TERMS AND CONDITIONS FOR LOYALTY BIZ, INC. USERS
Thank you for choosing Loyalty BIZ, Inc. (the “Company,” “we”, “us”, or “our”). These are the terms and conditions (the “Terms”) that apply to your use of the Company’s website located at www.loyaltybiz.com (the “Site”) and to those services identified in documentation provided to you by email, on the Site, or by any other means in connection with any purchase, or any other services provided by the Company (collectively referred to as the “Services”).
Please read these Terms before registering for the Services. By completing your registration and clicking on the “I Accept” button below, you will become a registered user (a “User,” or, alternatively, “you”, “your”, “yours”) of the Services and Licensed IP and you agree to be bound by these Terms. If you do not agree to the Terms, please do not register for the Services.
The Terms are subject to change by the Company at any time; however, the most current version of the Terms is available by clicking on the link at the bottom of the Site. We encourage you to regularly review the Terms to ensure that you are aware of any changes. By continuing to use the Services after changes in the Terms have been posted on the Site, you agree to be bound by the most current version of the Terms.
By registering for, using or receiving the Services, you:
- represent that you are 18 years of age or older;
- represent that you have the legal capacity and authority to bind yourself and/or the person or entity for whom you are accepting these Terms;
- represent, warrant and covenant that the information and data that you have provided or will provide to the Company is or will be correct and complete in all respects, and that you have the right to provide such information and data to the Company;
- acknowledge that the Company has and will rely upon the information and data that you provide and that any incorrect or incomplete information that you provide to the Company may result in the Company withholding, suspending or terminating the Services and/or terminating this agreement; and
- agree to be bound by these Terms, as it may be updated by the Company from time to time in its sole discretion.
- At the end of your first billing cycle or any billing cycle thereafter, your Loyalty BIZ, Inc. account will automatically renew and will continue to be active and your credit card or checking account will be charged for the billing cycle until such time as you cancel your account. Such cancellation must be done in accordance with the requirements outlined in these Terms and Conditions as well as your written and signed agreement. Loyalty BIZ, Inc. will not refund payments based on failure to cancel subscription prior to the charge for the next billing cycle.
2. CHANGES/UPGRADES TO THE SERVICES
We have the right, in our sole discretion, to modify or change the Site and/or the Services. We will notify you of such changes via the Site, email, or any other method we deem appropriate. Your continued use after any such modification or change is made constitutes your acceptance of such modification or change.
3. USE OF SERVICES AND SITE
- Eligibility: You must be 18 years old, or the age of majority, as determined by the laws of your state of residency, to become a User and assume the obligations set forth in these Terms. In order for you to receive the Services, which will be provided remotely, the Company may qualify your Internet connection for the minimum line rate (speed) available for support based on standard line qualification procedures.
- Security of the Services: You are responsible to keep your password(s) secure, and you agree not to disclose your password(s) to any third party. You are solely responsible for any activity that occurs under your user names and accounts. You expressly agree that you will not resell the Services. You may not assign your obligations under these Terms to any other party.
- Restrictions on Use: You may only access and use the Site in the manner authorized by the Terms and any other documents we provide to you. We are not liable to you for any unauthorized access to or misuse of the Services or the Site. You may not use the Site in any manner that could damage, disable, overburden, or impair the Site or interfere with any other party’s use and enjoyment of the Site. You may not attempt to gain unauthorized access to the Site (or computer systems or networks connected to the Site) through hacking, password mining, or any other means. You agree that you will not engage in any activities with respect to the Site that violate any applicable local, state, national or international laws or regulations, the intellectual property or other rights of third parties, or submit or transmit any material that is abusive, defamatory, obscene, threatening, or otherwise inappropriate, as reasonably determined by the Company.
