833-999-DATA (3282)

10632 North Scottsdale Road
Suite 543
Scottsdale AZ, 85254

©2019 by DataOwl LLC

DATAOWL TERMS OF SERVICE

1. Overview

 

Welcome to the family of sites provided by Dataowl LLC and its affiliates (“Dataowl”). This agreement applies to all of the websites on which it is posted including without limitation dataowl.io (collectively the “Dataowl Sites”). Use and access to the Dataowl Sites (including any rebranded or white label version of the Dataowl Sites), and the Services (as defined below), are subject to these terms and conditions of use (the “Terms”) as well as our Privacy Policy located at: https://www.DataOwl.io/legal-privacy-policy, which is made a part of these Terms, and our Anti-Spam Policy located at:

https://www.DataOwl.io/spam-policy, which is made a part of these Terms.

 

We reserve the right to change these Terms from time to time. Any updates to these Terms shall be posted on this website. You acknowledge your responsibility to review these Terms from time to time and to be aware of any such changes. By continuing to use any of the Dataowl Sites or Services after we post any such changes, you accept these Terms, as modified. By accessing one of the Dataowl Sites or our Services, you accept these Terms and certify that you have reviewed these Terms are within or have reached the age of majority in your jurisdiction or age 18 (whichever is greater).

 

IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, PLEASE LEAVE THIS WEBSITE BY CLOSING YOUR INTERNET BROWSER WINDOW NOW. IF YOU DO NOT INTEND ON USING THE SERVICES IN ACCORDANCE WITH THESE TERMS, DO NOT UTILIZE THE SERVICES PROVIDED BY DATAOWL.

 

2. The Services

 

Services described on the Dataowl Sites may or may not be available in all countries or regions of the world, may be available under different trademarks in different countries and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries. You agree to use the Dataowl Services in accordance with all applicable guidelines as well as all state and federal laws that the Services are subject to.

The Services consist of one or more of the following: a web-based interface, access to incoming telephone number or keywords, Direct Inward Dialing Numbers (“DIDs”), messaging applications, voice broadcast applications, SMS and MMS gateway access, data encryption, data transmission, data access, data storage and, if applicable, synchronization software, as well as software maintenance and upgrades and customer support, that enable you to send SMS messages, MMS messages and/or voice broadcasts to recipients designated by you (collectively, the “Services”).

 

We transmit messages initiated by you or sent to you by others through different routes, and the level of reliability and support for special features varies according to the route. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Services, and for paying all access charges (e.g., ISP, telecommunications) incurred while using the Services.

 

Dataowl only provides that the Services are processed correctly and further transmitted by Dataowl to the applicable downstream network. Dataowl is not responsible for the final delivery of any communication initiated by you through the Services, as this is out of our control and is the responsibility of downstream communications carriers.

 

Dataowl transmits and receives voice, SMS, and MMS messages via other major telecommunications companies and mobile network operators, and thus Dataowl’s influence over the timing of the transmission of your messages is within the technical constraints imposed upon Dataowl. While Dataowl uses commercially reasonable efforts to transmit your messages and broadcasts to the applicable network for final delivery to your designated recipients in a timely manner, we cannot commit to, and do not guarantee, a specific delivery time. Such times depend on various network and system-related factors among the various entities involved in the transmission of your messages across the public switched telephone network and/or Internet. You should know that communications carriers assign messages with a default lifetime and any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. Dataowl is not liable for any loss incurred by the failure of a message to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from Dataowl for any such non-deliveries. Furthermore, you agree that message contents are deemed to have zero value.

 

3. Usage Policy

 

You represent and warrant that the owners of the phone numbers you initiate messages to through the Dataowl Services have consented, or otherwise opted-in, to the receipt of such messages and broadcasts as required by our Anti-Spam Policy and as required by any applicable law or regulation.

