Terms and Conditions
Wrecking Ball Marketing, LLC END USER LICENSE AGREEMENT
IMPORTANT - BELOW ARE THE SUBSCRIBER TERMS AND CONDITIONS FOR USING WRECKING BALL SMS APPLICATIONS (“APPLICATION”) PROVIDED BY WRECKING BALL MARKETING, LLC AS (TOGETHER WITH ITS AFFILIATES DEFINED AS THE “PROVIDER”). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING, ELECTRONICALLY DOWNLOADING OR USING THE APPLICATION. BY INSTALLING, ELECTRONICALLY DOWNLOADING OR USING THE APPLICATION, YOU, THE USER OF THE APPLICATION, (“YOU”), IS AGREEING TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU DO NOT HAVE THE RIGHT TO USE THE APPLICATION AND MUST NOT INSTALL, DOWNLOAD OR USE THE APPLICATION. DURING YOUR USE OF THE APPLICATION, YOU MAY ALSO BE REQUIRED TO READ AND ACCEPT SEPARATE END-USER LICENSE AGREEMENT WITH THIRD-PARTY DATA OR SERVICE PROVIDERS TO THE APPLICATION (COLLECTIVELY “CARRIER(S)”). THE PROVIDER DISCLAIMS ANY AND ALL LIABILITY FOR DATA, CONTENT OR SERVICES FURNISHED BY CARRIERS OR OTHERS.
Wrecking Ball Marketing, LLC as is not liable for any type of the costs incurring as a result of the usage of the application. Wrecking Ball Marketing, LLC AS shall not be liable for any direct, indirect, incidental, special or consequential damages or costs to the user arising out of the use of or inability to use the software.
1. GRANT OF LICENSE FOR COMMERCIAL USE.
Subject to the terms and conditions of this Agreement, the Provider and/or its affiliated companies grants to You a personal, non-exclusive, non-transferable, revocable and limited license (“User License”) to install one - (1) - object code version of the Application on unlimited domains (“Domain”) owned and controlled by the “USER” and to use the Application on such Domain in accordance with the Documentation (as defined below). The User License includes the right to use the Application in order to receive and process information, materials and documentation related to the Application that are provided or made available to You by Provider or Your Domain Registrar at the time You install the Application (“Documentation”). All rights not expressly granted in this Agreement are reserved by the Provider.
You agree not to share, reproduce, translate, assign, sublicense the Application or any portion thereof or otherwise use or allow others to use the Application for the benefit of any third party. You agree not to (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas or algorithms of the Application or any other trade secrets or proprietary information of Provider by any means whatsoever; and package for resale (b) create any derivative works of or otherwise modify the Application or incorporate any portion of the Application into or with any other software; and package for resale (c) remove any product identification, copyright or other proprietary notice from the Application ; (d) copy or otherwise reproduce the Documentation; (e) use the Application in any fashion that may infringe any patent, copyright, trademark, trade secret, or any other intellectual property or proprietary right of the Provider, the Carrier, the aforesaid third-party data providers, or any other third-party; or (f) install, download or use the Application or any portion thereof on or with any device or product other than Your Domain. For the avoidance of doubt, restrictions set out in this Agreement shall not be construed to reduce any rights You are granted by mandatory law.
Subject to the User License granted You herein, You acknowledge and agree that Provider owns all right, title, and interest in or, if applicable, licenses to the to the Application and the Documentation worldwide, including, without limitation, any copies thereof, except to the extent any data, content, deliverable or other elements is owned by the respective Carrier. The
design, layout, graphics, structure, organization and code of the Application are valuable trade secrets of Provider and are protected by copyright and other laws, international treaty provisions and applicable laws (including, without limitation, intellectual property laws) of the country(ies) in which the Application is used. The Application is licensed, and not sold, to You.
