(Last Reviewed on September 2, 2014)
If you are an employee, consultant or contractor acting on behalf of an entity, your agreement to these terms will be deemed to be the agreement of that entity. You and/or any entity for which you act on behalf of (“you” and/or “Subscriber”) represent and warrant that you have authority or have been provided authority to bind the entity to the terms and conditions of this Agreement.
TigerText, Inc., a Delaware corporation (“TigerText”) is only willing to grant you access to the Services upon the condition that you accept all of the terms contained herein. By clicking “Accept”, executing the signature block below, or accessing, downloading, or using the Services, you accept all of the terms of this Agreement. If you do not agree to (or cannot comply with) all of the terms of this Agreement, please click “Decline” or do not execute this Agreement or access, download or use the Services.
If you are deemed to have ordered the Services, TigerText’s acceptance is expressly conditional on assent to these terms to the exclusion of all other terms (specifically including any new or different terms contained in a purchase order). If these terms are considered an offer by you, acceptance is expressly limited to these terms. Written approval is not a prerequisite to the validity or enforceability of this Agreement and no solicitation or any such written approval by or on behalf of TigerText shall be construed as an inference to the contrary.
Notwithstanding anything to the contrary, if you and TigerText have both executed a written Subscriber Agreement which governs access to or use of the Services, then the terms of the Subscriber Agreement shall govern and control and to the extent there is a direct conflict between the terms of this Agreement and the terms of the Subscriber Agreement.
“Services” means (i) one or more mobile or web enterprise solutions, services and/or applications enabled by access to the enterprise software solution hosted by TigerText, (ii) any object code version of TigerText’s proprietary computer programs delivered to you hereunder for use in connection with any TigerText service or product; (iii) any connector software and/or any other server-side software, each of which may be delivered to you hereunder for use in connection with any TigerText service or product; (iv) any of TigerText’s websites or webpages, and (v) all other software, applications, application programming interface, proprietary computer programs, documentation relating to any of the foregoing, backup copies, updates, upgrades, maintenance releases, or bug fixes provided by TigerText, whether in read only memory, on any other media or in any other form.
Subject to the terms and conditions of this Agreement, during the applicable Agreement Term (as defined below), TigerText grants to you a non-exclusive, non-transferable and non-sublicensable right for you to access, download and use the Services in conjunction with your internal business purposes and in accordance with TigerText’s applicable documentation.
You are granted permission to access, download and use the Services, provided that:
• You do not copy, rent, lease, lend, sell, redistribute, sublicense or assign the Services;
• You do not use the Services for any illegal or unauthorized purposes that are beyond the scope of the Services’s expected use;
• You do not modify the Services or create derivative works based upon any of the Services;
• You do not wrongfully interfere with operation of the Services or with any other person’s use of the Services;
• You do not gain unauthorized access to the Services;
• You do not use the Services in excess of or beyond the maximum number of registered users and/or devices that you have agreed to;
• You agree that you are solely responsible for your conduct and any data, text, information, screen names, graphics, photos, profiles, audio and video clips, links and other content and materials that you submit, post, display and transmit using the Services;
• You do not alter, modify, adapt, reverse engineer, decompile, disassemble or hack the Services;
• You do not create or transmit unwanted email, junk email, bulk email, promotions or spam to any TigerText user;
• You do not transmit any worms, bugs, or viruses or any code of a destructive nature using the Services;
• You do not violate anyone else’s legal rights or any laws in your jurisdiction while using the Services;
• You agree that you are solely responsible for any message data sent from your account;
• You agree to use the Services in accordance with all applicable laws and that this Agreement is void where prohibited;
• You agree not to use the Services to transmit content that may be deemed unlawful, threatening, harassing, racist, abusive, libelous, pornographic, vulgar, defamatory, obscene, indecent, or otherwise inappropriate, including any messages constituting or encouraging criminal conduct; content that violates or infringes on TigerText’s legal rights or copyrights, or the legal rights or copyrights of others;
• You do not use the Services or export the Services in violation of U.S. export laws and regulations;
• You do not enable others to violate any of these terms and conditions.
• You are at least 18 years of age or older.
A violation of any of the terms in this Agreement will result in the termination of your TigerText account and your inability to access or use the Services. In addition, we reserve the right to refuse service to anyone for any reason at any time. We may (but have no obligation to) remove content and accounts containing content that we determine (in our sole discretion) is unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionable. While TigerText prohibits certain conduct and content, you understand and agree that TigerText is not responsible for the content transmitted between TigerText users. Notwithstanding TigerText’s governing terms and conditions, you acknowledge that you may still be exposed to offensive or unlawful content and agree you assume these risks and use the Services at your own risk. We further reserve the absolute right to reclaim names and keywords from you and others on behalf of businesses or individuals that may a hold legal claim or a trademark right in those words, as determined by us in our sole discretion.