 

To assure compliance with opt-in requirements, Dataowl will send an initial opt-in confirmation message (the “Opt In Confirmation”) before any other messages are sent to any phone number on your list that is substantially similar to:

 

“Welcome to [your Campaign Name/Entity Name] Promo Alerts. Msg&data rates may apply. Max 20 msgs/mo. Rply STOP to cancel.”

 

The initial Opt In Confirmation message may be modified by Dataowl 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.

 

The Opt In Confirmation will count as an SMS that is charged to your account.

 

Whenever any phone number on your list messages STOP to cancel and opt out of any future messages from your organization Dataowl will send an automatic confirmation response (the “Opt Out Confirmation”) on your behalf that is substantially similar to:

 

“You are unsubscribed from [your Campaign Name/Entity Name] Promo Alerts. No more messages will be sent.”

 

The Opt Out Confirmation will count as an SMS that is charged to your account.

 

Dataowl will use commercially reasonable efforts to maintain a list for your account of all phone numbers where your customers have opted out from any future messages (“Account Opt Out List”).

 

Dataowl will use commercially reasonable efforts to check all message lists against the Account Opt Out List in an effort to assure no messages are sent to any of the numbers on the Account Opt Out List.

 

You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages that you create and initiate through the Dataowl Services.

 

Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages transmitted through the Dataowl Services by visiting the following websites:

  1. Federal Trade Commission, http://www.ftc.gov

  2. Federal Communications Commission, http://www.fcc.gov

  3. DoNotCall Registry Info, http://www.donotcall.gov

The Telephone Consumer Protection Act (“TCPA”), the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and SMS or MMS messages.

 

Dataowl is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages prior to using the Dataowl Sites or Services. You are ultimately responsible to make your own informed decisions regarding your messages.

 

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 content, intellectual property or 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 are encouraged to consult with your attorney prior to your use of the Dataowl Sites or Services.

 

You accept that the Services are provided for professional use only, and you agree that your use of the Dataowl Sites or Services shall not include:

  1. Sending unsolicited marketing messages (i.e. spam);

  2. 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;

  3. Using any equipment or software that has the capacity to initiate messages without human intervention, in conjunction with your use of the Services;

  4. Sending any calls to life-line services, such as hospitals, fire, police, 911 or utility- related telephone numbers;

  5. Using strings of numbers as it is unlawful to engage two or more lines of a multi-line business;

  6. Harvesting, or otherwise collecting information about others, without their consent;

  7. 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 that do not belong to you;

  8. Transmitting, associating or publishing any unlawful, racist, discriminatory, harassing, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;

  9. Violating any applicable laws or regulations, including without limitation, laws regarding the transmission of technical data or software exported from the United States or other county;

  10. Transmitting any material that may infringe upon the intellectual property rights of third parties including without limitation trademarks, copyrights or other rights of publicity;

  11. Transmitting any material that contains viruses, trojan horses, worms, time bombs, cancel-bots or other harmful/deleterious programs;

  12. Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks;

  13. 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;

  14. Interfering with another's use and enjoyment of the Services or Dataowl Sites; or

  15. Engaging in any other activity that Dataowl believes could subject it to criminal liability or civil penalty/judgment.

 

You agree to provide legally required contact information in any outbound message when and where required by any applicable local, state, national or international law or regulation. You further agree that Dataowl is, under no circumstances, responsible for the contents and/or accuracy of your messages and Dataowl will only transmit them on a basis of good faith that you use the Services in accordance with these Terms. You are solely responsible for providing the content of all messages initiated by you through the Services. Dataowl will not be liable for any misuse of the Services by you. Dataowl is not responsible for the views and opinions contained in any of your messages or broadcasts.

 

Customer will not purposely route calls to high cost non-RBOC (Regional Bell Operating Company) areas for origination or termination of telecommunications traffic on the Dataowl system. Calls may be monitored and reported upon each billing cycle to ensure sound traffic patterns. Excessive routing of high-cost calls will be addressed to customer by Dataowl and fines may be assessed to recover excess charges from Dataowl VoIP termination companies.

