TERMS OF SERVICE
IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE WE DO NOT CONSENT TO YOUR USE OF THE SERVICES PROVIDED HEREIN AND YOU MUST EXIT IMMEDIATELY AND NOT USE OUR SERVICES. BY USING THE SERVICES YOU AGREE TO THESE TERMS OF SERVICE.
These Terms of Service (the “Terms of Service”) govern use of the free Message Systems University service (the “Free Service”) and the subscription Message Systems University service (the “Subscription Service”, and, together with the Free Service, the “Services”, and each individually a “Service”), each as owned or controlled by Message Systems, Inc. (“Service Provider”) where these Terms of Service are located. In these Terms of Service “You” and similar pronouns collectively means: 1) the individual person actually logging in and using the applicable Service; 2) the entity or business employer of the person using the applicable Service (provided however that if the entity or business has a written agreement with Service Provider expressly indicating that it governs use of the applicable Service, then the written agreement shall control over and supersede any conflicting terms or conditions herein); and/or 3) Authorized Persons. These Terms of Service are effective upon Your use of the Services, such use constituting an agreement to these terms (the “Effective Date”).
1. Your Obligations and Acknowledgements. You shall be solely responsible for complying with these Terms of Service maintaining the confidentiality of all user names and passwords and secure access to all user names and passwords only to “Authorized Persons” – in this Agreement “Authorized Persons” means You and persons who access or use the Service with Your consent for purposes specifically related to Your internal business use of the Service; provided that You represent that, warrant and agree that You and all such Authorized Persons are not competitors, or agents of competitors, of Service Provider. Nothing in these Terms of Service shall modify the license agreement between Service Provider and any licensees thereof.
2. Ownership Acknowledgment. All rights and property interests, including but not limited to patents, copyrights, trade secrets, trademarks and other proprietary rights recognized under applicable law in or relating to the Service and all modifications, adaptation, derivative works and enhancements thereto, are owned exclusively by Service Provider and/or its licensors. All rights not expressly granted herein are reserved to Service Provider. Notwithstanding the above, Service Provider shall not acquire through these Terms of Service any ownership interest in any of Your confidential information.
3. Term; Termination. You and Authorized Persons may access the Subscription Service only during the term specified in the applicable order form or other contract pursuant to which such Subscription Service is purchased and so long as You and Authorized Persons comply with these Terms of Service. You and Authorized Persons may access the Free Service only during the term specified by Service Provider (it being expressly understood that Service Provider may terminate such term at any time) and so long as You and Authorized Persons comply with these Terms of Service. Your right and the right of Authorized Persons to access and use the Services automatically terminate if You or Authorized Persons violate these Terms of Service. After termination, any provision that by its nature survives shall survive termination of this Terms of Service including without limitation Sections 2 and 4.
4. Non-Disclosure and Confidentiality. You and Authorized Persons agree to keep confidential, not to, directly or indirectly, copy, reproduce, reverse engineer, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed or otherwise transfer any information provided in the Service (“Company Information”). You and Authorized Persons agree to use Company Information only for the purpose of training concerning Service Provider’s software and services. Service Provider agrees that to the extent You or Authorized Persons provide Service Provider with any confidential information in connection with use of the Service, Service Provider will comply with its confidentiality agreements in the software license agreement with You (or Your employer).
5. Privacy Statement. Service Provider has developed a policy for the Services setting forth Service Provider’s procedures regarding its use and disclosure of nonpublic personal information relating to individual persons. Service Provider shall provide You with thirty (30) days prior notice via electronic means of any material modification, amendment or supplement to the Privacy Statement. Notwithstanding anything herein to the contrary, Service Provider shall not be held liable for any improper use or disclosure of nonpublic personal information by You, an Authorized Person or any third party not under Service Provider’s direction or control.
6. Warranties and Covenants. You covenant that You shall: (i) use the Services in compliance with all applicable laws, rules and regulations; (ii) not post on or provide for the Services any material that infringes the trademarks, copyrights or other intellectual property rights of third parties or that violates a right of privacy or constitutes defamation or violation of third party rights; (iii) not alter, recast, revise, modify, translate, reformat, reverse engineer, compile, disassemble or decompile the Services or any portion thereof; (iv) make no representations to Authorized Persons or third parties regarding the Services or Service Provider that are not expressly authorized to be made in these Terms of Service; (v) maintain secure and confidential all access and login credentials and only allow Authorized Persons to access and use the Service; and (vi) cooperate with Service Provider in its provision of the Services including providing such technical assistance and information as reasonably requested by Service Provider.
7. Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WHETHER ORAL OR WRITTEN, AND SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, ANY IMPLIED WARRANTY AGAINST INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING UNDER ANY APPLICABLE COMPUTER INFORMATION TRANSACTIONS ACT. THERE IS NO WARRANTY THAT THE SERVICE OR ANY EFFORTS OR INFORMATION PROVIDED BY SERVICE PROVIDER WILL FULFILL ANY OF YOUR PARTICULAR PURPOSES OR NEEDS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, SERVICE PROVIDER SHALL NOT BE LIABLE FOR THE QUALITY OR ACCURACY OF INFORMATION PROVIDED BY YOU OR THIRD PARTIES FOR OR VIA THE SERVICE NOR FOR ANY INACCURATE RESULTS DUE TO SERVICE PROVIDER’S PROCESSING OF ANY SUCH DATA. SERVICE PROVIDER MAKES NO GUARANTEE OR WARRANTY OF TIMELINESS OF DELIVERY OF THE SERVICES TO, OR PROCESSING OF ANY INFORMATION OR DATA PROVIDED BY, YOU.