TigerText retains ownership of the Services and reserves all rights not expressly granted herein. TigerText owns and retains all right, title, and (except as expressly licensed hereunder) interest in and to the Services and all copies or portions thereof, and any derivative works thereof (by whomever created). All suggestions or feedback provided by you, including your employees, contractors or other agents, with respect to the Services shall be TigerText’s property and deemed Confidential Information (as defined below) of TigerText, and you hereby assign the same to TigerText. There are no implied licenses granted by TigerText under this Agreement.
“TigerText” and other TigerText graphics, logos, designs, page headers, button icons, scripts and service names are trademarks in the United States and other countries. Our trademarks and trade dress, as well as third party trademarks, logos and service marks used in conjunction with the Services, may not be used in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of TigerText.
You represents and warrant that you fully understand and acknowledge that (i) the Services are intended to deliver non-critical, non-emergency messages between users; (ii) the Services are dependent upon a number of factors outside the control of TigerText, including but not limited to, the operation of third party provided hardware and network services; (iii) the Services are not a substitute for any of Subscriber’s current systems of administering and safeguarding medical treatment and/or medicine; (iv) there may be occasional communication failures or delays in the delivery or receipt of properly sent TigerText messages, and (v) the Services are not expected to perform at the same level of performance and/or reliability one might expect from medical devices used in the delivery of critical medical care environments.
By using the Services, Subscriber grants TigerText permission to send all end users in its organization messages regarding the Services, its features, service alerts, and network activity. Notwithstanding the foregoing, it is Subscriber’s responsibility to register for updates from, and/or regularly check, TigerText’s webpages at http://status.tigertext.com and http://www.tigertext.com/releasenotes/ for updates with respect to the Services. Subscriber’s continued use of the Services after such updates will constitute its acceptance of the changes.
This Agreement shall be effective as of the date you accept the terms herein or first access, download or use any of the Services (the “Effective Date”) and shall remain in effect for so long as you use or access any of the Services (the “Agreement Term”). Upon termination of the Agreement Term, you shall no longer be permitted to use or access the Services. The terms herein that contemplate obligations after the Agreement Term, including but not limited to Indemnification, Disclaimer, Limitation of Liability, Controlling Law and Severability, and Confidentiality, shall survive termination.
A paid subscription to TigerText entitles you to the level of support included in your subscription package, which shall include, at a minimum, standard TigerText customer support via email and standard customer training, including a self onboarding email and limited implementation email support thereafter. Additional support, implementation and professional services may be purchased by you. All such additional services delivered by TigerText shall be subject to the terms and conditions of this Agreement.
You shall own all data, text, information, screen names, graphics, photos, profiles, audio and video clips, links and other content and materials that you submit, post, display and transmit using the Services, (collectively, “Data”), and TigerText acknowledges that it will not acquire any rights in Data. TigerText shall only use Data to fulfill its contractual obligations. You shall be fully liable and responsible to ensure that your Data does not violate any law, regulation or the terms herein. All of your Data will be processed and stored within the geographic limits of the United States of America.
TigerText will comply with data breach laws and industry standards in the United States of America, including but not limited to HIPAA and HITECH. TigerText and any subcontractors to whom Data is provided shall maintain a comprehensive data security program, which shall include reasonable and appropriate technical, organizational and security measures against the destruction, loss, unauthorized access or alteration of Data in the possession of TigerText or such subcontractors, and which shall be (i) no less rigorous than those maintained by TigerText for its own information of a similar nature, and (ii) no less rigorous than typical security standards in the industry.
By accessing, downloading or using the Services you agree that TigerText may include your name in TigerText’s list of customers that TigerText provides to its then current or prospective customers.
“Confidential Information” means any non-public data, information and other materials regarding the products, software, services, prices and discounts, or business of a Party (and/or, if either Party is bound to protect the confidentiality of any third party’s information) provided by a Party, its employees, contractors or affiliates (“Disclosing Party”) to the other Party (“Receiving Party”) where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. The parties agree, without limiting the foregoing, that any performance and security data, product roadmaps, source code, benchmark results, and technical information relating to the Services, including its pricing information, shall be deemed the Confidential Information of TigerText. Notwithstanding the foregoing, Confidential Information shall not include information which: (i) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (ii) becomes publicly available without fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; (iv) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (v) is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure to the extent allowed by applicable law, and reasonably cooperates with the Disclosing Party in limiting such disclosure. Except as expressly authorized herein, the Receiving Party agrees to: (i) use the Confidential Information of the Disclosing Party only to perform hereunder or exercise rights granted to it hereunder; and (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care.
