DMoose - Terms of Service
Welcome to the DMoose Fitness website (the "Site"). DMoose Enterprises Inc, d/b/a DMoose Fitness (“DMoose”) provides services to you subject to the notices, terms, and conditions set forth in this agreement (the "Agreement"). In addition, when you use any of our services (e.g., Customer Reviews), you will be subject to the rules, guidelines, policies, terms, and conditions applicable to such service, and they are incorporated into this Agreement by this reference. We reserve the right to change this Site and these terms and conditions at any time. ACCESSING, BROWSING OR OTHERWISE USING THE SITE INDICATES YOUR AGREEMENT TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, SO PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PROCEEDING.
USE OF SITE
You represent and warrant that you are at least 18 years old or visiting the Site under the supervision of a parent or guardian. Subject to the terms and conditions of this Agreement, we hereby grant you a limited, revocable, non-transferable and non-exclusive license to access and use the Site by displaying it on your internet browser only for the purpose of shopping for items sold on the Site and not for any commercial use or use on behalf of any third party, except as explicitly permitted by us in advance. Any breach of this Agreement shall result in the immediate revocation of the license granted in this paragraph without notice to you.
Except as permitted in the paragraph above, you may not reproduce, distribute, display, sell, lease, transmit, create derivative works from, translate, modify, reverse-engineer, disassemble, decompile or otherwise exploit this Site or any portion of it unless expressly permitted by us in writing. You may not make any commercial use of any of the information provided on the Site or make any use of the Site for the benefit of another business unless explicitly permitted by us in advance. We reserve the right to refuse service, terminate accounts, and/or cancel orders at its discretion, including, without limitation, if we believe that customer conduct violates applicable law or is harmful to our interests.
You shall not upload to, distribute, or otherwise publish through this Site any Content, information, or other material that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses or other harmful code or properties.
Content provided on this site is solely for informational purposes. It is your sole responsibility to consult a licensed physician or qualified health care professional for advice, diagnosis, and/or treatment of any health related condition or to ensure that you are well enough for physical activities. Submissions or opinions expressed on this Site are that of the individual expressing such Submission or opinion and may not reflect our opinions. Product representations expressed on this Site of products that are not manufactured by DMoose are that of the vendor and are not made by us.
We may assign you a password and account identification to enable you to access and use certain portions of this Site. Each time you use a password or identification, you will be deemed to be authorized to access and use the Site in a manner consistent with the terms and conditions of this Agreement, and we have no obligation to investigate the authorization or source of any such access or use of the Site. YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING THE PASSWORD AND IDENTIFICATION ORIGINALLY ASSIGNED TO YOU WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING WITHOUT LIMITATION FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE. You are solely responsible for protecting the security and confidentiality of the password and identification assigned to you. You shall immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of this Site's security.
REVIEWS & COMMENTS
Except as otherwise provided elsewhere in this Agreement or on the Site, anything that you submit or post to the Site and/or provide us, including without limitation, ideas, know-how, techniques, questions, reviews, comments, and suggestions (collectively, "Submissions") is and will be treated as nonconfidential and nonproprietary, and we shall have the royalty-free, worldwide, perpetual, irrevocable and transferable right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, create derivative works from such Submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such Submissions. All Submissions shall automatically become our sole and exclusive property and shall not be returned to you.
In addition to the rights applicable to any Submission, when you post comments or reviews to the Site, you also grant us the right to use the name that you submit with any review, comment, or other Content, if any, in connection with such review, comment, or other content. You represent and warrant that you own or otherwise control all of the rights to the reviews, comments and other Content that you post on this Site and that use of your reviews, comments, or other Content by us will not infringe upon or violate the rights of any third party. You shall not use a false e mail address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of any Submissions or Content. We may, but shall not be obligated to, remove or edit any Submissions (including comments or reviews) for any reason.