 

4. Your Content and Information

 

The parties acknowledge and agree that any information or materials that you or individuals acting on your behalf provide to Dataowl, and the content of any messages you generate through the Dataowl Sites or system, shall remain the property of you (“Customer Information”).   By providing any such Customer Information to Dataowl, you grant to Dataowl a worldwide, royalty-free, license to use and host such Customer Information as required in order to provide the Services as contemplated herein.  Dataowl shall not use your Customer Information for any purpose other than in connection with providing the Services as contemplated herein. In connection with Customer Information you provide to Dataowl, you warrant and represent to Dataowl that you have all rights, title and interests necessary to provide such Customer Information to Dataowl, and that your provision of such Customer Information to Dataowl shall not infringe any third party’s proprietary or personal rights, including but not limited to any trademark, copyright, patent, or trade secret.

Notwithstanding the foregoing, DataOwl may use any and all non-personally-identifiable information that DataOwl captures, collects or has access to in connection with the Services and/or your use of the Website, whether provided by you, your customer or contained in a point-of-sale system or otherwise (collectively “Blind Data”), for any lawful business purpose, including, without limitation, analyzing and enhancing the Website and Services, adding new services, creating market trend analyses (including, without limitation, analyses on behaviors related to consumer purchases, inventory velocity, pricing, regional trends, etc.) by using data capture and analysis tools and other similar tools to extract, compile and analyze Blind Data, and disclosing such Blind Data to third parties for a variety of purposes.  Such Blind Data shall be solely owned by DataOwl.

 

5. Username / Password

 

As part of the registration process you will need a username and/or password. You shall provide Dataowl with accurate, complete, and regularly updated member profile information. You agree to notify Dataowl of any known or suspected unauthorized use(s) of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. You shall be responsible for maintaining the confidentiality of your password. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your user account, in Dataowl’s sole discretion, and you may be reported to appropriate law-enforcement agencies.

 

6. Newsletter and Communications Concerning the Dataowl Services

 

Any email addresses submitted for a new account for use of the Dataowl Services are automatically added to Dataowl’s customer database and, by submitting such email addresses, you have agreed to receive communications regarding the Dataowl Services requested by you and/or your account.

 

By providing your telephone number to Dataowl, you agree that Dataowl may contact you via calls or text messages to provide you information about your account and/or the Dataowl Services requested by you.

 

7. Intellectual Property

 

You are permitted to access the Dataowl Sites, the Services, and any content provided by Dataowl (which may include text, images, hosted software, sound files, video or other content, and may be provided via the Dataowl Sites or otherwise) solely for the purpose of receiving information about Dataowl’s business and products, purchasing and utilizing the Services, communicating with Dataowl, entering prize promotions offered by Dataowl, or otherwise as stated on the Dataowl Sites. Dataowl hereby grants a worldwide, fully paid-up, perpetual, non-exclusive, non-transferable license to you solely for the purpose of using the Dataowl Sites and Services.

 

We may have copyrights, trademarks, patents, trade secrets, or other intellectual property rights covering subject matter in the Services, including the web pages that are part of the Services and the Dataowl Sites. Except as expressly provided in these Terms, the availability of the Services and the Dataowl Sites does not give you any license to these patents, trademarks, copyrights, or other intellectual property. All copyrights, trademarks, patents, trade secrets and other intellectual proprietary rights contained in the Dataowl Sites are the sole property of Dataowl or its licensors, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not copy, reproduce, retransmit, modify, alter, create any derivative works, reverse engineer, decompile, or disassemble any portion of the Services or Dataowl Sites, including any proprietary communications protocol used by the Services or the Dataowl Sites without the express written permission of Dataowl. All other trademarks or trade names are the property of their respective owners, and such material may not be copied, downloaded, redistributed, modified or otherwise exploited, in whole or in part, without the permission of the owner.

