Terms and Conditions for PALO MEDIA GROUP, LLC Services
1. ACCEPTANCE OF TERMS
a. BY USING ANY OF THE SERVICES, YOU CONFIRM YOUR ACCEPTANCE OF, AND AGREE TO BE BOUND BY, THIS AGREEMENT.
b. We may amend the Agreement at any time, and such amended Agreement will automatically be effective seven (7) days after we have posted the amended Agreement on our website. Your continued use of the Services will constitute acceptance of the amended Agreement, and no other Agreement version will be effective or enforceable against us.
c. The rights granted to you under this Agreement are expressly non-exclusive. You may not sell, assign, sublicense, or otherwise transfer or agree to transfer all or any portion of those rights without our prior written consent.
d. We may reject this Agreement for any reason or no reason, prior or subsequent to acceptance of the Agreement. Activation of our Services shall indicate our acceptance, but does not obligate us to provide or continue to provide access to any or all Services, such access will instead be provided in our discretion.
2. REQUIREMENTS FOR PALO MEDIA GROUP, LLC SERVICES
a. You must either: (i) enter into a separate agreement with us describing the specific terms and conditions of the Services to be provided to you, or (ii) complete the registration process made available to you by us or by our partner(s), and such registration must be approved by us. Such separate agreement or registration process may be in one or more different formats and may be made available to you either online or offline, subject to change without prior notice.
b. Our Services are offered only to parties that can legally enter into and sign binding contracts. By accepting the terms of this Agreement, you represent and warrant to us that you are age eighteen (18) or older and the authorized signatory.
c. In consideration of the Services, you agree to: (i) provide current, complete, and accurate information about your identity, location, contact information, internet access and telecommunications Services as are required by us to provide our Services; (ii) maintain and update the information as required to keep such information current, complete, and accurate; (iii) use our Services only in accordance with applicable law; (iv) comply with United States law regarding the transmission of technical data exported from the United States through our Services; (v) not use our Services for illegal purposes; (vi) not interfere with or disrupt networks connected to our Services; (vii) comply with all applicable laws, rules, regulations, policies and procedures of networks connected to our Services; and (viii) with respect to our Services, transfer calls only to legitimate recipients and/or destinations.
3. PALO MEDIA GROUP, LLC SERVICES
a. When using the Services, you shall be subject to any posted guidelines, rules, or licenses applicable to such Services, this Agreement, or any other separate agreement between us. Such guidelines, rules, or licenses may contain terms and conditions in addition to those described in this Agreement.
b. We may refuse the Services to anyone at any time, in our sole discretion. We reserve the right to discontinue, temporarily or permanently, any or all of the Services to you, including by shutting down phone numbers, at any time, provided we will make reasonable efforts to notify you within twenty-four (24) hours of doing so. However, we reserve the right to discontinue any or all of your use of the Services immediately and with no prior or subsequent notice required if we suspect you may be in breach of your obligations under this Agreement. We will refund you any unused amounts we have charged you for prepaid Services that we discontinued; as such amounts are determined by us in our discretion. We shall not be liable to you or any third-party for any termination of your access to the Services except as specifically set forth in this Agreement.
c. You agree that we will not be liable for damages (including consequential or special damages) arising out of any change of assigned telephone number(s), and you hereby waive any claims with respect to any such change, whether based on contractual, tort or other grounds, even if we have been advised of the possibility of damages. We reserve the right to withdraw telephone numbers from Services at our discretion when we determine that a telephone number is receiving insufficient use. You acknowledge that our policies and practices with regard to recapturing and repurposing telephone numbers may change from time-to-time at our discretion.
f. The Services are designed to be used in conjunction with local exchange telephone, wireless telephone, or equivalent telecommunications services that the Member procures from a third-party provider rather than as a substitute or replacement for such third-party telecommunications services. EMERGENCY SERVICES CANNOT BE ACCESSED BY ORIGINATING CALLS TO 911 USING THE SERVICES. You understand and acknowledge that emergency services cannot be accessed by originating calls to 911 using the Services. You understand and acknowledge that you must have and use a different means of contacting 911 emergency services.