All text, graphics, button icons, images, audio clips, and software (collectively, "Content"), belongs exclusively to DMoose, or its affiliates, or is being used by DMoose under license. The collection, arrangement, and assembly of all Content on this Site (the "Compilation") belongs exclusively to DMoose or its affiliates. All software used on this Site (the "Software") is the property of DMoose, its affiliates or its Software suppliers. The Content, the Compilation and the Software are all protected by U.S. and international copyright laws. DMOOSE FITNESS (& design),DMOOSE (& design), the DMoose R (& design), and other logos, slogans, trade names or words are registered trademarks, trademarks or service marks of DMoose, its affiliates, suppliers, or third parties. The use of any of our trademarks or service marks without our express written consent is strictly prohibited. You may not use our trademarks or service marks in connection with any product or service in any way that is likely to cause confusion. You may not use our trademarks or service marks in any manner that disparages or discredits us. You may not use any of our trademarks or service marks in meta tags without prior explicit consent.
RISK OF LOSS; USE OF ACCOUNT
The risk of loss and title for items purchased by you pass to you upon our delivery of the items to the carrier. If you use a DMoose account, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. DMoose does sell products for children, but it sells them to adults, who can purchase with a credit card or other permitted payment method. If you are under 18, you may use the DMoose services only with involvement of a parent or guardian. DMoose reserves the right to refuse service, terminate accounts, remove or edit content, or cancel orders in its sole discretion.
TERMINATION & EFFECT OF TERMINATION
In addition to any other legal or equitable remedies, we may, without prior notice to you, immediately terminate the Agreement or revoke any or all of your rights granted under this Agreement. Upon any termination of this Agreement, you shall immediately cease all access to and use of the Site and we shall, in addition to any other legal or equitable remedies, immediately revoke all password(s) and account identification issued to you and deny your access to and use of this Site in whole or in part. Any termination of this Agreement shall not affect the respective rights and obligations (including without limitation, payment obligations) of the parties arising before the date of termination.
This Site may be accessed from countries other than the United States. This Site may contain products or references to products that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United States. If you access and use this Site outside the United States you are responsible for complying with your local laws and regulations.
DISCLAIMER AND LIMITATION OF LIABILITY
EXCEPT AS OTHERWISE SET FORTH ON THIS SITE, INCLUDING WITHOUT LIMITATION THE PRODUCT DESCRIPTIONS OF SPECIFIC PRODUCTS, THIS SITE, THE PRODUCTS OFFERED FOR SALE ON IT AND THE TRANSACTIONS CONDUCTED THROUGH IT ARE PROVIDED BY US ON AN "AS IS" BASIS. WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THIS SITE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT, DATA ACCURACY AND SYSTEM INTEGRATION. THIS SITE MAY INCLUDE INACCURACIES, MISTAKES OR TYPOGRAPHICAL ERRORS. WE DO NOT WARRANT THAT THE CONTENT WILL BE UNINTERRUPTED OR ERROR FREE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE, INCLUDING, BUT NOT LIMITED TO INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL LIABILITY TO YOU FOR ANY DAMAGES (REGARDLESS OF THE FOUNDATION FOR THE ACTION) SHALL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO US DURING THE MONTH IMMEDIATELY PRECEDING THE ACT ALLEGEDLY GIVING RISE TO OUR LIABILITY.
In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your credit card account in the amount of the charge.
This site may contain links to other sites on the Internet that are owned and operated by third parties. You acknowledge that we are not responsible for the operation of or content located on or through any such site.
We respect the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please follow our Notice and Procedure for Making Claims of Copyright Infringement located at the bottom of this page.
You agree that our remedy at law for any actual or threatened breach of this Agreement would be inadequate and that we shall be entitled to specific performance or injunctive relief, or both, in addition to any damages that we may be legally entitled to recover, together with reasonable expenses of any form of dispute resolution, including, without limitation, attorneys' fees.
No right or remedy of ours shall be exclusive of any other, whether at law or in equity, including without limitation damages injunctive relief, attorneys' fees and expenses.
No instance of waiver by us of our rights or remedies under these terms and conditions shall imply any obligation to grant any similar, future or other waiver.
This site is created and controlled by us in the Province of Ontario, Canada. As such, the laws of the Province of Ontario will govern these disclaimers, terms, and conditions, without giving effect to any principles of conflicts of laws.
If any these provisions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed several and shall not affect the validity and enforceability of any remaining provision.
Please send any questions or comments (including all inquiries unrelated to copyright infringement) regarding this Site to:
412 N. Main St. Buffalo, Wyoming, 82834
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the written information specified below. Please note that this procedure is exclusively for notifying us and our affiliates and its affiliates that your copyrighted material has been infringed.