 

Dataowl abides by the federal Digital Millennium Copyright Act (DMCA) by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. As part of our response, we may remove or disable access to material residing on a site that is controlled or operated by Dataowl that is claimed to be infringing, in which case we will make a good-faith attempt to contact the person who submitted the affected material so that they may make a counter notification, also in accordance with the DMCA. Dataowl does not control content hosted on third party websites, and cannot remove content from sites it does not own or control. If you are the copyright owner of content hosted on a third party site, and you have not authorized the use of your content, please contact the administrator of that website directly to have the content removed.

 

Before serving either a Notice of Infringing Material or Counter-Notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with Dataowl’s rights and obligations under the DMCA and, in particular, section 512(c), and do not constitute legal advice.

 

Notice of Infringing Material

To file a notice of infringing material on a site owned or controlled by Dataowl, please provide a notification containing the following details:

  1. Reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example: title, author, any registration or tracking number, URL);

  2. Reasonably sufficient detail to enable us to identify and locate the material that is claimed to be infringing (for example a link to the page that contains the material);

  3. Your contact information so that we can contact you (for example, your address, telephone number, email address);

  4. A statement that you have a good faith belief that the use of the material identified in (2) is not authorized by the copyright owner, its agent, or the law;

  5. A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed.

  6. Your physical or electronic signature.

 

Then send this notice via email to support@DataOwl.io

 

8. Data Protection & Privacy

 

In order to ensure your compliance with these Terms and to ensure that Dataowl complies with national and international laws, we may, from time to time, randomly check the messages that you send. Nonetheless, we are committed to maintaining the privacy of your information, pursuant to our Privacy Policy, located at https://www.DataOwl.io/legal-privacy-policy. Except as otherwise required for your use of the Services as contemplated herein, Dataowl does not want you to, and you should not, send any confidential or proprietary information to Dataowl via the Dataowl Sites or the email addresses referenced on the Dataowl Sites.

You further recognize that Dataowl does not want you to, and you warrant that you shall not, provide any information or materials to Dataowl that is racist, discriminatory, defamatory, threatening, obscene, harassing, or otherwise unlawful, or that infringes the proprietary material of another.

 

9. Payments

 

Your use of the Services is contingent on your paying for such use in the amounts and using the methods indicated on the Dataowl Sites. Your payment for the Services, keywords, DIDs, usage-sensitive fees and/or plans (a portion of which also includes software maintenance and upgrades, as well as customer support) shall be deemed completed when Dataowl receives the full amount of payment owed for such Services, keywords, DIDs and/or plans. You are responsible to pay for any message or broadcast you attempt to send to any number, regardless of whether the message is actually received by the intended recipient. As Dataowl is dependent on other entities for the delivery of your messages and broadcasts, our price per credit may require adjustment in order to account for costs that are not in our control. Accordingly, we may adjust our prices from time to time without prior notice.

Dataowl will charge your indicated method of payment for the Services, keywords, DIDs and/or plans immediately upon your confirming the payment method and amount. Amounts to be charged may include sales and other taxes where applicable and any other amounts indicated on the Site. Dataowl will assess an additional charge based on the costs Dataowl incurs for porting each DID number assigned to you that you request to be ported within six months of the original assignment by Dataowl and Dataowl may further restrict the ability to port telephone numbers assigned to you by Dataowl consistent with FCC regulations. Your account will be credited within 24 hours of Dataowl verifying receipt of your payment. If you have elected to make a payment by credit card and we do not receive payment from the credit card issuer, you agree to pay all amounts due immediately upon demand by Dataowl.

 

Dataowl cannot readily or accurately ascertain your location when you request to use the Services. You therefore agree that your use of the Services occurs in Arizona and is subject to any applicable Arizona taxes. To the extent that you are responsible for any additional taxes or fees beyond those collected by Dataowl, you agree that you will pay them when due to any applicable taxing authority, including any interest or penalties assessed.

