IMPORTANT NOTE: AlertMedia provides a variety of software products and services to both organizations and individuals. If you are using AlertMedia software products and services as part of an organization that has contracted directly with AlertMedia, then your organization’s agreement(s) with AlertMedia supersede these End User Terms of Service, and some sections or all of these End User Terms of Service may not apply to you. If you have remaining questions or concerns regarding these End User Terms of Service, please contact your organizations program administrator for further clarification.
AlertMedia – End User Terms of Service
Please read these End User Terms of Service carefully. These End User Terms of Service shall become effective as of the date of the activation of your account, your receipt of an e-mail from Alert Media confirming your registration, or your receipt of your first notification from Alert Media Services, whichever happens first. EITHER YOU OR ALERT MEDIA MAY TERMINATE YOUR ACCOUNT AT ANY TIME, AFTER WHICH ANY AND ALL NOTIFICATIONS/ALERT OR DATA ASSOCIATED WITH YOUR ACCOUNT MAY BE DELETED AT ALERT MEDIA’S DISCRETION. THESE TERMS OF SERVICE REQUIRE THAT YOU SUBMIT TO THE LAW AND JURISDICTION OF STATE OF TEXAS. THESE TERMS OF SERVICE ALSO SIGNIFICANTLY LIMIT YOUR ABILITY TO RECOVER FROM ALERT MEDIA. IF YOU DO NOT AGREE TO THESE TERMS DO NOT USE THE ALERT MEDIA SERVICES.
For the purposes of these End User Terms of Service:
1.1. “Alert Media” “us,” “we,” “our” and grammatical variants thereof shall collectively refer to Alert Media Inc., a corporation organized and existing under the laws of the State of Delaware, and its assigns and successors in interest.
1.2. “Alert Media Equipment” shall mean computer and telecommunications devices, Internet access and/or transmission rights owned, operated, and/or maintained by Alert Media and/or Alert Media’s affiliates, agents, or assigns which function to provide the Alert Media Services.
1.3. “Alert Media Services” or “Services” shall mean the products and services provided by Alert Media at any given time, including but not limited to Notification Center, Warning Center, Monitoring Center, Safe Signal, Alert Media Pro, any other software or applications, and any notifications, alerts, e-mail, file storage, and any associated support or custom services, which Alert Media Services may be changed, amended, cancelled and/or otherwise altered at any time in Alert Media’s sole discretion. Alert Media Services include the provision of and use of Alert Media Equipment.
1.4. “Alert Media Software” shall mean any software or application provided by Alert Media at any given time, whether downloaded to your computer, tablet, mobile device, smart phone, or utilized online as part of the Alert Media Services. The Alert Media Software includes the program and any and all copies or portions thereof, whether standing alone or in combination with other programs, as well as the documentation and other materials delivered in connection with the software, if any.
1.5 “Fee” shall mean monies and other consideration you are obligated to pay to Alert Media for the right to use the Alert Media Services subject to the terms and conditions of these Terms of Service and of the particular Alert Media Services for which you have registered, as outlined on the then-current schedule of fees. Fees are subject to change at any time without prior notice.
1.6. “Laws” shall mean the laws, statutes, and regulations then in effect of the United States of America and its various states and dependencies as well as the laws of your country of residence or the country in which you use or access the Alert Media Services and the laws of any provinces, states or dependencies thereof.
1.7. “Parties” shall collectively refer to Alert Media and you.
1.8. “Payment Account” shall refer to the credit card or such other account as is provided by you and accepted by Alert Media upon registration to pay for your Services. Alert Media may add, delete, or modify the methods by which customers can pay for the Alert Media Services at any time without prior notice, in its sole discretion, at which point you must either update your account with a valid Payment Account or your account will be terminated. Payments processed by third party processors are subject to those processors’ terms and conditions of service, and Alert Media makes no representations or warranties with respect to any third party payment services.
1.9 “Premium Services” shall refer to Alert Media accounts for which payment of a Fee is required.
1.10. “Suspend” or “Suspension” shall include the disabling of your account and/or the cessation of transmission of data via your Services.
1.11 “Term” shall be, for Premium Services only, one year or as otherwise stated in the specifications for your Services or for any renewal Term thereof.
1.12. “You,” “you,” “your” and grammatical variants thereof shall mean you, any other entity which has an ownership or other beneficial interest in you, or any other entity in which you have an ownership or other beneficial interest.
1.13. “Your Data” and grammatical variants thereof shall mean any data, including but not limited to notifications, alerts, documents, e-mails, images, web pages, or other content, related to your use of the Alert Media Services or otherwise stored on or transmitted by the Alert Media Equipment.