- You are required to use the Services in full compliance with all applicable laws and regulations, including without limitation, all state, federal and international: (a) Do-Not-Call (“DNC”) list prohibitions; (b) telemarketer licensing and bonding requirements; (c) consumer cancellation rights; (d) mandatory disclosures; (e) wireless calling restrictions; (f) restrictions on the use of automatic telephone dialing systems and pre-recorded messages (i.e. robocalling or voice broadcasting); (g) internal opt-out rules; (h) intellectual property rights and restrictions; and (i) other product and industry specific rules and disclosures. By making any use of the Services, You expressly warrant to us that You are and shall continue to act in full compliance with the law. All of our offers are void where prohibited by law. You agree that You have read and understand the FTC’s Telemarketing Sales Rule (“TSR”) and the FCC’s Telephone Consumer Protection Act (“TCPA”), and all other applicable laws and regulations. You must review these rules with your own legal counsel to ensure that you understand and are fully compliant. We do not assume responsibility for ensuring that your marketing campaigns meet applicable legal requirements. We will not assume any liability if You are ever held guilty or liable for any law violation. Not withstanding the foregoing, you acknowledge that we have and are taking active steps to ensure the compliance of our customers, including by having you agree to these terms and otherwise. If we discover evidence demonstrating that you may have violated the law, we may suspend or terminate your use of the Services immediately. You realize and agree that we may be required by law to provide certain information about you if we receive a subpoena from a court or regulator with competent jurisdiction. We are under no obligation to object to the same, except in our sole discretion.
- Service interruptions: The Services are web-based and may be interrupted or negatively affected by items outside of our control. The Company may also discontinue any of the Services from time to time in its sole discretion. We are not liable to you for interruptions to or problems with the Services caused by acts of any governmental body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption or delay in telecommunications or third party services, virus attacks or hackers, failure of third party software (including, without limitation, e-business software, payment gateways, chat, statistics or free scripts) or inability to obtain raw materials, supplies, or power used in or equipment needed for provision of the Services; failure of access circuits to our computer network, DNS (domain name server) issues outside our direct control; issues with FTP, POP3, SMTP, or any items relating to your access to the Site or the Services; your acts or omissions (or acts or omissions of others engaged or authorized by you), including, without limitation, custom scripting or coding (e.g., COI, Python, HTML, ASP, etc.), any negligence, willful misconduct, or use of Site or Services in breach of these Terms; e-mail or WebMail delivery and transmission; DNS propagation; or outages elsewhere on the internet that hinder access to the Site or the Services. Because the Services are dependent on you ensuring that your Third Party Equipment is active and fully functioning, the Company is not liable for any failure of your Third Party Equipment.
4. INTELLECTUAL PROPERTY LICENSE
- You acknowledge that you have no ownership, rights, title or other interest in the Site or the Services apart from that granted hereunder. All rights, title, and interest including, but not limited to, intellectual property interests, in and to the Site and the Services are the exclusive property of the Company, and these Terms shall not be deemed a transfer of title or ownership in any respect. All rights not expressly granted to you pursuant to this Section 4 are expressly reserved by us.
- Cancellation of the Services revokes your license and ends your rights thereunder. In case of such cancellation, you will immediately cease use of the Site and the Services. The terms that by their sense and context are intended to survive performance by either or both parties shall so survive the performance and termination of the license, including without limitation those terms relating to warranty limitations, limitation of liability, remedies or damages, or our proprietary rights.
- If any modifications, enhancements, improvements or alterations to the Site or Services are or have been made us, by you or by any non-party, either singly or in combination, all such modifications, enhancements, improvements or alterations shall belong exclusively to us. You agree to assign to us any ownership or other right, title and interest in or to any such improvements, enhancements, modifications or alterations and to execute any documents to facilitate said assignment that we request.
- You acknowledge that, in connection with the performance of this agreement, you may receive certain confidential information of Company, which confidential information shall include information relating to the Software and Services. You hereby agree: (a) to hold and maintain in strict confidence all confidential information of the Company and not to disclose it to any third party; and (b) not to use any confidential information of the Company except as permitted by these Terms or as may be necessary to exercise rights or perform obligations under these Terms. In the event that you disclose or are required to disclose confidential information, you shall use commercially reasonable efforts to provide the Company with prompt notice prior to any disclosure to afford a reasonable opportunity to protect the confidential information from public disclosure.
- You authorize us to retain certain data about you, including without limitation, call and messaging logs, in order for us to protect ourselves later on from either a third-party claim, or from a future claim alleging breach by You.
THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER AS TO THE PERFORMANCE, FUNCTIONALITY OR LEGAL COMPLIANCE OF THE SITE OR THE SERVICES. THE SITE AND THE SERVICES ARE BEING PROVIDED TO YOU ON AN “AS-IS” AND “AS AVAILABLE” BASIS. YOU USE THE SITE AND THE SERVICES AT YOUR SOLE RISK. ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED WHETHER SUCH WARRANTIES ARE EXPRESS, IMPLIED, OR STATUTORY.
ANY THIRD PARTY LINKS, RESOURCES, AND CONTENT AVAILABLE WITH THE SITE OR THE SERVICES ARE NOT CONTROLLED BY THE COMPANY, AND THE COMPANY DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, REGARDING SUCH THIRD PARTY LINKS, RESOURCES, AND CONTENT INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT. THE COMPANY WILL NOT BE LIABLE FOR YOUR ACCESS TO, USE OF OR DOWNLOADING OF CONTENT AVAILABLE ON OR THROUGH, THE SERVICES OR SITE.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR THE LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, WAIVERS, AND LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
YOU UNDERSTAND AND AGREE THAT CERTAIN MESSAGING TECHNOLOGIES, INCLUDING RINGLESS VOICEMAIL DELIVERY, FOR EXAMPLE, MAY EXIST IN GREY AREAS OF THE LAW WHERE NO REGULATORY AUTHORITY HAS YET ADDRESSED THE TECHNOLOGY AND YOU AGREE TO ACCEPT ALL RISKS RELATED TO THE SAME. YOU AGREE NOT TO USE OUR TECHNOLOGY TO CALL OR TEXT WIRELESS PHONES OR ANY DEVICE WHERE THE CALLED PARTY IS CHARGED FOR THE CALL, WITHOUT WELL DOCUMENTED PRIOR EXPRESS WRITTEN CONSENT. YOU ALSO AGREE NOT TO USE OUR SERVICES TO TELEMARKET TO INDIVIDUALS ON ANY STATE OR FEDERAL DNC LIST WITHOUT EITHER WRITTEN CONSENT OR A VALID ESTABLISHED BUSINESS RELATIONSHIP EXEMPTION.
THE COMPANY DOES NOT AUTHORIZE ANY PERSON TO CREATE FOR IT ANY OBLIGATION OR LIABILITY IN CONNECTION WITH THE SERVICES AND LICENSED IP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY, ITS SUPPLIERS, OR LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, PERSONAL OR REAL PROPERTY DAMAGE, LOSS OF PRIVACY, FAILURE TO MEET ANY DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, OR NEGLIGENCE) AND ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE USE OF OR INABILITY TO USE THE SITE OR THE SERVICES ; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (C) THE COST OF INVESTIGATION, DEFENSE OR SETTLEMENT OF ANY TELEPHONE CONSUMER PROTECTION ACT OR SIMILAR CONSUMER PROTECTION CLAIM OR LAWSUIT; OR (D) ANY OTHER MATTER RELATING TO THE SITE AND THE SERVICES. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CANCEL AND DISCONTINUE USING THE SITE AND THE SERVICES AND TO RECEIVE A REFUND FOR SERVICES YOU DEMONSTRATE WERE PROMISED BUT NOT PROVIDED. IN NO INSTANCE WILL THE COMPANY’S LIABILITY TO YOU EXCEED THE FEES PAID BY YOU IN THE THREE (3) MONTH PERIOD PRIOR TO THE CLAIM AT ISSUE, AND YOU AGREE THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK. THE FOREGOING EXCLUSIONS AND LIMITATIONS WILL APPLY REGARDLESS OF ANY ALLEGATION OR FINDING THAT A REMEDY FAILED OF ITS ESSENTIAL PURPOSE, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) AND EVEN IF THE COMPANY OR OTHERS WERE ADVISED OR AWARE OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR LIABILITY.
(B) ACTS, ERRORS, OR OMISSIONS BY YOU (OR ANY PARTIES WHO USE YOUR ACCOUNT, WITH OR WITHOUT YOUR PERMISSION, TO ACCESS THE SERVICES); (D) CLAIMS FOR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS ARISING FROM THE USE OF THE SITE OR THE SERVICES, THIRD PARTY EQUIPMENT, OR THE INTERNET; (E) CLAIMS ARRISING FROM THE TELEPHONE CONSUMER PROTECTION ACT OR SIMILAR FEDERAL OR STATE CONSUMER PROTECTION LAWS, OR (F) YOUR USE OF THE SITE OR THE SERVICES.