 

Dataowl shall not be responsible for any errors or transmission failures with regard to the charging and collection of funds from your indicated payment method, nor for any actions taken by the provider of the payment method you choose (which could include refusal to authorize the charge). In addition to these Terms, any payments made by you may be subject to the agreement between you and the provider of the payment method.

 

As between you and Dataowl, you are responsible for all charges related to purchases made using your account and payment method, whether or not you authorized such purchases. Standard charges apply to any test call sent originating from your account or initiated using your API key. In the event of a non-payment by customer under these Terms, Dataowl shall be entitled to immediately proceed with collection remedies and shall be entitled to recover any and all costs, fees, and expenses of such collection efforts, including but not limited to: collection agencies, court costs, filing and service of process fees, attorneys’ fees incurred from counsel of Dataowl’s choosing, or any other costs, fees, and expenses incurred in the pursuit of collection on all customer accounts and receivables due and payable under these Terms.

 

All messages purchased, or pre-purchased, pursuant to any bundle, or other pricing plan, do not roll over and expire at the end of each thirty (30) day billing period (“Standard Billing Period”).  If during any Standard Billing Period, you incur incremental charges that are greater than or equal to fifty percent (50%) of your monthly plan price (the “Billing Threshold”), Dataowl will automatically charge that amount to your credit card on file. Notwithstanding the forgoing, Dataowl reserves the right to develop custom plans that modify the Standard Billing Period among other custom terms.

 

10. No Warranty; Limitation of Liability

 

Dataowl reserves the right to modify, suspend, or discontinue the offering of any of the Dataowl Sites or Services at any time for any reason without prior notice. Further, while Dataowl utilizes electronic and physical security to reduce the risk of improper access to or manipulation of data during transmission and storage, it cannot guarantee the security or integrity of the data and shall have no liability for breaches of security or integrity or third-party interception in transit, nor for any damage which may result to your computer or other property by your use of the Dataowl Sites or Services.

 

You acknowledge that your messages are transmitted unencrypted and that eavesdropping of communications by third parties is possible. Dataowl recommends that you ensure sensitive and valuable information is communicated by a protected and/or encrypted method.

 

Dataowl shall use commercially reasonable efforts to make access to the Services available through the required access protocols, but makes no warranty or guarantee that (i) the Services will be uninterrupted; (ii) the Services will be available at any particular time; or (iii) you will be able to access the Services at any particular time or from any particular location.

 

Dataowl will not be liable for any act or omission of any other company or companies furnishing a portion of the Services (including, without limitation communications carriers or ISPs), or from any act or omission of a third party, including those vendors participating in Dataowl offerings made to you, or for equipment that it does not furnish, or for damages that result from the operation of customer-provided systems, equipment, facilities or services that are interconnected with the Service.

 

NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE DATAOWL SITES AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESSED OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THESE TERMS, DATAOWL DOES NOT WARRANT THAT THE USE OF THE DATAOWL SITES OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, INCLUDING, BUT NOT LIMITED TO ANY INTERRUPTIONS TO THE SERVICES CAUSED BY THE INTENTIONAL AND/OR MALICIOUS ACTS OF THIRD PARTIES (E.G., “HACKING”) NOR SHALL DATAOWL BE RESPONSIBLE FOR ANY DATA LOSS OR LOSS OF ANY INFORMATION IN YOUR ACCOUNT, REGARDLESS OF THE CAUSE. FURTHERMORE, DATAOWL MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THAT THE DATAOWL SITES OR SERVICES WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS. DATAOWL MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICE, SOFTWARE, TEXT, GRAPHICS OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. DATAOWL SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OR DAMAGE TO OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THESE TERMS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER CAUSES OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE DATAOWL SITES OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE, OR DATA, DATAOWL IS NOT RESPONSIBLE FOR THOSE COSTS. DATAOWL'S TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE DATAOWL SITES OR SERVICES FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE MONTHLY TRANSACTION FEE PAID BY YOU TO DATAOWL HEREUNDER.