1.14. “Your Services” and grammatical variants thereof shall mean the specific Alert Media Services for which you have contracted, subject to the limitations and specifications of the particular service effective as of the date of contract.
2. TERM AND TERMINATION.
2.1. You or Alert Media may terminate these Terms of Service at any time for any reason, with or without cause. You may terminate by closing your accounts for all of your Services via Alert Media’s Software, where Alert Media has made this option available to you.
2.2. Notwithstanding the provisions of Section 2.1. to the contrary, the initial Term for Premium Services shall be one year or as otherwise stated in the specifications for your Services, at the end of which term these Terms of Service shall renew automatically for the same period unless terminated prior to renewal pursuant to these Terms of Service. Alert Media may, but is not obligated to, allow you to change the duration of the Term or the specific services for Premium Services at the beginning of any renewal period, and you agree that Alert Media may debit your Payment Account for any resulting Fees.
2.3. Your termination of a Premium Services account shall be effective as of the end of the then-current Term and shall result in the account being downgraded to a free Alert Media account. All other terminations, including a termination by Alert Media with or without cause, shall be effective immediately.
2.4. You further agree that in the event that Alert Media believes, in its sole discretion, that you have breached any provision(s) of these Terms of Service, including but not limited to Sections 3 or 6, Alert Media may, without any liability to you and in addition to any other remedies, terminate or suspend any and all accounts registered by you or your access to your Services and your Data without prior notice to you. If your account is not a Premium Services account it may be suspended after six months of inactivity. If your account is suspended for non-payment of Fees, Alert Media may but is not obligated to restore your Premium Services account for the remainder of the Term upon written notice to Alert Media and payment in full of all Fees due and owing on the account, provided such notice is provided to Alert Media within one year after the first day of the then-current Term (the “Notice Period”). Premium Services accounts not restored during the Notice Period will be terminated immediately upon the expiration of same.
2.5. Immediately upon termination of these Terms of Service all data, including but not limited to notifications/alerts or other files associated with your Services and your Data, will be irrevocably deleted and all transmission of data will cease. Alert Media may, in its sole discretion, make your Data information or content available to you to the extent it has not been deleted.
3.1. For Premium Services, all Fees must be paid in advance of the provision of such Premium Services for the entire Term. Fees must be paid in United States Dollars via the Payment Account, and are nonrefundable (except as expressly permitted otherwise by these Terms of Service), including any Fees paid in advance for the Term during which you terminate. You agree that Alert Media may automatically debit the Fee and any additional fees from the Payment Account unless specifically provided otherwise. You also agree that Alert Media may automatically debit your Payment Account, without further authorization from you, for any renewal term, additional services, and any fees or expenses applicable to your Services, including but not limited to fees for your use of services in excess of those included within your Services. If payment in full is not received by Alert Media from the provider of your Payment Account or its agents, you agree to pay all amounts due from you for your Services without demand by Alert Media. Termination of your account shall not relieve you of any obligation to pay any accrued fees or charges.
3.2. In addition, certain Alert Media Services may be subject to setup, service, or other fees, and by registering for such Alert Media Services you authorize Alert Media to debit your Payment Account for any and all such fees.
3.3. Your credit or debit card issuer, directly or through third-party service providers, may provide Alert Media with updated credit card numbers, expiration dates, or other information which may be used to renew services or make payments under these Terms of Service. Should Alert Media choose, in its sole discretion, to participate in such auto-update programs, you agree that Alert Media may share your Payment Account information with such third-party providers and may update your Payment Account with information provided through such services. You authorize any and all charges to your Payment Account using such updated information, whether or not you or Alert Media have prior notice of same. Alert Media cannot guarantee that your Payment Account will be updated, and you acknowledge and agree that it is your responsibility to keep your payment information current and up-to-date at all times and that you shall be liable to Alert Media for your failure to do so, including for any charges that Alert Media may incur as a result of your failure to keep your payment information current. Alert Media shall have no liability for declined payments or incomplete or out-of-date Payment Account information.
3.4. Alert Media may offer promotional rates or special offers, the terms of which may or may not be more favorable than the terms and conditions for your Services. Any such promotions or modifications shall not affect your obligations under these Terms of Service. Promotional fees may be subject to additional terms and conditions which, to the extent they conflict with the terms of these Terms of Service, shall govern. Promotional fees and special offers may not be combined.