fgk. Neither us nor any of our affiliates, subsidiaries, parent companies, agents, network services providers, contractors, suppliers, partners, officers, directors or employees are or will be liable to any extent or in any manner whatsoever for the inability of persons to access emergency services by originating a call to 911 using the Services. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS US, OUR AFFILIATES, SUBSIDIARIES, PARENT COMPANIES, AGENTS, NETWORK SERVICE PROVIDERS, CONTRACTORS, SUPPLIERS, PARTNERS, OFFICERS, DIRECTORS OR EMPLOYEES IN CONNECTION WITH THE SERVICES FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, LIABILITIES, EXPENSES (INCLUDING BUT NOT LIMITED TO ATTORNEYS’ FEES), PENALTIES, FINES, DEATH, INJURY TO PERSONS OR DAMAGES TO TANGIBLE PROPERTY ARISING BY VIRTUE OF OR RELATING TO THE ABSENCE OF 911 SERVICE AND/OR THE INABILITY OF MEMBER OR ANY THIRD PERSON OR PARTY TO BE ABLE TO DIAL 911 USING THE SERVICES. This Section 3 shall survive termination of this Agreement.
4. TERM OF AGREEMENT
a. The Services are offered on an open-ended basis for a term that begins on the date your Services are activated and you accept the Agreement (the “activation date”). This Agreement shall be deemed to be perpetually in effect without further action by you or by us unless either a) we terminate the provision of Services to you or b) you give us written notice of termination at least thirty (30) days prior to the intended date of termination for which notice is given.
b. If you terminate Services prior to the end of a campaign or otherwise defined term, you may be responsible for charges incurred by you subsequent to such termination, including without limitation unbilled charges, all of which immediately become due and payable.
c. Expiration of the term or termination of Services does not excuse you from paying all unpaid, accrued charges.
We or our partner(s) will charge you fees in accordance with the terms of either: (i) a separate agreement, or (ii) the registration process you complete. Unless otherwise stated, all fees are quoted in U.S. dollars. You are responsible for paying all fees associated with using the Services and all applicable taxes.
6. INTELLECTUAL PROPERTY; LIMITED LICENSE TO USERS
The Services are protected by copyright, trademark, patent, and/or other intellectual property laws, and any unauthorized use of the Services may violate such laws and this Agreement. Except as expressly provided herein, we do not grant any express or implied rights to use the Services. You agree not to copy, republish, frame, download, transmit, modify, rent, lease, loan, sell, assign, distribute, license, sublicense, reverse engineer, or create derivative works based on the Services, except as expressly authorized herein.
7. MODIFICATIONS OF PALO MEDIA GROUP, LLC SERVICES
a. We reserve the right to terminate or modify individual features of our Services from time to time with or without notice. In the event we opt to send written notice to you detailing such termination or modification, an email will be sent to the email address you most recently provided to us. Any such termination or modification will take effect upon the date of such written notice or such later date as specified therein. We are not responsible for confirming the receipt of any such notification.
b. We may, in our sole discretion, determine the extent, if any, to which any such modifications may impact the charges for the Services, but we shall not have any obligation to adjust the charges by reason of any such modifications.
c. We shall not be liable to you or any third party should we exercise our right to modify or terminate our Services or any feature of such Services.
8. REPRESENTATIONS AND WARRANTIES REGARDING YOUR CONDUCT
a. You shall, at all times, comply with applicable laws, statutes, ordinances, regulations, and legal guidelines in every jurisdiction in which you conducts business, including, without limitation, those related to the unfair, fraudulent, false or deceptive advertising, cybersquatting, infringement of intellectual property, privacy, and publicity rights, the Federal Trade Commission Act (“FTC Act”), Federal Trade Commission (“FTC”) regulations and guidelines implementing the FTC Act, all state and local counterparts to the FTC Act and associated regulations in every jurisdiction in which you conduct business, all state deceptive and unfair trade practices acts), the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act, the FTC’s Telemarketing Sales Rule, Federal Communications Commission regulations and guidelines, Mobile Marketing Association guidelines, and FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, all as amended from time to time.
b. Any/all creative advertising content that is published or distributed on behalf of third-party product/service provider clients of PALO MEDIA GROUP, LLC , shall be developed by such third-party clients of PALO MEDIA GROUP, LLC , or you. You shall not in any way modify, alter, misrepresent or exaggerate advertising offers, including creatives, texts, images, websites or landing pages, for the applicable products or services associated with advertising campaigns.