8. Indemnification. Each party agrees to indemnify, defend and hold harmless the other party, its subsidiaries, associated companies, employees and agents from and against any and all damage, liability, cost and expense (including reasonable attorneys’ fees) incurred as a result of a third party claim (including claims of Authorized Persons) arising from: (i) the gross negligence or willful misconduct of such party or such party’s employees or contractors; (ii) such party’s material breach of any provision of these Terms of Service; or (iii) violation of applicable laws, rules, regulations or orders. Notwithstanding the above, neither party shall be liable to the other party to the extent that such other party has incurred any liability to a third party as a result of its own material breach of these Terms of Service, negligence or intentional misconduct, or violation of applicable law, rules, regulations or orders. The obligations of each party to provide indemnification are contingent upon the indemnified party: (i) promptly notifying the indemnifying party in writing of any claim; (ii) giving the indemnifying party sole control over the defense and settlement of the claim, provided that any settlement contains the full release of the indemnified party; and (iii) reasonably cooperating in defense and settlement efforts. Notwithstanding any non compliance with such notice requirements, the indemnified party shall only be prevented from recovery to the extent the late notice actually prejudiced the defense of such claim.
9. LIMITATION OF LIABILITY. EXCEPT FOR A CLAIM OF INDEMNIFICATION FOR A THIRD PARTY CLAIM, YOUR SOLE REMEDY IN THE EVENT OF A CLAIM AGAINST SERVICE PROVIDER FOR BREACH OF THESE TERMS OF SERVICE SHALL BE FOR SERVICE PROVIDER TO REPAIR, REPLACE OR OTHERWISE CORRECT THE SERVICE; (ii) IN NO EVENT WILL SERVICE PROVIDER, ITS SUBSIDIARIES AND/OR ASSOCIATED COMPANIES, BE LIABLE TO YOU UNDER THESE TERMS OF SERVICE OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS $500; (iii) IN NO EVENT WILL SERVICE PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES OR ASSOCIATED COMPANIES BE LIABLE FOR ANY COMPENSATORY DAMAGES TO YOU, ANY OF YOUR OFFICERS, DIRECTORS, STOCKHOLDERS, SUCCESSORS OR ASSIGNS, OR ANY THIRD PARTY, UNDER THESE TERMS OF SERVICE OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION; AND (iii) IN NO EVENT WILL EITHER PARTY, ITS SUBSIDIARIES OR ASSOCIATED COMPANIES BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES), OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE SERVICES OR ANY PORTION THEREOF, LOSS OF DATA, FALSE OR ERRONEOUS INFORMATION TRANSMITTED VIA THE INTERNET OR IN CONNECTION WITH ANY CLAIM ARISING FROM THESE TERMS OF SERVICE, EVEN IF SUCH PARTY, ITS SUBSIDIARIES OR ASSOCIATED COMPANIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
10. Independent Construction. The parties expressly agree that the limitations of liability and remedy in Section 9 are to be construed as independent obligations and rights of the parties, and not dependent on the performance of, or subject to the non performance of, any other term or condition herein. For the avoidance of doubt, the parties expressly agree that the limitation of remedy in Section 9 (and all other specific limitations of remedy and liability) is/are independent obligations of the parties and that, if such limitation fails of its essential purpose or is otherwise deemed or found to be unenforceable, then the other limitations herein shall survive and continue in force.
11. Reservation of Rights. Service Provider reserves all rights not expressly granted herein. Except as expressly set forth in these Terms of Service, no express or implied license or right of any kind is granted to You regarding the Services, including but not limited to any right to know, use, produce, receive, reproduce, copy, market, sell, distribute, transfer, translate, modify, adapt, disassemble, decompile or reverse engineer any software, create derivative works based on, or obtain possession of any source code of, or technological material relating to, the Services or any portion thereof. Service Provider expressly reserves the right to terminate an Authorized Party’s use of the Services for default of these Terms of Service without terminating these Terms of Service and without liability to You. Service Provider, You, and the permitted successors or assigns, are the sole intended beneficiaries of these Terms of Services, there are no other intended beneficiaries of these Terms of Service, and no such unintended beneficiary or third party shall have the right to sue on or enforce these Terms of Service.