 

11. User Warranties; Indemnification

 

You warrant and represent to Dataowl that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in these Terms or in the performance of such obligations will place you in breach of any other contract or obligation. You further warrant and represent that the content of your messages will not infringe or otherwise violate the rights of third parties, and that you are and shall at all times remain in full compliance with all applicable laws, rules and regulations with regard to your use of the Dataowl Sites and Services, including without limitation the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, and all other laws and regulations concerning privacy, telemarketing, and Internet marketing.

 

You agree to indemnify and hold harmless Dataowl and its affiliates and each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements and attorneys’ fees, including attorneys’ fees incurred from counsel selected by Dataowl in its sole discretion) arising from or relating to any actual or threatened claim, suit, action, proceeding, governmental investigation or enforcement action based upon or arising out of: (i) your breach of the above warranties; or (ii) any use by you, or an account or computer owned by you, of the Dataowl Sites or Services. You agree to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, but we reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you. You acknowledge and agree to be held liable for any and all damages caused to Dataowl by you as a direct result of a violation of local, state, national or international laws and regulations, including but not limited to those damages that may arise from your fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by Dataowl to you.

 

12. Termination, Cancellation and/or Suspension by Dataowl

 

If at any time you breach these Terms, we may elect to suspend, terminate, and/or cancel your use of the Services and/or recover any damages from you arising from the event(s) giving rise to the suspension, termination, or cancellation. We reserve the right to suspend the Services, at any stage for any reason we may deem necessary to continue to provide our Services, in the event we determine that the Services may be hindered by your status as being our client, your financial status or the content of the messages or broadcasts originating from you.

Upon any such termination, cancellation, and/or suspension, you are still responsible for any obligations then accrued. Your obligation to pay all amounts accrued and owed by you shall continue even after any suspension or cancellation of your access to the Services (in whole or in part). Upon termination, for any reason, you agree to immediately cease using the Services and Dataowl shall have no obligation to you after any termination or cancellation of these Terms.

 

Should such a termination take place when you still have credits in your account, you shall receive back, at our discretion, a fair monetary value of such credits, save any expenses that may be incurred by Dataowl, including, without limitation, for payment of transfer duties, legal costs, third-party costs, or penalties.

The provisions regarding ownership, payments, warranties, representations and indemnifications will survive any suspension, termination, or cancellation of your use of the Services or Dataowl Sites.

 

13. Termination by the User

 

You are free to terminate or cancel your use of the Services at any time, and for any reason. Notwithstanding the foregoing, unless due to a breach solely by Dataowl that it fails to cure within thirty (30) days of its receipt of your notice, in no event shall Dataowl be obligated to refund to you the reasonable value of any unused Services previously purchased by you.

 

14. Links to other Websites

 

The Dataowl Sites may contain links to third party websites. These links are provided solely as a convenience to you and not as an endorsement by Dataowl of the contents of such third-party websites. Dataowl is not responsible for the content of linked third-party websites and does not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk.

 

Dataowl cannot ensure that you will be satisfied with any products or services that you purchase from a third party website that links to or from the Dataowl Sites, since these websites are owned and operated by independent third parties. Dataowl does not endorse any of the products/services, nor has Dataowl taken any steps to confirm the accuracy or reliability of any of the information contained in such third party websites. Dataowl does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against us with respect to such websites. Dataowl strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or off-line transaction with any of these third parties.

 

Dataowl consents to links to the Dataowl Sites which conform to the following: the appearance, position, and other aspects of any link to the Dataowl Sites may neither create the false appearance that an entity or its activities or products are associated with or sponsored by Dataowl nor be such as to damage or dilute the goodwill associated with the name and trademarks of Dataowl or its affiliates. Dataowl reserves the right to revoke this consent to link at any time in its sole discretion, without notice.