c. You shall at all times create, develop, and be responsible for, all advertising content, although there may be occasions when a third-party client of PALO MEDIA GROUP, LLC develops, and provides such advertising content for your use and distribution. You shall be solely responsible for the method by which the advertisements are published and distributed. Under no circumstances shall we be responsible for providing, developing, creating, or determining the accuracy, validity, appropriateness, or legality of our client’s or your advertising materials. Advertising materials shall not violate any rights of any third-parties and shall not include any information or content that is unlawful, unfair, deceptive, misleading, untruthful, unsubstantiated, or otherwise fails to comply with all applicable laws, rules or regulations. We shall not have any liability for claims arising from any advertising material, information or content created by third- parties, including the advertising materials created, developed, or used by you and our third-party advertising clients. We do not warrant the validity, legality, or accuracy of such advertising materials, or exercise any editorial control over such advertising materials, nor do we assume any legal obligation for editorial control of your and third-party product/service provider’s advertising materials, including any responsibility or liability for investigating or verifying the accuracy of any content or any other information contained in such advertising materials.
d. You represent, warrant and covenant that all of your advertising creatives and Services shall at all times comply with all applicable laws, rules and regulations. Additionally, you shall not use any third-party’s intellectual property, copyrights, trademarks, trade names, service marks, or brand names, without our express written consent and the third-party owner. You acknowledge and agree that we shall not have the ability to control, oversee, supervise, monitor, or manage your Services provided hereunder, including, without limitation, the services to be provided by you for us and our third-party clients, which consists of providing affiliate marketing or lead generation services for the advertising campaign(s) via the publication and distribution of advertising creatives on your websites, your emails or other approved marketing channels; the creation, development, performance, or distribution of offers; campaigns; and/or advertising creatives. We shall not be required to verify or confirm the accuracy or legality of your actions or inactions with respect to the services being provided, and as a result, you shall rely solely upon your own independent legal counsel, experts, and compliance consultants to ensure that you strictly comply with all applicable laws, rules and regulations. Therefore, you agree that you shall implement all necessary and adequate compliance controls and measures to ensure you comply with these Terms of Service, prior to and while providing the Services. We are relying on your material representations, warranties, and promises contained in these Terms of Service, and you agree that we shall not be liable, and you shall indemnify, defend and hold us harmless, for any violation of these Terms of Service and/or laws, rules and regulations that in any was relate to the advertising creative materials, campaigns, websites and marketing activities related to the Services.
e. You shall be fully liable for all use of your account, including any unauthorized use of such account by any third party. We bear no responsibility for communications received by you from third persons while using the Services or any use of any person’s telecommunications services, including but not limited to, your telecommunications services in connection with the use of the Services.
f. You shall not interfere with any third-party’s use and enjoyment of the Services.
g. You shall not use the Services to commit fraud or to promote any product or service that is illegal, pornographic or involves any adult services (whether or not legal).
h. You shall not use the Services to post on any website (whether hosted by you or that we host on your behalf) any content that is illegal, any content that violates the trademarks, copyrights or other intellectual property rights of a third party, any content that contains any adult or sexually explicit material, or any content that is false, defamatory or otherwise misleading in any way.
i. You shall not use the Services to offer products or services to, or to collect information from, any child under the age of 13.
j. When you post content (“User Content”) on our website or any webpage (whether hosted by you or that we host on your behalf), you represent and warrant: (1) that you are the owner of all User Content or that you have a license permitting you to post such content; (2) that the User Content is not illegal, false, defamatory or misleading in any way; and (3) that the User Content is not for the purpose of offering products or services to children under the age of 13.
k. We may, in our discretion, terminate the Services we provide you without notice if you fail to observe and comply with the terms of this Agreement. Failure on our part to actively terminate your account following any violation by you of this Agreement shall not constitute a waiver of our right to terminate and shall not prevent us from terminating you account, consistent with this Agreement, at any point for past and/or current violations of Agreement.