4. TERM AND TERMINATION.
This Agreement is effective for the term of the Application subscription purchased by You from Carrier or Provider and may be terminated by You at the end of a billing cycle by notifying Provider. This Agreement may terminate automatically without notice from Provider or Carrier if You fail to comply with any term(s) of this Agreement, the Carrier’s terms and conditions, if the Provider no longer provides the Application to Carrier. Provider reserves the right to terminate the User License at the end of a billing cycle without cause, provided that You have received notice hereof fourteen – (14) calendar days prior to the end of the applicable billing cycle. Upon any termination of this Agreement: (a) You will not have access to or be able to recover any Archived Data; (b) Provider shall have the right to immediately remove all Archived Data from Provider Storage Systems (as defined below) and destroy any such Archived Data; (c) Provider or Carrier shall not be obligated to refund any monies paid; (d) the license granted to You in this Agreement will immediately terminate, and You agree to immediately cease all use of the Application and the Documentation; and (e) except for the User License granted to You in this Agreement, the terms of this Agreement shall survive such termination.
5. SERVICE FEES.
You agree to pay Carrier or Provider the applicable fees for Your Application in accordance with Carrier’s or Provider’s payment terms and conditions. For subscription based services: You acknowledge that Carrier or Provider will continue to charge You for the Application as long as Your Application subscription remains active and regardless of whether or how often You actively use the Application.
6. ACCOUNT AND SECURITY.
If the Application or the Carrier requires the creation of a login and/or password, You are exclusively responsible for all activities that occur under Your account, whether or not it occurs with Your knowledge. You are also exclusively responsible for maintaining the confidentiality of Your account login and password, and are exclusively responsible for any failure to do so and any results thereof. You have the capability to change Your password at any time.
7. INFORMATION COLLECTED.
You accept and acknowledge that Provider may, from time to time, send out information to the users of the Application (through SMS, email or similar) regarding products updates, upgrades and other application specific information as well as notices to You under this Agreement.
8. ACCOUNT RESTRICTIONS.
If the Application contains functionality for backup of your data, You agree that You will use the Application solely for the purpose of making an archival backup copy of Your personal contact information, any content created solely by You, or any other content You have the legal right to copy and store (“Data”) contained on Your Device (“Archived Data”), and You grant Provider the right to store the Archived Data on storage systems operated by or for Provider (“Provider Storage Systems”). You agree that You will only store Archived Data on Provider Storage Systems and that You will NOT store any other content or data, including content or data that You do not have legal right to use and/or copy. You agree to use the Archived Data solely for Your own personal use, including the purpose of restoring all or a portion of the Data on Your Device. You agree not to store any Data or any other data or content through the use of the Application that violates any law or that infringes any copyrights or other intellectual property rights of any third party. You acknowledge and agree that Provider and/or Carrier, each in their sole discretion, may disable access to, remove and/or destroy any or all Archived Data from Provider Storage Systems that it believes or others allege (a) constitutes an infringement, misappropriation or violation of any third party right (including, without limitation, any right of privacy, copyright, trademark, trade secret or other intellectual property right), (b) could otherwise damage, harm or tarnish Provider and/or Carrier or their reputation or (c) could make Provider and/or Carrier liable in any manner to any third party (including, without limitation, any governmental entity). You acknowledge and agree that Provider and/or Carrier may access, preserve and disclose Your account information and Archived Data if required to do so by law or if Provider and/or Carrier in good faith believes that such access, preservation or disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the terms and conditions of this Agreement; (iii) respond to claims that any Archived Data violates the rights of any third party; (iv) respond to Your requests for customer service; or (v) protect the rights, property or personal safety of Carrier, Provider, its customers, distributors, licensees or end users, or the public.
If the Application contains functionality for backup up of Data, You acknowledge that Provider may establish general practices and limits concerning the use of the Application, including, without limitation, the type of Data that may be archived, the maximum size of available server space for Your Archived Data, the maximum number of days that Archived Data may be stored, and the maximum number of times and the maximum duration for which You may access the Application and/or Data in a given period of time. Provider reserves the right to modify these and other general practices in its sole discretion and without any notice to You. You agree that Carrier and Provider have no responsibility or liability for any removal, loss or destruction of, or failure to store or provide access to, any Data or Archived Data or any other content transmitted through the use of the Application.
