Date Last Revised: February 18, 2013
This Agreement sets forth the terms and conditions that apply to your access and use of the Internet Web site located at www.kixie.com ("Kixie.com"), as owned and operated by Kixie Inc., a Delaware LLC, on behalf of those of its direct or indirect subsidiaries and/or affiliates, (collectively referred to as "Kixie"). By using Kixie.com you agree to be bound by the terms and conditions of this Agreement and Kixie's Privacy and Security Policy, as they may be amended from time to time in the future (see "Modifications" below).
1. Accepting the Terms
By using the information, tools, features and functionality located on Kixie.com (together the "Service"), you agree to be bound by this Agreement, whether you are a "Visitor" (which means that you simply browse the Kixie.com website) or you are a "Member" (which means that you have registered with Kixie.com). The term "you" or "User" refers to a Visitor or a Member. The term "we" refers to Kixie. If you wish to become a Member, communicate with other Members and make use of the Service, you must read this Agreement and indicate your acceptance during the Registration process.
You may not use the Service and you may not accept this Agreement if you are not of a legal age to form a binding contract with Kixie.
If you accept this Agreement, you represent that you have the capacity to be bound by it or if you are acting on behalf of a company or entity that you have the authority to bind such entity. Before you continue, you should print or save a local copy of this Agreement for your records.
2. Privacy and your Personal Information
For information about Kixie's data protection practices, please read Kixie's Privacy and Security Policy, which is hereby incorporated into this Agreement. This policy explains how Kixie treats your personal information when you access Kixie.com and use the Service. The policy may be updated from time to time at our discretion. Changes will be effective upon posting to the site.
3. Description of the Service
The Service is a business information management service that allows Members to consolidate and track their phone calls on Kixie.com. Based on such information, the Service may also present information relating to third party products or services.
The Service is meant as an aid to assist you in organizing and managing your phone calls.
4. Account Information from Third Party Sites
With the Service, Members may direct Kixie to retrieve their own information maintained online by third-party financial institutions with which they have customer relationships, maintain accounts or engage in financial transactions ("Account Information"). Kixie works with one or more online financial service providers under contract to access this Account Information. Kixie makes no effort to review the Account Information for any purpose, including but not limited to accuracy, legality or non-infringement. Kixie is not responsible for the products and services offered by or on third-party sites.
Kixie cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalization settings or other service interruptions. Kixie cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalization settings. For example, when displayed through the Service, Account Information is only as fresh as the time shown, which reflects when the information is obtained from such sites. Such information may be more up-to-date when obtained directly from the relevant sites. You can refresh your Account Information through the Service, in the manner prescribed in the associated instructions.
5. Third-Party Links
Some parts of the Service are supported by sponsored links from advertisers and display Kixie Offers that may be custom matched to you based on information stored in the Service, queries made through the Service or other information. We will always disclose when a particular Kixie Offer is sponsored.
In connection with Kixie Offers, the Service will provide links to other web sites belonging to Kixie advertisers and other third parties. Kixie does not endorse, warrant or guarantee the products or services available through the Kixie Offers (or any other third-party products or services advertised on or linked from our site), whether or not sponsored, and Kixie is not an agent or broker or otherwise responsible for the activities or policies of those web sites.
6. Your Registration Information
You agree and understand that you are responsible for maintaining the confidentiality of your password which, together with your LoginID e-mail address, allows you to access the Service. That Login ID and password, together with any mobile number or other contact information you provide form your "Registration Information."
By providing us with your e-mail address, you agree to receive all required notices electronically, to that e-mail address. It is your responsibility to update or change that address, as appropriate. Notices will be provided in HTML (or, if your system does not support HTML, in plain-text) in the text of the e-mail or through a link to the appropriate page on our site, accessible through any standard, commercially available internet browser.
If you become aware of any unauthorized use of your Registration Information, you agree to notify Kixie immediately at the email address - email@example.com.
7. Your Use of the Service
Your right to access and use Kixie.com and the Service is personal to you and is not transferable by you to any other person or entity. You are only entitled to access and use Kixie.com for lawful purposes.
Accurate records enable Kixie to provide the Service to you. You must provide true, accurate, current and complete information about your accounts maintained at other web sites, as requested in our "add account" setup forms, and you may not misrepresent your Registration Information. In order for the Service to function effectively, you must also keep your Registration Information up to date and accurate. If you do not do this, the accuracy and effectiveness of the Service to you will be affected.
Your access and use of Kixie.com may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of Kixie.com or other actions that Kixie, in its sole discretion, may elect to take.
8. The Service
The Services consist of one or more of the following: a web-based interface, access to incoming telephone number or keywords, Direct Inward Dialing Numbers ("DIDs"), messaging applications, voice broadcast applications, SMS gateway access, data encryption, data transmission, data access, data storage and, if applicable, synchronization software, as well as software maintenance and upgrades and customer support, that enable you to send text messages and/or voice broadcasts to recipients designated by you (collectively, the "Services"). We provide MT outbound messages through different routes, and the level of reliability and support for special features varies according to the route. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Services, and for paying all access charges (e.g. ISP, telecommunications) incurred while using the Services.
Kixie only provides that the Services are processed correctly and delivered by Kixie to the applicable network. Kixie is not responsible for the final delivery of any communication initiated through Kixie's Services, as this is out of our control and is the responsibility of the communications carrier.
Kixie transmits and receives text messages via major telecommunications companies and mobile network operators, and thus Kixie's influence over the timing of the transmission of your messages and broadcasts is within the technical constraints imposed upon Kixie. While Kixie shall use commercially reasonable efforts to transmit your messages and broadcasts to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transportation of your messages and broadcasts across the public switched telephone network and/or Internet. You should know that communications carriers assign text messages and voice broadcasts with a default lifetime and any message or broadcast that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. Kixie is not liable for any loss incurred by the failure of a message or broadcast to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from Kixie for any such non-deliveries. Furthermore, you agree that message and broadcast contents are deemed to have zero value.