The terms of this Agreement (“Terms”) apply to your use of the Services, including iOS applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
• Both you and TigerText acknowledge that the Terms are concluded between you and TigerText only, and not with Apple, and that Apple is not responsible for the Application or the Content;
• The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
• You will only use the Application in connection with an Apple device that you own or control;
• You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
• In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
• You acknowledge and agree that TigerText, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
• You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, TigerText, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
• You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
• Both you and TigerText acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
• Both you and TigerText acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
You agree to defend, indemnify and hold harmless TigerText, its officers, shareholders, predecessors, successors in interest, directors, employees, agents, subsidiaries, affiliates, licensors and suppliers from and against any and all claims, charges, complaints, damages, losses, liabilities, costs and expenses (including attorneys’ fees) due to, arising out of or relating in any way to your use of, or access to, the Services.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICES, THAT THE FUNCTIONS CONTAINED IN OR PERFORMED BY THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY UPDATE WILL CONTINUE TO BE MADE AVAILABLE, THAT DEFECTS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES WILL BE COMPATIBLE OR WORK WITH ANY THIRD PARTY SERVICES, APPLICATIONS OR THIRD PARTY SERVICES. INSTALLATION OF THIS SERVICES MAY AFFECT THE USABILITY OF THIRD PARTY SERVICES, APPLICATIONS OR THIRD PARTY SERVICES. YOU FURTHER ACKNOWLEDGE THAT THE SERVICES ARE NOT INTENDED OR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAY OF, OR ERRORS OR INACCURACIES IN, THE CONTENT, DATA OR INFORMATION PROVIDED BY THE SERVICES COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR AN APPROVED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION, IF APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
Except where prohibited by law, in no event will TigerText its officers, shareholders, predecessors, successors in interest, directors, employees, agents, subsidiaries, affiliates, licensors and suppliers be liable for any indirect, special, punitive, incidental, exemplary or consequential damages that result from: (1) the use of, or inability to use, the Services; (2) the performance of the Services; or (3) the conduct of other users of the Services, even if TigerText has been advised of the possibility of such damages. You assume total responsibility for your use of the Services. Your only remedy against TigerText for dissatisfaction with the Services is to stop using the Services. If, notwithstanding the terms herein, TigerText is found liable to you for any damage or loss which arises out of or is in any way connected with your use of the Services, TigerText’s liability shall in no event exceed $100 US Dollars. In addition to the forgoing limitations of liability, you agree that you will not join any claim against TigerText with the claim of any other person or entity in a lawsuit, arbitration or other proceeding; that no claim you have against TigerText shall be resolved on a classwide basis; and that you will not assert a claim in a representative capacity against TigerText on behalf of anyone else.
This Agreement constitutes the entire agreement between the parties with respect to the terms and conditions governing your use and access to the Services. This Agreement supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating to the subject matter contained herein. This Agreement prevails over any pre-printed, conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by you. This Agreement may be modified by a “click wrap” or “click accept” agreement that TigerText incorporates into or as a condition of downloading Services after initial delivery. Except as expressly provided herein, this Agreement may be amended, or any term or condition set forth herein waived, only by a writing hand signed by both parties.
The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
Any notice required or permitted to be given in accordance with this Agreement shall be in writing. Notices to TigerText shall be sent by personal delivery, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to: TigerText, Inc., 2110 Broadway, Santa Monica California 90404, U.S.A., Attention: General Counsel. For contractual purposes, you consent to receive communications from TigerText electronically. Notices sent to you shall be sent by personal delivery, electronic mail, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to the address listed on your account. All notices will be deemed given: (i) when delivered personally; (ii) 24 hours after electronic mail is sent, unless TigerText is notified that the email address is invalid; (iii) five (5) days after having been sent by registered or certified mail, (or ten (10) days for international mail; or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery). Either party may change its address for receipt of notice by notice to the other party in accordance with this Section.
The parties agree that a material breach of this Agreement adversely affecting TigerText’s intellectual property rights in the Services or the Confidential Information may cause irreparable injury to TigerText for which monetary damages would not be an adequate remedy and TigerText shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
This Agreement may not be assigned or transferred, in whole or in part, without the other party’s prior written consent, provided TigerText expressly reserves the right to assign this Agreement in its entirety to a successor in interest of all or substantially all of its business or assets. Any action or conduct in violation of the foregoing shall be void and without effect. Subject to the foregoing, all rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns. TigerText may delegate any of its obligations hereunder, provided it shall remain fully liable and responsible for its delegates’ actions or inactions in violation of this Agreement.
This Agreement shall be construed in accordance with the laws of the State of California, without regard to any conflict of law provisions. Any dispute arising under this Agreement shall be resolved exclusively by the state and/or federal courts of the State of California, County of Los Angeles and/or the Central District of California. If a court of competent jurisdiction finds any provision or portion of these terms and conditions unenforceable, the remainder shall continue in full force and effect.