3.5. Certain special offers for Premium Services may include a free introductory period. Unless you terminate your account prior the expiration of such introductory period you agree that you will be liable for and Alert Media may automatically debit your Payment Account for the Fees for the Premium Services associated with that account. Alert Media reserves the right at any time to withhold, modify, or discontinue, temporarily or permanently, such introductory or promotional offers, with or without notice.
3.6. Changes to your Services, including but not limited to downgrades by you or termination of your Premium Services, may result in loss of your Data, features, or a reduction in the amount of available capacity for your Data provided by the Alert Media Services. The amount charged to your Payment Account on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades.
3.7. You shall pay all costs of collection, including reasonable attorney’s fees and costs, in the event any invoice requires collection efforts as determined in Alert Media’s sole discretion. Except where prohibited by Law, all accounts referred to a collection agency shall be subject to an additional fee, which must be paid in full before the account is reactivated.
3.8. International customers bear the risk of currency fluctuations and any fees or taxes associated with the conversion of foreign currencies into United States Dollars. Certain Alert Media Services will not be available to international customers until Alert Media is able to receive satisfactory confirmation from such customer’s Payment Account provider, in Alert Media’s sole discretion, that the funds will be available for debit from the international customer’s account. Orders from international customers will not be accepted unless the country provided in the contact information matches that on file for the Payment Account.
3.9. You agree that Alert Media may start the provision of Services immediately, and that you will not be entitled to cancellation or a “cooling off” period except to the extent a waiver of those rights is prohibited by Law.
3.10. If your Alert Media Services are free, you may still incur expenses for internet access or data transmission from third-party service providers not affiliated with Alert Media.
Subject to and conditioned upon Alert Media’s retained rights and all other terms and conditions set forth in these Terms of Service, Alert Media offers the Alert Media Services as soon as practicable after registration. You are responsible for maintaining the confidentiality of both your user name and password for your account and you are fully responsible for all activities that occur under your password and your account. You agree to immediately notify Alert Media of any unauthorized uses of the account or any other breaches of security. Alert Media cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will Alert Media be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. The Alert Media Services are subject to the following conditions and restrictions:
4.1.1. Alert Media shall provide to you a nontransferable, revocable, non-sublicensable, non-exclusive and limited license to use the Services.
4.1.2. Alert Media, either directly or through its assignee or licensee, shall provide such support as is outlined in the specifications for your Services or as otherwise shown on the Alert Media website. Alert Media is not obligated to provide any customer service or technical support except as specified in this Section 4, and cannot guarantee that your questions will be answered in a timely fashion or otherwise. Notwithstanding the foregoing, Alert Media at its sole discretion may at any time alter or cease providing the support provided pursuant to these Terms of Service without any liability to Alert Media.
4.1.4. You are responsible for monitoring your use of the Alert Media Services, and agree to check your notifications/alerts and delete them on a regular basis in order to ensure compliance with this paragraph. Should your use of the Alert Media Services exceed the limits specified for your Services, Alert Media may return or reject any and all notifications/alerts sent to you to the originating sender and delete or deny access to the storage space for your Data without liability to you. You agree that Alert Media may terminate your account without notice or liability to you for usage in excess of permitted amounts.
4.1.5. Alert Media reserves the right to alter, amend, or discontinue the provision of some or all of the Alert Media Services, including but not limited to the provision of certain Alert Media Services to international customers in a particular market, at any time in Alert Media’s sole discretion.
4.1.6. You are responsible for backing up your Data on your own computer. Alert Media does not warrant or otherwise guarantee that it will backup your Data or that data which has been backed up can be retrieved, and will not be responsible for any archiving or backup of your Data. If any of your Data is damaged, deleted, lost or corrupted in any way, or becomes otherwise unavailable, whether due to termination or suspension of your account pursuant to these Terms of Service or otherwise, Alert Media will have no obligation or liability to you.
4.1.7. If the Alert Media Services are restricted by file storage limitations, you agree to abide by such limitations and you acknowledge that your use of Alert Media Services and ability to send and receive notifications may be restricted. You acknowledge and agree Alert Media shall have no liability for restrictions on your use of Alert Media Services based on such file storage restrictions.
4.2.1. Alert Media may, in its sole discretion, provide you with Alert Media Software in combination with your Services. If you receive software from Alert Media under these Terms of Service and you are presented with Master Terms of Service, and applicable Order Form or other documentation (“License Agreement”), then the terms of that License Agreement shall govern and control over these Terms of Service to the extent of any conflict. Otherwise, upon payment of all Fees due and owing to Alert Media under these Terms of Service, Alert Media hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the Alert Media Software and all related documentation for your own personal or business use during the term of these Terms of Service. Any rights not expressly granted herein shall be reserved for Alert Media. Source code or other information pertaining to the logic design of the Alert Media Software is specifically excluded from the license granted hereunder.