9. DISCLAIMER OF WARRANTIES
a. We expressly disclaim all warranties of any kind, whether expressed or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement.
b. We make no warranty that the Services will meet your requirements, or that the Services will be uninterrupted, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of our Services or as to the accuracy or reliability of any information obtained through our Services, or that defects in our Services will be corrected.
c. We will make commercially reasonable efforts to resolve any technical problems you may experience while using the Services.
10. LIMITATION OF LIABILITY
WE SHALL NOT HAVE ANY LIABILITY TO YOU FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES, BASED UPON A CLAIM OF ANY TYPE OR NATURE (INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT, INCLUDING NEGLIGENCE, WARRANTY OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL OUR LIABILITY, IF ANY, EXCEED THE AMOUNTS CHARGED TO YOU AND PAID BY YOU FOR THE SERVICE IN QUESTION. EXCEPT AS EXPRESSLY SET FORTH HEREIN, WE MAKE NO OTHER WARRANTIES TO YOU AND DISCLAIM ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
11. SERVICE OUTAGES
a. The Services are reliant upon independent services provided by third-parties that are beyond our control. The loss or interruption of any one of those independent services may prevent the Services from operating. We will use commercially reasonable efforts to manage all communications initiated by you and/or intended for you during any loss or interruption of such independent services.
b. Such independent services interruptions may include, but are not limited to:
i. Power outages;
ii. Internet Service Provider outages;
iii. Telecommunications services provider outages;
iv. Outages due to suspension of your account; and
v. Outages due to your failure to maintain the services used in conjunction with the Services.
c. We shall not be responsible for any delay or failure in performance that results from causes beyond its reasonable control (“Force Majeure Events”), whether or not foreseeable by such party. Such Force Majeure Events include, but are not limited to, adverse weather conditions, flood, fire, explosion, earthquake, volcanic action, power failure, embargo, boycott, war, revolution, civil commotion, act of public enemies, labor unrest (including, but not limited to, strikes, work stoppages, slowdowns, picketing or boycotts), inability to obtain equipment, parts, licenses, software or repairs thereof, acts or omissions of the other party, and acts of God.
d. Our ability to perform our obligations under this Agreement is dependent upon the availability of equipment and services from third parties (collectively, the “Vendors”) with whom we have contracted for the provision of telecommunications, internet services and equipment, and other third-party services used by us when providing the Services. You agree that we shall not be in breach of our obligations to you hereunder if we are prevented from performing such obligations by reason of the breach or other failure by any such Vendor to perform its obligations to us in accordance with the terms of such Vendor’s agreement with us.
You shall indemnify, defend, and hold us, our parent(s), subsidiaries, affiliates, officers, directors, and employees free and harmless from any and all claims, costs, damages, and expenses (including but not limited to reasonable attorneys’ fees), which arise from or are related to any act or omission by you in connection with the use of the Services, including but not limited to, any such claims, costs, damages, and expenses arising from or related to your violation of any terms of this Agreement, your violation of any applicable law, rule, or regulation, or any infringement by you (or any other person using the Services in reliance on your rights under this Agreement) of any intellectual property or other rights of any other person. This Section 12 shall survive termination of this Agreement.
a. Either you or we may terminate the Services with or without cause at any time (the “Termination”). Without limiting the foregoing, we reserve the right to cancel this Agreement or terminate any Services provided to you if one or more of the telephone numbers assigned to you is not legitimately used in conjunction with the Services during any period of thirty (30) consecutive days. Our failure to exercise this right in relation to any specific period of nonuse shall not preclude us from thereafter invoking its right to cancel the Agreement or terminate the Services.
b. All notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to us at the address set forth below or at such other address as we may hereafter designate within this Agreement:
Mail: PALO MEDIA GROUP, LLC
6 Main St Ext.
Plymouth, MA 02361
c. Notice shall be considered delivered and effective on the earlier of actual receipt or when (a) personally delivered; (b) the day following transmission if sent by facsimile when followed by written confirmation by overnight carrier or certified United States mail; or (c) one (1) day after posting when sent by overnight carrier; or (d) five (5) days after posting when sent by certified United States mail.
d. Notwithstanding the foregoing, an online termination process may be made available on our web site. If no such online termination process is made available, however, then the above requirements for notification shall be in effect for all such notices of your intent to terminate the Services.
e. Notwithstanding any other provision of this Agreement to the contrary, we shall not be liable to you or any third party, or responsible for any charges incurred for the termination of services you obtain from third-party providers.
f. Upon Termination, any telephone number(s) assigned to you for use with the Services will become unavailable for use and, after an aging period, be returned to the inventory of telephone numbers and become available for assignment by us. No telephone number will be available for your use or reserved for you after your Services have been terminated.