12. Dispute Resolution. Except for solely equitable claims which may be pursued immediately and directly in court, all claims by a party for breach of these Terms of Service that are not resolved by mutual written agreement shall be settled by binding arbitration before a single arbitrator under the rules of the American Arbitration Association (the “AAA”). The location of such arbitration shall be in Maryland, at a location determined by the arbitrator. The parties shall agree on the arbitrator from a list provided by the AAA, but if they cannot, then the arbitrator shall be appointed under the rules of the AAA. Arbitration may be commenced by either party by giving written notice to the other party that the dispute has been referred to arbitration under this Section. Any award rendered by the arbitrator shall be conclusive and binding upon the parties, provided that any such award shall be accompanied by a written opinion giving the reasons for the award. This Section shall be specifically enforceable by the parties and the decision of the arbitrator may be filed under the Federal Arbitration Act or any equivalent state arbitration act as an award of arbitration and shall be a judgment of record in such court; provided however, that either party may appeal the decision of the arbitrator(s) as if such decision had been rendered by such court sitting without a jury, subject to all court rules and procedures for collection and stay of judgment. Each party shall pay its own expenses of arbitration and the expenses of the arbitrator(s) shall be equally shared, subject to Section 13.1 below. In all cases each of the parties irrevocably waive any and all right to demand a trial by jury of any claim arising out of or related to these Terms of Service or the performance or non performance of either party.
13.1. Applicable Law. These Terms of Service have been made, executed and delivered in the State of Maryland. The parties mutually stipulate and agree that these Terms of Service are in all respects (including, but not limited to, all matters of interpretation, validity, performance and breach) to be exclusively construed, governed and enforced in accordance with the laws of the State of Maryland and all applicable federal laws of the United States of America, as from time to time amended and in effect. The parties agree that the Uniform Commercial Code - Article 2 Sales, the United Nations Convention on Contracts for the International Sale of Goods, and the Electronic Signatures in Global and National Commerce Act shall not apply in any respect to these Terms of Service or the parties. In any litigation or arbitration between the parties, the prevailing party shall be entitled to, and the court or arbitrator(s) shall award, reimbursement of such party’s reasonable attorneys’ fees and costs.
13.2. Relationship of the Parties. Except as expressly provided herein, nothing in this Agreement shall be: (i) deemed to constitute a partnership or joint venture between the parties or be deemed to constitute one party as agent of the other, for any purpose whatever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose; or (ii) construed as a limitation on the powers or rights of either party to carry on its separate businesses for its sole benefit, including and not limited to the ability to enter into similar agreements with third parties, and each party shall take no action, directly or indirectly, which may prevent or hinder the other party from fulfilling its obligations to third parties.
13.3. Relief. Each party acknowledges that any violation of the confidentiality or intellectual property provisions of these Terms of Service will cause irreparable injury to the other party. Therefore, in addition to any other available remedies and damages, such other party shall be entitled to an injunction to restrain the violation thereof by the breaching party, its subsidiaries, agents, servants, employees and all personnel acting for or with it (without the requirement to post a bond or security). Nothing herein shall be construed as prohibiting a non-breaching party from pursuing any other available remedy for breach or threatened breach of these Terms of Service, including actual damages and reasonable attorney’s fees.
13.4. Assignment. Either party may assign these Terms of Service at any time without a fee and without the consent of the other party to a corporate successor in interest, acquiror or other entity that purchases or obtains substantially all of the assets or stock of such party, provided that such transferee is not a competitor of Service Provider and agrees in writing to be bound by the provisions of these Terms of Service in the place of such party. Except as set forth above, You may not assign or delegate these Terms of Service without Service Provider’s prior written consent, which shall not be unreasonably withheld.
13.5. Notice. All written communications between the parties shall be sent by First Class Mail or recognized courier, properly prepaid, or by electronic mail or facsimile. All such communications shall be deemed received upon the earlier of: (i) actual receipt; or (ii) upon receipt by the transmitting party of confirmation or answer-back (if delivery is by facsimile or electronic mail). By written communication, either party may designate different contact information for purposes hereof.
13.6. Entire Agreement; Amendments. These Terms of Service and all documents referenced herein represent the entire understanding between the parties with respect to the subject matter hereof and supersede all other prior written or oral agreements between the parties with respect to the subject matter hereof. Service Provider may modify these Terms of Service by giving notice thereof on the Services near the login screen. Your use of the Services after a notice of amendment has been made shall be deemed to be an acceptance of the modifications, subject however to any restrictions under applicable law. In the event of any direct conflict between these Terms of Service and any document referenced herein (other than a mutually executed written agreement), the terms of these Terms of Service shall control.
13.7. Severability. If any provision hereof is declared invalid or unenforceable by a court of competent jurisdiction, then the meaning of that provision will be interpreted, to the extent feasible, in a way that renders it enforceable or valid. If no feasible interpretation is possible, the provision will be severed from these Terms of Service and the remainder of these Terms of Service will remain in full force and effect.
13.8. Counterparts. This Agreement may be signed in any number of counterparts all of which together shall constitute one and the same document. A signed copy of this Agreement transmitted via facsimile, email or other electronic means shall constitute an originally signed Agreement and, when together with all other required signed copies of this same Agreement shall constitute one and the same instrument.
13.9. No rule of adverse construction. The parties agree that this Agreement has been mutually negotiated and that each party has been afforded the opportunity to consult with attorneys and other advisors; as a result, no rule of adverse construction shall be applied to either party as the primary draftsperson hereof.
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