4.2.2. Alert Media reserves the right to charge for the Alert Media Software or any upgrades therefor at any time.
4.2.3. You recognize that the Alert Media Software and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of the Alert Media Software at your home or office, are proprietary, and that all rights thereto, including copyright, are owned by Alert Media or, if sublicensed by Alert Media, by the respective owners of the Software. You further acknowledge that you have been advised that the Alert Media Software, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of Alert Media, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to Alert Media, and that its use and disclosure must be carefully and continuously controlled.
4.2.4. You will not: (i) reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the Alert Media Software, whether such Alert Media Software is in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for your use pursuant to these Terms of Service, nor; (ii) provide or make the Alert Media Software available to any person or entity other than your employees or agents who have a need to know consistent with your use thereof under these Terms of Service, nor; (iii) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under these Terms of Service, nor; (iv) copy for your own use or the use of others operator manuals, system reference guides, training materials and other user-oriented materials without the prior written consent of Alert Media. In order to protect Alert Media’s trade secrets and copyrights in the Alert Media Software, you agree to reproduce and incorporate Alert Media’s trade secrets or copyright notice in any copies, modifications or partial copies.
4.2.5. You agree to notify Alert Media forthwith if you obtain information as to any unauthorized possession, use or disclosure of any Alert Media Software by any person or entity, and further agree to cooperate with Alert Media at Alert Media’s expense, in protecting Alert Media’s proprietary rights.
4.2.6. Alert Media shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Services, including but not limited to all new programs, modifications, refinements, updates and enhancements thereof (collectively, “Improvements”) or any other aspect of the Services. The foregoing intellectual property rights shall specifically include all Improvements developed by or for Alert Media in connection with providing the Services to you, even if such Improvements result from your request and/or include or derive from any suggestions, solutions, contributions, comments, or other feedback you may from time to time provide to Alert Media with respect to the Services (“Feedback”). Feedback shall not create any confidentiality obligation for Alert Media. All of the foregoing shall belong exclusively to Alert Media, with Alert Media having the sole right to obtain, hold and renew in its own name, patents, copyrights, trademarks, trade secrets, registrations and/or other appropriate protection. To the extent that the exclusive title and/or ownership rights may not originally vest in Alert Media as contemplated hereunder, you at no additional charge, hereby irrevocably assign, transfer, and convey to Alert Media all right, title and interest therein.
4.2.7. Alert Media Services may provide customers with the ability to interact with certain third party software (the “Third Party Software”). The license conditions governing the use of the Third Party Software may differ from Alert Media’s own software licenses. Customers of Alert Media are bound by the conditions of all licenses pertaining to such Third Party Software and should make themselves familiar with their terms and conditions. THE COMPATIBILITY PROVISION AND OFFERING OF SUCH THIRD PARTY SOFTWARE BY ALERT MEDIA DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN ALERT MEDIA MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH THIRD PARTY SOFTWARE.
4.2.8. In the event of termination of these Terms of Service, or upon any act which shall give rise to Alert Media’s right to terminate, or upon the expiration of the license for Alert Media Software which is subject to a limited-duration license, any and all licenses granted under this Section 4.2 shall terminate automatically, and you will remove, erase or destroy the Alert Media Software and documentation and all copies thereof, wherever located, without demand or notice.
4.2.9. Alert Media may stop providing the Software or any updates thereto, including but not limited to the Third Party Software, at any time without notice or any further liability to you.
4.2.10. Certain Software (including Third Party Software) may not be available to international customers.
4.3. If Alert Media provides any Alert Media Equipment, such Alert Media Equipment is provided in order for you to access and use the Alert Media Services. Alert Media shall have no liability for your use of Alert Media Equipment, and the Alert Media equipment is not delivered free of error. You might also use your own or other equipment (“Third Party Equipment”) in conjunction with the Alert Media Services. You are fully and completely responsible for the use of Alert Media Equipment and any Third-Party Equipment. You are responsible for monitoring the wear and tear of such Alert Media Equipment and Third Party Equipment and routinely replacing Alert Media Equipment and Third Party Equipment to avoid failure.