 

15. Security Rules

 

You are prohibited from violating or attempting to violate the security of the Dataowl Sites and Services and from using the Dataowl Sites and Services to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorization; (c) attempting to interfere with service to any user of the Dataowl Sites or Services, host or network, including, without limitation, via means of submitting a virus to the Dataowl Sites, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing”; (d) sending unsolicited e-mail, including promotions and/or advertising of products or services; or (e) forging any Dataowl packet header or any part of the header information in any e-mail, instant message, text message or newsgroup posting. Violations of system or network security may result in civil or criminal liability. Dataowl may investigate violations of these Terms, and may involve and cooperate with law enforcement authorities in prosecuting users of the Dataowl Sites who are involved in such violations.

 

16. Force Majeure

 

Dataowl shall not be liable for any failure or delay in performing its obligations hereunder, which such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications or Internet facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of Dataowl. In addition, Dataowl shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material necessary for the performance of the Services.

 

17. Choice of Law and Jurisdiction

 

These Terms shall be governed by and construed in accordance with the laws of the State of Arizona notwithstanding its laws governing conflicts of laws. Except as hereinafter provided, any dispute arising under these Terms shall be settled and determined by binding arbitration in Phoenix, Arizona in accordance with the provisions of the Federal Arbitration Act, 9. U.S.C. §§1-16, as amended (the “Federal Arbitration Act”), to the exclusion of state laws inconsistent therewith. The terms of the Commercial Arbitration Rules of the American Arbitration Association (the “Rules”) then in effect shall apply except to the extent they conflict with the express provisions of this paragraph. A single independent arbitrator shall conduct the arbitration. The parties shall endeavor to select the independent arbitrator by mutual agreement. If such agreement cannot be reached within thirty (30) days after a dispute has arisen which is to be decided by arbitration, the selection of the arbitrator shall be made in accordance with the Rules as then in effect. The arbitrator shall be a member of a state bar engaged in the practice of law in the United States or a retired member of a state or the federal judiciary in the United States. The award of the arbitrator shall be based on the evidence admitted and the substantive law of the State of Arizona (subject to any applicable preemption or supersedence by U.S. federal substantive law) and shall contain an award for each issue and counterclaim. The award shall be made within thirty (30) days following the close of the final hearing and the filing of any post-hearing briefs authorized by the arbitrator, and such award shall set forth in writing the factual findings and legal reasoning for such award. The arbitrator may, in his/her discretion, award to any party specific performance or injunctive relief (the foregoing is not intended to limit Dataowl’s access to the courts to the extent provided below). The arbitrator may not change, modify, or alter any express condition, term, or provision of these Terms or the extent the scope of their authority is expressly limited. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding upon the parties and no appeal of any kind may be taken. Judgment may be entered thereon in any court having jurisdiction thereof. Each party shall be entitled to inspect and obtain a copy of non-privileged relevant documents in the possession or control of the other party. All such discovery shall be in accordance with procedures approved by the arbitrator. Unless otherwise provided in the award, each party shall bear its own costs of discovery. The statute of limitations applicable under Arizona law to the commencement of a lawsuit shall apply to the commencement of arbitration hereunder.

 

Anything in the foregoing paragraph to the contrary notwithstanding, Dataowl may seek injunctive relief in any court having jurisdiction over the parties to enjoin or prevent any action you take or threaten to take in violation of these Terms.

These Terms are only those stated herein, which shall constitute the complete agreement between the parties. No terms and conditions stated in or attached to your communications to Dataowl are applicable to these Terms in any way and are not to be considered your exceptions to the provisions of these Terms.

 

18. Miscellaneous

 

The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Dataowl in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, Dataowl will be entitled to recover costs and attorneys' fees if it substantially prevails.

 

All notices required hereunder shall be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Dataowl may give notice to you by means of a general notice on the Dataowl Sites or Services, electronic mail to your e-mail address on record in Dataowl’s account information, or by written communication sent by personal delivery, fax, overnight courier, or certified or registered mail to your address on record in Dataowl's account information.