We reserve the right to suspend or cancel the Services at any time if you fail to pay amounts owing when due, violate or breach any of the Terms, or for any other reason at our sole discretion. If the Services are suspended or cancelled, you will still be responsible for payment of all outstanding balances accrued through the remainder of the month or other cancellation date, including any fees described herein. Upon cancellation, your account will remain open for the remainder of time that was pre-paid. TO CANCEL SERVICE YOU MUST DO SO IN WRITING 60 DAYS OR MORE PRIOR TO THE EXPIRATION OF YOUR TERM BY CONTACTING LOYALTY BIZ INC. 1445 Donlon St. #7 Ventura, CA 93003. Your term length will be noted on your written and signed agreement. If you are unclear or have any questions about when your subscription will renew, contact Loyalty BIZ, Inc. Support.
9. EXPORT CONTROL
The United States controls the export of products and information. You agree to comply with such restrictions and not to export or re-export the Services or any portion thereof to countries or persons prohibited under the export control laws. By using downloading and using the Services, you are agreeing that you are not in a country where such export is prohibited and that you are not on the U.S. Commerce Department’s Table of Denial Orders or the U.S. Treasury Department’s list of Specially Designated Nationals. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export, or re-export of the Services.
- Waiver. Any waiver granted herein shall not be deemed effective unless in writing, executed by the party as to whom enforcement of the waiver is sought. A waiver by either party of any provision(s) hereof shall not be deemed a waiver as to any other provision hereof or of any subsequent breach by either party of the same or any other provision.
- Severability. If any provision of these Terms is prohibited or unenforceable by any applicable law, the provision shall be ineffective only to the extent and for the duration of the prohibition of unenforceability, without invalidating any of the remaining provisions.
- Relationship. You acknowledge that the Company is an independent contractor and neither the Company nor any of its directors, officers, agents, employees, or affiliates is or shall be deemed employed by you. The Company reserves the right to determine the method, manner and means by which the Services will be performed. The Company and its directors, officers, agents, employees, and affiliates are not required to perform the Services for you during any particular hour of the day or night, and the time spent providing the Services is at the Company’s discretion. You further acknowledge that the Company is not required to devote its full time or the full time of any of its directors, officers, agents, employees, or affiliates to the performance of the Services, and you acknowledge that the Company has other clients and that it offers Services to the general public. The order and sequence in which the Services are to be performed shall be under the control of the Company and its agents, employees and affiliates, and not under your control.
- Survival. Your obligations under these Terms that by their nature would continue beyond the termination of these Terms including, but not limited to, those sections relating to Indemnification will survive any termination.
- Assignment. We may assign all or part of our agreement, including without limitation, these Terms or the performance of all or any portion of the Services to be provided hereunder, at any time, without your consent. If notice is required for you or the assignee to fulfill any obligations under these Terms, we will provide such notice within a reasonable time of our assignment.
- Attorneys’ fees. If we initiate legal action against you for collection of any amounts owed to us or to enforce our rights and your obligations under these Terms, we are entitled to recover from you our reasonable costs and expenses including, but not limited to, reasonable attorneys’ fees incurred as a result.
- Remedies. The rights and remedies provided to us under these Terms are in addition to any other remedies available at law or in equity.
- Governing law and venue. These Terms shall be governed by and interpreted according to the laws of the State of Utah, without regard to conflicts of law principles. Venue for any action, claim or proceeding pertaining to these Terms shall be in Utah.
9. ACCEPTABLE USE POLICY
PROHIBITED USES AND ACTIVITIES
- No Infringing, Illegal, Threatening, Defamatory, and Offensive Uses. You may not use the Services to violate any applicable laws, rules, or regulations issued or promulgated by any competent government authority, including, but not limited to, the federal Telephone Consumer Protection Act of 1991 (47 U.S.C. § 227), as amended, Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (15 U.S.C. § 103 et. seq), the United States’ National Do Not Call Registry, Rules for Carriers Subpart L “Restrictions on Telemarketing, Telephone Solicitation, and Facsimile Advertising” (47 U.S.C. § 64.1200), and (if applicable) the Canada Anti-SPAM Legislation (S.C. 2010, c. 23). Without limiting the foregoing, Registered User shall not use the Services for, or in connection with, the following:
- Theft or infringement of copyrights, trademarks, trade secrets, or other types of intellectual property.