5. NO WARRANTIES BY ALERT MEDIA.
5.1. You acknowledge that many of the events and circumstances for and in which Alert Media Services are used are inherently dangerous, unpredictable and constitute a threat to the health, safety and well-being of persons and/or property. You further acknowledge that such events are completely outside the control of Alert Media. Therefore, Alert Media does not assume any risk, liability or responsibility whatsoever for the use of Alert Media Services by you, your authorized users or any recipient of any notification or message from Alert Media Services. By using Alert Media Services, you and each authorized user agree to assume all of the risks associated with such use. Alert Media Services are provided as an enhancement to regular and emergency communications and communication systems and not as a replacement. Alert Media also has no control over third parties including but not limited to cellular service providers, internet service providers, wifi providers, phone carriers, first responders, emergency personnel, and/or communication or devise manufacturers. In an emergency situation, you, your authorized users and all recipients of messages and notifications generated from the Alert Media Services should take the appropriate action requested by first responders, 911 dispatch, fire departments, police departments, other law enforcement, public officials or public health officials. Any information or instructions given by such personnel should take precedence over any information received through Alert Media Services.
5.2. Location data provided by any of Alert Media Services is for basic navigational and location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Alert Media does not guarantee any location data. You and your authorized users should always be aware of surroundings and use the Alert Media Services in a safe manner that does not interfere with other tasks such as driving or walking.
5.3. Accordingly, Alert Media Services are provided, “AS IS” and “WITH ALL FAULTS” and without any warranty of any kind. You acknowledge that the Alert Media Services are priced affordably based on the allocation of risk provided for in these Terms of Service. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ALERT MEDIA EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NONINFRINGEMENT. FURTHERMORE, ALERT MEDIA DOES NOT WARRANT THAT THE SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, OR THAT THE SERVICES WILL BE ERROR FREE, ALWAYS AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE OR COMPLETE. ALERT MEDIA SHALL NOT BE RESPONSIBLE FOR ANY THIRD PARTY NOTIFICATIONS, ALERTS, WARNINGS, DATA BREACHES, HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR ACCOUNT.
6. ALERT MEDIA’S LIMITED LIABILITY.
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS OF SERVICE. IN NO CASE SHALL ALERT MEDIA, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE ALERT MEDIA SERVICES. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, ALERT MEDIA’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THESE TERMS OF SERVICE, ALERT MEDIA DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE ALERT MEDIA SERVICES, AND ALERT MEDIA WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE ALERT MEDIA FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF ALERT MEDIA FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THESE TERMS OF SERVICE SHALL BE LIMITED TO TEN DOLLARS ($10).
7. YOUR ADDITIONAL AGREEMENTS, OBLIGATIONS AND WARRANTIES.
7.1 You acknowledge that only you may use your account and you agree and warrant that you shall not permit anyone else to use your account or authorize any third party to access your account on your behalf. You are responsible for all activity that takes place with respect to your account, and you agree that in the event Alert Media believes or has reason to believe, in its sole discretion, that you have breached these Terms of Service or any of the warranties in this Section 7, Alert Media may, without prior notice to you and in Alert Media’s sole and exclusive discretion, suspend the provision of the Alert Media Services and/or terminate these Terms of Service, without any liability of any kind. As more completely set forth in Sections 5, 6 and 9, you waive any and all claims you may have, now and forever, against Alert Media relating to any action taken under this Section 7.1, and agree to indemnify and hold harmless Alert Media from and against any claims brought by third parties as a result of your Data or your use of the Alert Media Services.
7.2. You agree and warrant that you shall not send mass unsolicited or unwanted communications or solicitations; that you shall not use your account for impermissible or abusive postings or excessive or repeated off-topic or commercial communications; that you will not send any form of junk mail communication; and that you shall not engage in any other form of spamming, spoofing, phishing, or bombing. Alert Media reserves the right to block communications from any source, including outgoing communication from or ingoing communication to your account, which Alert Media believes, in its sole discretion, is being used to send such unsolicited communication. While Alert Media continues to actively review and implement new technology to ensure that its customers neither send nor receive unsolicited communication, there is no currently available technology that will totally prevent the sending and receiving of unsolicited communication.
7.3. You agree and warrant that your use of the Alert Media Services and Alert Media Equipment, and all sales, distributions, advertisement, or promotion which are in any way associated with your use of the Alert Media Services or Alert Media Equipment, shall at all times comply with your warranties under this Section 7 as well as all relevant laws, including but not limited to CAN-SPAM.
7.4. Alert Media may immediately suspend or terminate your use of the Services and your account, without notice, in Alert Media’s sole discretion to prevent any harm to Alert Media’s network, its business or its other customers, based on your misuse or alleged misuse of the Services, including in violation of these Terms of Service, or for any other business reason.
7.5. You agree and warrant that your Data shall be transmitted exclusively to consenting adults and only to places in which such materials comply with contemporary community standards.