If the Application contains functionality for number search, you acknowledge that the information must not be communicated via the Internet or other media. The information must only be used for the purposes of number information and not therefore for any form of marketing or similar other communication. Breach of this may result in severe penalties and claims for damages from the Provider and Carrier.
You shall indemnify, defend and hold harmless Carrier, Provider and its officers, directors, employees, affiliates and agents from and against any claim, loss, liability, cost or expense, including, but not limited to, reasonable attorneys’ fees and costs (collectively, “Claim”) to the extent such Claim arises or results from or is based upon: (a) Your breach of any of the terms and conditions of this Agreement; (b) Your breach of any applicable policy or agreement between You and Carrier; (c) Your subscription to the Application; (d) any allegation that any Data, Archived Data, any other content You attempt to archive through the use of the Application, or Your use (or Provider’s provision) of the Application infringes, is a misappropriation of or violates any third party right, including, without limitation, any intellectual property right or right of privacy (except to the extent such allegation is that the Application itself, as provided by Provider, infringes or is a misappropriation of any third party intellectual property right); or (e) Your failure to comply with any applicable laws with respect to any Data, Archived Data, any other content You attempt to archive through the use of the Application , or Your use of the Application or the Documentation.
10. DISCLAIMER OF WARRANTY.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE APPLICATION , THE DOCUMENTATION AND ALL SERVICES PROVIDED BY CARRIER, PROVIDER AND THEIR AFFILIATES OR ANY OF THEIR SUPPLIERS OR LICENSORS ARE PROVIDED ON AN "AS IS" BASIS AND CARRIER, PROVIDER AND THEIR AFFILIATES OR ANY OF THEIR SUPPLIERS OR LICENSORS,HEREBY DISCLAIM ALL WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY TYPE, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE, AND NO GUARANTEES ARE GIVEN IN CONNECTION WITH THE SERVICES IN RELATION TO ITS CONTENT, FUNCTIONALITY, ACCURACY OR A V AILABILITY .
11. LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED UNDER MANDATORY LAW; IN NO EVENT SHALL CARRIER, PROVIDER AND THEIR AFFILIATES OR ANY OF THEIR SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ANY DATA, ARCHIVED DATA, THE USE OR INABILITY TO USE THE APPLICATION OR THE DOCUMENTATION, OR ANY SERVICES PROVIDED BY PROVIDER) UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR FOR ANY INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OR CORRUPTION OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS), EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. YOU AGREE THAT IN NO EVENT SHALL PROVIDER’S CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY, WHETHER UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNTS PAID BY YOU FOR THE USE OF THE APPLICATION, EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
12. FORCE MAJEURE.
Provider shall not be liable for nonperformance, delay, errors, data loss or corruption or other loss caused by any event beyond Provider’s reasonable control.
13. ENTIRE AGREEMENT; AMENDMENT.
This Agreement constitutes the entire agreement between You and Provider with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings and agreements regarding the subject matter of this Agreement. With respect to Carrier, this Agreement shall be in addition to and not modify or amend Your agreement with Carrier’s terms and conditions of service.
14. GOVERNING LAW
This Agreement shall exclusively be governed by the laws of the State of Minnesota without regard to conflicts of law’s provisions thereof.
15. LINKS TO THIRD PARTY SITES
You can access links to other websites via the Application’s websites. These sites are not under the control of Provider and Provider is not responsible for the content or links found on these sites, or for any changes or updates to these sites. Provider is offering these links to its best ability as assistance to our customers and assumes no responsibility for the material published on these sites.
Copyright © Wrecking Ball Marketing, LLC AS with sole rights.
The Application trademark is a registered trademark. Other companies and product names that appear in this Agreement may be separate trademarks. Companies, organizations, products, domain names, e-mail addresses, logos, people and events given as examples are fictitious. Any similarities to actual companies, organizations, products, domain names, e-mail addresses, logos, people and events are purely coincidental.