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed upon;
- A description of where the material that you claim is infringing is located on the site;
- Your address, telephone number, and e-mail address;
- A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Our Copyright Agent for notice of claims of copyright infringement on its site is:
Attn: Intellectual Property
412 N. Main St. Buffalo, Wyoming, 82834
Applicable from: 9 November 2016.
The following terms of service and end user license agreement (“EULA”) constitute an agreement between you and Coulter Ventures LLC, dba DMoose Fitness, and its affiliates (“DMoose”). This EULA governs your use of Software and Services (as specified below). By installing or using the Software you agree to be bound by the terms of this EULA. If you do not accept the terms of this EULA, do not install, use or access the Software.
For purposes of this EULA "Software" means the DMoose mobile application software and all data or content that is accessed or utilized by the DMoose mobile application software. Software also includes updates and upgrades as well as accompanying manual(s), packaging and other written, files, electronic or on-line materials or documentation, and any and all copies of such software and its materials (collectively, the “Services”.)
THE SOFTWARE IS LICENSED, NOT SOLD. YOUR USE OF THE SOFTWARE IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS EULA. BY INSTALLING, USING OR ACCESSING THE DMOOSE SOFTWARE OR SERVICES OR ANY MATERIALS INCLUDED IN OR WITH THE DMOOSE SOFTWARE, YOU HEREBY ACCEPT THE TERMS OF THIS EULA.
SOFTWARE LICENSE. Subject to this EULA and its terms and conditions, DMoose hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use one copy of the Software for your personal non-commercial use on a single iPhone, iPod Touch or iPad you own, and to maintain a single copy as backup on your personal computer, solely in machine executable code and solely for your personal use. The rights granted herein are subject to your compliance with this EULA. The Software is being licensed to you and you hereby acknowledge that no title or ownership in the Software is being transferred or assigned and this EULA is not to be construed as a sale of any rights in the Software. Subject to this EULA and its terms and conditions, DMoose hereby grants you a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Services as provided by DMoose, for your personal non-commercial use, in the manner permitted by this EULA. The rights granted herein are subject to your compliance with this EULA.
LICENSE TERM. The term of your licenses under this EULA shall commence on the date that you accept this EULA and install or otherwise use the Software and/or Services and ends on the earlier date of either your disposal of the Software and/or Services or DMoose's termination of this EULA. Your license terminates immediately if you violate any of the terms of this EULA.
OWNERSHIP; NO OTHER LICENSES. DMoose licenses, and does not sell, the Software to you pursuant to the terms of this Agreement. DMoose retains all right, title and interest in and to the Software, including any changes, updates, corrections, or modifications to the Software. The Software is protected by applicable laws and treaties throughout the world, and may not be copied, reproduced, translated, or distributed in any manner or medium, in whole or in part, without prior written consent from DMoose. All rights not expressly granted to you herein are reserved by DMoose.
2. GENERAL LICENSE CONDITIONS
You agree not to: (i) commercially exploit the Software; (ii) distribute, lease, license, sell, rent, lend, convey or otherwise transfer or assign the Software, any copies thereof, or any passwords or usernames of DMoose Services, without the express prior written consent of DMoose or as set forth in this EULA; (iii) make a copy of the Software (other than as set forth herein); (iv) make the Software publicly available or available on a network for use or download by multiple users; (v) reverse engineer, decompile, disassemble, translate, prepare derivative works based on or otherwise modify the Software, in whole or in part; (vi) transport, export or re-export (directly or indirectly) into any country forbidden to receive such Software by any U.S. or other export laws or accompanying regulations or otherwise violate such laws or regulations, that may be amended from time to time; or (vii) scrape, build databases or otherwise create permanent copies of content returned from the DMoose Services.
The Software may require an internet connection to access the Software or its internet-based features, authenticate the Software, or perform other functions. In order for certain features of the Software to operate properly, you may be required to have and maintain an adequate internet connection. By using the Software, you acknowledge and agree that third party data transfer fees may apply depending on your data plan. Please consult your carrier for further information.
TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SOFTWARE IS PROVIDED TO YOU “AS IS,” WITH ALL FAULTS, WITHOUT WARRANTY OF ANY KIND, WITHOUT PERFORMANCE ASSURANCES OR GUARANTEES OF ANY KIND, AND YOUR USE IS AT YOUR SOLE RISK. THE ENTIRE RISK OF SATISFACTORY QUALITY AND PERFORMANCE RESIDES WITH YOU. DMOOSE AND DMOOSE’S LICENSORS DO NOT MAKE, AND HEREBY DISCLAIM, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING IMPLIED WARRANTIES OF CONDITION, UNINTERRUPTED USE, ACCURACY OF DATA (INCLUDING BUT NOT LIMITED TO LOCATION DATA), MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND WARRANTIES (IF ANY) ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. DMOOSE AND DMOOSE’S LICENSORS DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE; THAT THE DMOOSE SERVICES WILL MEET YOUR REQUIREMENTS; THAT OPERATION OF THE DMOOSE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE DMOOSE SERVICES WILL INTEROPERATE OR BE COMPATIBLE WITH ANY OTHER DMOOSE SERVICES OR THAT ANY ERRORS IN THE DMOOSE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN ADVICE PROVIDED BY DMOOSE OR DMOOSE’S LICENSORS OR ANY AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS APPLY ONLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
5. LIMITATIONS OF LIABILITY
IN NO EVENT WILL DMOOSE, DMOOSE’S AFFILIATES OR DMOOSE’S LICENSORS BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM POSSESSION, ACCESS, USE OR MALFUNCTION OF THE SOFTWARE, INCLUDING BUT NOT LIMITED TO, DAMAGES TO PROPERTY, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL INJURIES, PROPERTY DAMAGE, LOST PROFITS OR PUNITIVE DAMAGES FROM ANY CAUSES OF ACTION ARISING OUT OF OR RELATED TO THIS EULA OR THE SOFTWARE, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT DMOOSE OR DMOOSE’S LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR PURPOSES OF THIS SECTION 5, DMOOSE’S LICENSORS AND CHANNEL PARTNERS ARE THIRD PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THIS EULA AGAINST YOU.
BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, THIS LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THIS LIMITATION OF LIABILITY SHALL NOT BE APPLICABLE SOLELY TO THE EXTENT THAT ANY SPECIFIC PROVISION OF THIS LIMITATION OF LIABILITY IS PROHIBITED BY ANY FEDERAL, STATE, OR MUNICIPAL LAW, WHICH CANNOT BE PRE-EMPTED. THIS EULA GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
IN NO EVENT SHALL DMOOSE’S, DMOOSE’S AFFILIATES’, DMOOSE’S LICENSORS’ OR CHANNEL PARTNERS’ LIABILITY FOR ALL DAMAGES (EXCEPT AS REQUIRED BY APPLICABLE LAW) EXCEED FIFTY DOLLARS.
6. OTHER TERMS AND CONDITIONS
SUGGESTIONS: DMoose appreciates the interest shown shown by its customers and users who send DMoose unsolicited ideas and suggestions. If you have sent, or are considering, sending an idea to DMoose be aware that your idea or suggestion may have already been considered by DMoose and not been pursued, currently be under development, been targeted for patent protection, already be in commercial production, or be the subject of some other action already taken by DMoose.
EXPORT LAWS: You acknowledge and agree that the laws and regulations of the United States restrict the export or re-export of certain commodities and technical data originated in the United States. You hereby agree that you will not export or re-export the Software in any form in violation of the laws of the United States or any other jurisdiction. By installing or using the Software you represent and warrant to DMoose that you are not (i) a national or resident of any country or jurisdiction to which the United States has embargoed goods, or (ii) on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial and Prohibition Orders.
GOVERNMENT END USERS: This Software and related documents are “Commercial Items” as defined in 48 CFR Section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as defined in 48 CFR Sections 12.212 or 227.7202. The Software and related documentation are being licensed to U.S. Government end users solely as “Commercial Items” and with only the rights granted to all end-users pursuant to this EULA.
TERMINATION: This EULA will terminate automatically if you fail to comply with its terms and conditions. In such event, you must destroy all copies of the Software and all of its component parts and cease and desist from accessing any DMoose Services.
EQUITABLE REMEDIES: You hereby agree that if the terms of this EULA are not specifically observed, DMoose will be irreparably damaged, and therefore you agree that DMoose shall be entitled, without bond, other security or proof of damages, to appropriate equitable remedies with respect to your breach of any of the terms of this EULA, in addition to any other available remedies.