7.6. You agree and warrant that your Data shall not violate any Laws concerning obscenity and shall not contain or link to any pornography or other content deemed objectionable by Alert Media, in its sole discretion.
7.7. You agree and warrant you will not access the Alert Media Services in order to build a competitive product or services.
7.8. You agree and warrant that you will not use the Alert Media Services to transmit messages which: display, contain or link to any harmful matter or indecent materials or communications which are available to, or accessible by, minors; or display or contain any material that consists of pornography, child pornography, or other obscene content, including but not limited to content involving or by a performer who is portrayed or made to appear as a person under the age of eighteen years of age or which could otherwise result in harm to minors, all as determined in Alert Media’s sole discretion.
7.9. You agree and warrant that you shall not damage, disable, overburden, or impair the Alert Media Services; interfere with anyone else’s use or enjoyment of the Alert Media Services; or interfere with, defame, or abuse Alert Media or its officers, employees, or agents.
7.10. You affirmatively represent, agree and warrant that your Data and the use or distribution of your Data does not infringe the intellectual property rights of others, including, but not limited to, copyrights, trademark and service mark rights, patent rights and rights of publicity, both in the United States and throughout the world.
7.11. You agree and warrant that your Data shall not constitute or contain or link to material: which is libelous, slanderous, or defamatory; which violates the right of publicity or privacy of any party; or which will violate or infringe upon or will otherwise give rise to any adverse claim with respect to any common law or other right of any person or other entity, including, without limitation, privacy rights and all other personal and proprietary rights.
7.12. You agree and warrant that your Data shall not contain or link to any material which is offensive, harmful, violent, threatening, abusive or hateful, in Alert Media’s sole discretion.
7.13. You license Alert Media the right to your Data in order for Alert Media to provide Alert Media Services to you and Alert Media customers.
7.14. You agree and warrant that any and all material(s) of every kind which you store or transmit using Alert Media Services or Alert Media Equipment shall at all times be free from any and all damaging software defects, including, but not limited to, software “viruses,” “worms,” “Trojan horses,” and other source code anomalies, which may cause software or hardware disruption or failure, reduced computer operating speed, or compromise any security system. You agree that you will not attempt to access the Alert Media Equipment or web site or another person’s web site without authorization, or use the Alert Media Services to carry out, or assist in the carrying out of, any “denial of service” attacks on any other website or internet service.
7.15. You agree and warrant that you shall not engage in any false, deceptive or fraudulent activities in association with your use of the Alert Media Services or Alert Media Equipment, including misrepresenting any other person or entity.
7.16. You agree and warrant that you shall not resell or redistribute the Alert Media Services or any part thereof, including but not limited to your Alert Media account, notifications, alerts, or use any unauthorized means to modify or reroute the Alert Media Services (or to attempt same).
7.17. You agree and warrant that all applicable taxes have been paid or will be paid in full by you when due regarding all businesses and employees associated with your use of the Alert Media Services and that no taxing authorities shall have any claim against Alert Media or any persons affiliated therewith for the payment of such taxes.
7.18. You represent and warrant that you are over eighteen years of age and are fully competent to enter into these Terms of Service.
7.19. You represent and warrant that you are not a national or resident of Burma/Myanmar, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, and Syria or any other country subject to U.S. Treasury Department embargo restrictions, and that you are not listed in the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specially Designated Nationals and Blocked Persons” maintained by the U.S. Treasury Department. You further acknowledge that you are not a national or resident of a country whose name is otherwise omitted from the registration form for Alert Media Services. Residents of countries which are serviced by an Alert Media affiliate are required to contract with those Alert Media affiliates, and you represent and warrant that you are not a resident of one of those countries.
7.20. You agree to abide by United States and other applicable export control laws and you further agree not to upload to your Alert Media account any data or software that cannot be exported without prior written government authorization.
7.21. You agree not to use your account for the storage of files other than in the course of normal notification and alert usage or as provided otherwise in the specifications for your Services.
7.22. You grant to Alert Media and to Alert Media’s affiliates a perpetual, irrevocable, fully-paid up, nonexclusive, transferable, and worldwide license to use all of your Data in the performance of the Alert Media Services and in any other manner related thereto or otherwise permitted under these Terms of Service.