14. TRADEMARK AND PROPRIETARY RIGHTS TO CONTENT
Our trademarks, websites, corporate names, trade names, domain names, logos, and service marks (“Marks”) are the property of PALO MEDIA GROUP, LLC . You are not permitted to use the Marks without the prior written consent of PALO MEDIA GROUP, LLC . “PALO MEDIA GROUP, LLC ,” “PALO MEDIA GROUP, LLC ” and the PALO MEDIA GROUP, LLC logo are trademarks of PALO MEDIA GROUP, LLC , Inc. Further, you agree to abide by PALO MEDIA GROUP, LLC ‘s Guidelines for Use of PALO MEDIA GROUP, LLC Brand Elements (the “Guidelines”), which are incorporated herein by reference.
15. NO THIRD PARTY BENEFICIARIES
No provision of this Agreement provides any person or entity not a party to this Agreement with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.
All disputes which arise under this Agreement or in connection with the Services to be delivered hereunder and which are not resolved within thirty (30) days following the delivery by one party to the other of a written notice describing the dispute shall be resolved by binding arbitration under the rules of the American Arbitration Association before a single arbitrator in Santa Barbara, California. The decision of the arbitrator shall be final and binding on the parties, and judgment thereon shall be entered in a court of competent jurisdiction. YOU ACKNOWLEDGE AND AGREE THAT BY CONSENTING TO THIS AGREEMENT, YOU ARE CONSENTING TO BINDING ARBITRATION OF ALL DISPUTES HEREUNDER, AND THAT IN ARBITRATION, YOU SHALL NOT HAVE A RIGHT TO A JURY TRIAL, SHALL HAVE LIMITED DISCOVERY RIGHTS, AND SHALL HAVE VERY LIMITED RIGHTS OF APPEAL FROM THE DECISION OF THE ARBITRATOR.
NOTHING IN THIS SECTION 16: ARBITRATION IS INTENDED OR SHALL BE CONSTRUED TO MODIFY OR OTHERWISE BE INCONSISTENT WITH THE PROVISIONS OF SECTION 13: TERMINATION, ABOVE, WHICH SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF ANY MEMBER WHO OBJECTS TO ANY TERMS OF THIS AGREEMENT (OR ANY MODIFICATION HEREOF) OR BECOMES DISSATISFIED WITH ANY OF THE SERVICES.
The Agreement shall be governed by and construed in accordance with the internal laws of the State of California, excluding its conflict of law provisions. Subject to Section 16: Arbitration, above, and without limiting the applicability of any provisions there under, we and you agree to submit to the exclusive jurisdiction of the courts of the State of California and further agree that the exclusive venue for any cause of action arising under or relating to this Agreement or the Services provided hereunder shall be the Superior Court in and for Santa Barbara County, California, sitting in the City of Santa Barbara, California. We and you agree that any cause of action arising out of or related to the Agreement or the Services must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
If any provision of the Agreement is determined by an arbitrator or court of competent jurisdiction to be contrary to applicable law, then such provision shall be construed as nearly as possible to conform to applicable law and the other provisions of this Agreement shall remain in full force and effect.
The Agreement (i) constitutes the entire agreement between the parties supersedes all prior agreements between the parties regarding the subject matter contained herein, and (ii) may be modified or amended only in the manner expressly set forth herein.
We at any time and from time to time may assign our rights and delegate our duties under this Agreement without your prior consent. You may not assign this Agreement to any other person under any circumstances without our express prior written consent.
Our failure to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing.
The section titles in the Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
You may contact us by:
Mail: PALO MEDIA GROUP, LLC
6 Main St Ext.
Plymouth, MA 02361
IN WITNESS WHEREOF the parties have caused this Exclusive Distribution Agreement to be executed and delivered by their duly authorized representatives