INDEMNITY: You agree to indemnify, defend and hold DMoose, its partners, affiliates, contractors, officers, directors, employees and agents harmless from and against any and all damages, losses and expenses arising directly or indirectly from: (i) your acts and omissions to act in using the DMoose Services pursuant to the terms of the EULA; or (ii) your breach of this EULA.
GOVERNING LAW AND DISPUTE RESOLUTION. This EULA will be governed by the laws of of the State of Ohio, as applied between Ohio residents within the jurisdiction of the State of Ohio, without reference to its choice of law rules. The United Nations Convention for the International Sale of Goods shall not apply, and it is expressly excluded from this EULA.
END USER TERMS REQUIRED BY APPLE: You hereby acknowledge and agree that: (i) this EULA is concluded between you and DMoose, and not Apple, Inc .(“Apple”); (ii) DMoose and its licensors (and not Apple) are solely responsible for the Software, and any related maintenance or support; (iii) Apple has no responsibility to provide maintenance or support related to the Software; (iv) in the event that the Software fails to conform to any applicable warranty you may apply to Apple for a refund of any purchase price paid for the Software; (v) to the maximum extent permitted by applicable law Apple has no other warranty obligations whatsoever with respect to the Software; (vi) Apple is not responsible for addressing any claims that you may have arising out of your use of the Software; (vii) Apple has no responsibility for investigating, defending, settling or discharging any third-party claim that the Software infringes such third-party’s intellectual property rights; and (viii) Apple and its subsidiaries are third-party beneficiaries of this EULA, and that by accepting this EULA you acknowledge and agree that Apple has the right, and will be deemed to have accepted the right, to enforce this EULA against you as a third-party beneficiary. You represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo or that has been designated as a “terrorist supporting country” by the U.S. government; and (ii) you are not listed on any U.S. government list of prohibited or restricted parties.
SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS
- User Opt In: The Program allows Users to receive SMS/MMS mobile messages by affirmatively opting into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, the foregoing shall not be interpreted to suggest or imply that any or all of Our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “autodialer”). Message and data rates may apply. Message frequency varies.
- User Opt Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Us in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that DMoose and its service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
- Program Description: Without limiting the scope of the Program, users that opt into the Program can expect to receive messages concerning the marketing, promotion, payment, delivery and sale of digital and physical products, services, and events. Messages may include checkout reminders.
- Cost and Frequency: Message and data rates may apply. You agree to receive messages periodically at Our discretion. Daily, weekly, and monthly message frequency will vary. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Us.
- Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at email@example.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.
- MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
- Our Disclaimer of Warranty: The Program is offered on an "as-is" basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Our control. Carriers are not liable for delayed or undelivered mobile messages.
- Participant Requirements: You must have a wireless device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your phone capabilities for specific text messaging instructions.
- Age Restriction: You may not use or engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.
- Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:
- Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
- Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
- Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
- Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
- Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
- Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.
- Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge Inc. d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Buffalo, Wyoming before one arbitrator.
The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which DMoose’s principal place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration.
THE PARTIES AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY VIA ARBITRATION AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. Further, unless both parties agree otherwise in a signed writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.
- Florida Law: We endeavor to comply with the Florida Telemarketing Act and the Florida Do Not Call Act as applicable to Florida residents. For purposes of compliance, you agree that we may assume that you are a Florida resident if, at the time of opt-in to Program, (1) your shipping address, as provided is located in Florida or (2) the area code for the phone number used to opt-into the Program is a Florida area code. You agree that the requirements of the Florida Telemarketing Act and the Florida Do Not Call Act do not apply to you, and you shall not assert that you are a Florida resident, if you do not meet either of these criteria or, in the alternative, do not affirmatively advise us in writing that you are a Florida resident by sending written notice to us. Insofar as you are a Florida resident, you agree that mobile messages sent by Us in direct response to mobile messages or requests from You (including but are not limited to response to Keywords, opt-in, help or stop requests and shipping notifications) shall not constitute a “telephonic sales call” or “commercial telephone solicitation phone call” for purposes of Florida Statutes Section 501 (including but not limited to sections 501.059 and 501.616), to the extent the law is otherwise relevant and applicable.
13. Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. 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 this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.