8. CONFIDENTIALITY, TRADEMARK, AND COPYRIGHT
8.1 “Alert Media” is a service mark of Alert Media, LLC, all rights reserved. The trademarks, logos, and service marks displayed on this web site (collectively, the “Marks”) belong to Alert Media and/or its affiliates or third parties which have licensed those rights to Alert Media (“Partners”); Alert Media and Partners retain all rights to the Marks and nothing in these Terms of Service grants you or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce, or display any Marks without their owner’s prior written consent. All other trademarks, product names, and company names and logos appearing on Alert Media’s web site are the property of their respective owners.
8.2 Unless expressly stated otherwise on the Alert Media web site, you should assume that all content, images, and materials appearing on this web site (collectively the “Alert Media Content”) are the sole property of Alert Media. Both U.S. and international copyright and other intellectual property laws and treaties protect such Alert Media Content. You may not use, reproduce, display, or sell any Alert Media Content without Alert Media’s prior written consent. You may not link to any page or frame any portion of Alert Media’s website in such a way as to remove, cover, alter, or obscure Alert Media’s trademarks or as would otherwise confuse viewers as to the origin of the content.
9. YOUR INDEMNIFICATION OF ALERT MEDIA.
You agree that you shall fully defend and indemnify Alert Media, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, affiliates, investors, subsidiaries, successors and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys’ fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in these Terms of Service, including, but not limited to, your warranties set forth in Section 7 or your violation of a third party’s intellectual property rights. You further agree to defend, indemnify and hold harmless Alert Media, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, successors, and assigns, from and against any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys’ fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of these Terms of Service. You agree that Alert Media shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
10. NO JOINT VENTURE OR PARTNERSHIP
Nothing in these Terms of Service is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between Alert Media and you, nor shall anything in these Terms of Service be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between Alert Media and you. Alert Media shall have no control or ownership interests of any kind in your business. Alert Media shall have no direct financial or other interest in, nor in any way “own” any online venture pertaining to your use of the Alert Media Services or Alert Media’s Equipment. Alert Media’s relationship to you shall be restricted to matters pertaining to the provision of the Alert Media Services as set forth in these Terms of Service.
11. SERVICES RENDERED ON A NON-EXCLUSIVE BASIS.
Any and all services which are or may be provided to you by Alert Media pursuant to these Terms of Service, including the licensure of rights herein, are not exclusive and nothing in these Terms of Service shall limit or restrict Alert Media from providing similar services and granting similar licenses to third parties regardless of whether such third parties are competitors of you. Nothing in these Terms of Service shall limit or restrict Alert Media from engaging in any activities similar to yours or in competition with you.
12. NO EDITORIAL CONTROL BY ALERT MEDIA.
Alert Media and you agree that, consistent with the strict policy of Alert Media, and in reliance on your express warranties regarding the substantive content of data, advertisements, communications, messages and other materials which you shall store and/or otherwise disseminate via the use of Alert Media’s Services or Alert Media Equipment, Alert Media shall neither have nor exert any editorial or other subjective control over the substantive content of such data, advertisements, communications, message or other materials. Alert Media exercises no control over information which is found on the internet, except for its own web site, and cannot be held responsible for the accuracy, correctness, or legality of such information. You are solely responsible for verifying the accuracy and suitability of information and services you obtain from third parties via the internet.
13.1.1. provide the Alert Media Services to Alert Media customers;
13.1.2. comply with legal process or other legal requirements;
13.1.3. protect and defend the rights or property of Alert Media or its officers, agents, affiliates, licensees, and customers;
13.1.4. carry out its obligations under or enforce these Terms of Service; or
13.1.5. investigate violations of these Terms of Service or assist with criminal or civil investigations.
13.2. INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT ALERT MEDIA MAY DISCLOSE PERSONAL INFORMATION ABOUT THEM AND THEIR ACCOUNT PURSUANT TO THIS SECTION, AND WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER NATIONAL AND INTERNATIONAL LAW.
In case any one or more of the provisions contained in these Terms of Service shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and these Terms of Service shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of these Terms of Service shall not affect the validity or enforceability of any other provision.
15. NON-ENFORCEMENT DOES NOT CONSTITUTE WAIVER.
Failure of Alert Media at any time to enforce any of the specific provisions of these Terms of Service shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of these Terms of Service shall be valid unless made in writing and signed by duly authorized representative of Alert Media.
16.1. Alert Media may provide notice to you via sms to the mobile phone or e-mail sent to the e-mail address associated with your account at the time such notice is sent. Such notice is deemed effective at the date and time of transmission, whether you receive it or not, and shall be deemed written notice for the purposes of these Terms of Service.
16.2. You may provide notice to Alert Media by email to email@example.com. Such notice is deemed given upon Alert Media’s receipt thereof.
