and damages arising out of or related to Company
Customer's use of the services provided under this Agreement. Company Customer will be
solely responsible for any third party claims, damages and liability arising out of,
resulting from or caused by Company Customer's use of the Services provided under this
Agreement including, without limitation, any claims, damages and liability arising out
of, resulting from or caused by any Message or Content generated by Company Customer.
EXCLUSIONS AND LIMITATIONS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
NOTICE.
Goodchat may provide you with notices, including those regarding
changes to the Agreement, by either text message, e-mail, regular mail, or postings on the Service.
TRADEMARK INFORMATION.
The trademarks, service marks, logos and product
and service names of Goodchat are trademarks of Network Capital, LLC (the "Goodchat Marks").
You agree not to display or use in any manner, the Goodchat Marks without Goodchat' express prior
written consent.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY
INFRINGEMENT.
Goodchat respects the intellectual property of others, and we ask our users to do the same. Goodchat
may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts
of users who may be repeat infringers. If you believe that your work has been copied in a way
that constitutes copyright infringement, or your intellectual property rights have been otherwise
violated, please provide the following information to Goodchat' Copyright Agent:
- an electronic or physical signature of the person authorized to act on behalf of the
owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has
been infringed;
- a description of where the material that you claim is infringing is located on the site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not
authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your
Notice is accurate and that you are the copyright or intellectual property owner or
authorized to act on the copyright or intellectual property owner's behalf.
Notice of claims of copyright or other intellectual property infringement should be addressed
to: Network Capital, LLC, ATTN: Goodchat Legal, 1395 Brickell Ave. Suite 800, Miami, FL, 33131.
You may also email us:
[email protected] GENERAL INFORMATION.
Choice of Law and Forum. This Agreement and the relationship between you and Goodchat shall be
governed by the laws of the State of Delaware without regard to its conflict of law provisions.
You and Goodchat agree to submit to the personal and exclusive jurisdiction of the courts located
within New Castle, Delaware.
Waiver and Severability of Terms. The failure of Goodchat to exercise or enforce any right or
provision of this Agreement shall not constitute a waiver of such right or provision. If any
provision of this Agreement is found by a court of competent jurisdiction to be invalid, the
parties nevertheless agree that the court should endeavor to give effect to the parties' intentions
as reflected in the provision, and the other provisions of this Agreement remain in full force
and effect.
Non-Transferability. You agree that your Goodchat account is non-transferable, and this Agreement
may not be assigned by you without Goodchat's prior written consent.
Entire Agreement. This Agreement constitutes the entire agreement between you and Goodchat and
governs your use of the Service, superseding any prior agreements between you and Goodchat with
respect to the Service. You also may be subject to additional terms and conditions that may apply
when you use or purchase certain other services from Goodchat.
DEFINITIONS.
"Network Operator" means any mobile network operator, wireless service provider, wireless carrier,
cellular company, Third Party operator or user of a communications network to and from which
Goodchat can directly transmit and receive Messages.
"Third Party" means any Person not a Party to this Agreement.
"Third Party Charges" means any fees or charges that any Third Party imposes on Goodchat in connection
with any Services, including without limitation Service and Transit Fees.
"Transit Fees" means any fees imposed by a Network Operator or Third Party for the delivery of
any Message