- Fraud; forgery; or theft or misappropriation of funds, credit cards, or personal information.
- Export, re-export, or transfer of restricted software, algorithms or other data in violation of applicable export control laws.
- Deceptive practices such as posing as another service for the purposes of Phishing or Pharming.
- Distributing any materials of a threatening or harmful nature, including without limitation threats of death or physical harm, or materials that are malicious, harassing, libelous, defamatory, or which facilitate extortion or harmful action.
- Distributing any offensive materials, including without limitation obscene, pornographic, indecent or hateful materials and materials which promote gambling or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Sending unwanted telemarketing, promotional or informational messages without having procured the necessary consents, right and license from the recipient(s) of your messages.
- Sending messages in violation of the National Do Not Call Registry or related considerations under applicable law
- Security and Interference. You may not use the Services to violate, attempt to violate, or knowingly facilitate the violation of the security or integrity of any network, electronic service, or other system that is accessible through, or in connection with, the Services. You shall not use the Services in a manner that interferes with any other party’s ability to use and enjoy the Services, that interferes with the Company’s or its service partners’ ability to provide the Services, or that otherwise may create legal liability for the Company or its service partners in the Company’s sole discretion. You shall not use the Services to violate the acceptable use policy or terms of service of any other service provider, including, without limitation, any Internet service provider. Without limiting the foregoing, you shall not use the Services for, or in connection with, the following:
- Hacking, cracking into, or otherwise using the non-public areas of the Services or any other system without authorization.
- Unauthorized probes or port scans for vulnerabilities.
- Unauthorized penetration tests, traffic that circumvents authentication systems or other unauthorized attempts to gain entry into any system.
- Web crawling which is not restricted to a rate so as not to impair or otherwise disrupt the servers being crawled.
- Unauthorized network monitoring or packet capture.
- Forged or non-standard protocol headers, such as altering source addresses.
- Denial of Service (DoS) attacks of any kind.
- Distributing unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
- Operating network Services such as: open proxies; open mail relays; or open, recursive domain name servers.
- Sharing or publishing content from the Services to cause, or have the consequence of causing, the user of the content to be in violation of the terms and this AUP.
- Spam. You shall not use the Services for purposes of distributing text messaging “spam,” bulk unsolicited messages, or any other form of unsolicited electronic communications distributed on a bulk basis to recipients with which you has no preexisting business or personal relationship. You shall not use the Services to collect responses from spam. You shall not harvest, collect, gather or assemble information or data of users, including e-mail addresses, without their consent. You are solely responsible for obtaining all necessary and appropriate rights, licenses and consents from those person(s) and entity(ies) with whom you message or otherwise communicate with via the Services, prior to commencing any such messaging or communication. Additionally, you shall not use the service to send unwanted messages to individuals who have asked to stop receiving messages through any medium. To the extent required by applicable law, you must track and record all such requests specific to your business. You must also provide recipients of those MMS/SMS messages you send via the Services with conspicuous notice of their ability to opt-out from receiving any future text messages, by texting STOP in a stand-alone message with no additional characters or punctuation. Without limiting the foregoing, you shall not use the Services for, or in connection with, the following:
- Sending pyramid schemes.
- Sending chain letters.
- Sending any mail in contravention of the CAN SPAM Act of 2003 or other applicable state or federal laws and regulations.
- Altering or obscuring mail headers or assuming the identity of a sender without the explicit permission of that sender.
Loyalty BIZ platform responds programmatically to the keyword STOP, and it works with a market leading digital security firm to monitor for and prevent spam.
BY USING THE SERVICES AND LICENSED IP, COMPLETING YOUR REGISTRATION, OR CLICKING ON THE “I ACCEPT” BUTTON BELOW YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND THESE ENTIRE TERMS, AND YOU AGREE TO ALL THE TERMS AND CONDITIONS OF THE SERVICES AND LICENSED IP AS STATED ABOVE.