17. FORCE MAJEURE.
17.1. In the event of “force majeure” (as defined below), Alert Media may terminate these Terms of Service without liability to you. For purposes of these Terms of Service, “force majeure” shall mean circumstances or occurrences beyond Alert Media’s reasonable control, whether or not foreseeable at the time of entering into these Terms of Service, in consequence of which Alert Media cannot reasonably be required to perform its obligations hereunder or otherwise perform its obligations under these Terms of Service. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics, governmental regulations and/or similar acts, embargoes, internet or cellular service interruption, electrical outages, termination or temporary unavailability of any computer hardware or software, server, or network on which the Alert Media Services are located or maintained or through which the Alert Media Services are provided, and nonavailability of any permits, licenses and/or authorizations required by governmental authority.
17.2. Alert Media reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Alert Media Services (or any part thereof) with or without notice, including the right to cease all business operations in the United States or elsewhere. You agree that Alert Media shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Alert Media Services.
18. NO ASSIGNMENT BY YOU; ASSIGNMENT BY ALERT MEDIA.
These Terms of Service and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without Alert Media’s prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, these Terms of Service shall be binding upon your successors and assigns, if any. Alert Media may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion, without consent by or notice to you.
19. JURISDICTION, VENUE, AND WAIVER OF JURY TRIAL.
19.1. YOU AGREE TO NEGOTIATE WITH ALERT MEDIA IN GOOD FAITH TO RESOLVE OR SETTLE ANY CLAIM OR DISPUTE IN ANY WAY RELATING TO OR CONCERNING THESE TERMS OF SERVICE.
19.2. ANY AND ALL DISPUTES WHICH ARE NOT FIRST RESOLVED INFORMALLY MUST BE BROUGHT IN EITHER THE COURT OF TRAVIS COUNTY, TEXAS OR THE UNITED STATES DISTRICT COURT IN AUSTIN, TEXAS, WHICH COURTS SHALL HAVE EXCLUSIVE JURISDICTION OVER ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR IN ANY WAY RELATING TO THESE TERMS OF SERVICE AND/OR YOUR ACCOUNT(S) WITH ALERT MEDIA. You and we irrevocably consent to personal jurisdiction and venue in such courts and you waive any challenge which you have or which may hereafter arise to personal jurisdiction or venue in such courts. You further agree that Alert Media shall be entitled to collect its attorneys’ fees, costs and other expenses in the event that Alert Media acts to enforce this forum selection clause, regardless of whether Alert Media prevails in the underlying action.
19.3. In addition to the foregoing, YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THESE TERMS OF SERVICE, YOU WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND ALERT MEDIA THAT IS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THESE TERMS OF SERVICE AND/OR YOUR ACCOUNT(S) WITH ALERT MEDIA, and that such waiver shall be enforceable up to and including the day that trial is to start. Should any legal fees, costs, or other expenses be incurred by Alert Media with regard to enforcement of this jury waiver provision, Alert Media shall be entitled to recover such legal fees, costs, or other expenses without regard to whether Alert Media prevails in the underlying case.
19.4. Neither you nor Alert Media may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to these Terms of Service, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. YOU AND ALERT MEDIA ACKNOWLEDGE THAT THIS SECTION WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION
19.5. These Terms of Service shall be interpreted according to the laws of the State of Texas, without regard to conflicts of law principles.
20. SUCCESSORS AND ASSIGNS.
These Terms of Service shall be binding upon and inure to the benefit of the Parties’ respective heirs, personal representatives, executors, administrators, successors and assigns.
21. ENTIRE AGREEMENT.
These Terms of Service constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of Alert Media has any authority to make any representation or promise in connection with these Terms of Service or the subject matter thereof which is not contained expressly in these Terms of Service, and you hereby acknowledge and agree that you have not agreed to these Terms of Service in reliance upon any such representation or promise. These Terms of Service are solely for the benefit of you and Alert Media. To the extent of any conflict between these Terms of Service and the License Agreement which governs your use, the terms and conditions of the License Agreement shall govern and control.
22.1. These Terms of Service may be materially altered by Alert Media by posting the new version of these Terms of Service at www.AlertMedia.com and if posted in this manner, shall be effective immediately upon posting such notice. You accept and shall be bound by such changed terms unless you opt to terminate these Terms of Service within five days of the posting of notice of such change.
22.2. You may not modify these Terms of Service, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of Alert Media. No additional or conflicting term in any other document used by you will have any legal effect.
23. STATUTE OF LIMITATIONS.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one year after such claim or cause of action arose or be forever barred.
Last updated: 05-16-2016