9. Usage Policy
You represent and warrant that the owners of the phone numbers you provide to Kixie, to which outbound messages and broadcasts are transmitted through the Services, have consented or otherwise opted-in to the receipt of such messages and broadcasts. You agree that you will include clear opt-out/unsubscribe information on at least every fifth text message you send through Kixie's Services and otherwise adhere to the Consumer Best Practices Guidelines promulgated by the Mobile Marketing Association. You further agree that any individual requesting "Do-Not-Call" ("DNC") status shall immediately be placed on your DNC accounts list and removed from your list of approved contacts used with the Kixie Services and Kixie.com.
You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages and broadcasts transmitted through the Kixie Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the Kixie Services by visiting the following websites:
Federal Trade Commission, http://www.ftc.gov
Federal Communications Commission, http://www.fcc.gov
DoNotCall Registry Info, http://www.donotcall.gov
The Telephone Consumer Protection Act ("TCPA"), the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages. Kixie is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages, broadcasts and campaigns prior to using Kixie.com or Services. You are ultimately responsible to make your own informed decisions regarding your messages, broadcasts, and campaigns.
You shall send campaigns responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, for inclusion in any outbound messages, broadcasts, and campaigns. If you are unfamiliar or unclear on the legalities of any message, broadcast or campaign, you must consult with your attorney prior to your use of Kixie.com or Services.
You accept that the Services are provided for professional use only, and you agree that your use of Kixie.com or Services shall not include:
You agree to provide legal contact information in any outbound campaign within the initial greeting message. You further agree that Kixie is, under no circumstances, responsible for the contents and/or accuracy of your messages or broadcasts and Kixie will only transmit them on a basis of good faith that you use the Services in accordance with these Terms. Kixie will not be liable for any misuse of the Services by you. Kixie is not responsible for the views and opinions contained in any of your messages or broadcasts.
You warrant and represent to Kixie that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in these Terms or in the performance of such obligations will place you in breach of any other contract or obligation. You further warrant and represent that you are and shall at all times remain in full compliance with all applicable laws, rules and regulations with regard to your use of Kixie.com and Services, including without limitation the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, and all other laws and regulations concerning privacy, telemarketing, and Internet marketing.
You agree to indemnify and hold harmless Kixie and its affiliates and each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, disbursements and attorneys' fees, including attorneys' fees incurred from counsel selected by Kixie in its sole discretion) arising from or relating to any actual or threatened claim, suit, action, proceeding, governmental investigation or enforcement action based upon or arising out of: (i) your breach of the above warranties; or (ii) any use by you, or an account or computer owned by you, of Kixie.com or Services. You agree to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, but we reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you. You acknowledge and agree to be held liable for any and all damages caused to Kixie by you as a direct result of a violation of local, state, national or international laws and regulations, including but are not limited to those damages that may arise from your fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by Kixie to you.
11. Online and Mobile Alerts
Kixie may from time to time provide automatic alerts and voluntary account-related alerts.
Automatic alerts may be sent to you following certain changes made online to your Kixie account, such as a change in your Registration Information.
Voluntary account alerts may be turned on by default as part of the Service. They may then be customized, deactivated or reactivated by you. These alerts allow you to choose alert messages for your accounts. Kixie may add new alerts from time to time, or cease to provide certain alerts at any time upon its sole discretion. Each alert has different options available, and you may be asked to select from among these options upon activation of your alerts service.
Electronic alerts will be sent to the email address you have provided as your primary email address for Kixie.com. If your email address or your mobile device's email address changes, you are responsible for informing us of that change. You can also choose to have alerts sent to a mobile device that accepts text messages. Changes to your email address or mobile number will apply to all of your alerts.
Because alerts are not encrypted, we will never include your passcode. However, alerts may include your Kixie.com Login ID and some information about your accounts. Anyone with access to your email will be able to view the content of these alerts. At any time you may disable future alerts.
12. Rights You Grant to Us
By submitting information, data, passwords, usernames, PINs, other log-in information, materials and other content to Kixie through the Service, you are licensing that content to Kixie solely for the purpose of providing the Service. Kixie may use and store the content, but only to provide the Service to you. By submitting this content to Kixie, you represent that you are entitled to submit it to Kixie for use for this purpose, without any obligation by Kixie to pay any fees or other limitations.
By using the Service, you expressly authorize Kixie to access your Account Information maintained by identified third parties, on your behalf as your agent. When you use the "Add Accounts" feature of the Service, you will be directly connected to the website for the third party you have identified. Kixie will submit information including usernames and passwords that you provide to log you into the site. You hereby authorize and permit Kixie to use and store information submitted by you to the Service (such as account passwords and user names) to accomplish the foregoing and to configure the Service so that it is compatible with the third party sites for which you submit your information. For purposes of this Agreement and solely to provide the Account Information to you as part of the Service, you grant Kixie a limited power of attorney, and appoint Kixie as your attorney-in-fact and agent, to access third party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN KIXIE IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, KIXIE IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. You understand and agree that the Service is not sponsored or endorsed by any third parties accessible through the Service.
13. Kixie's Intellectual Property Rights
The contents of Kixie.com, including its "look and feel" (e.g., text, graphics, images, logos and button icons), photographs, editorial content, notices, software (including html-based computer programs) and other material are protected under both United States and other applicable copyright, trademark and other laws. The contents of Kixie.com belong or are licensed to Kixie or its software or content suppliers. Kixie grants you the right to view and use Kixie.com subject to these terms. You may download or print a copy of information provided on Kixie.com for your personal, internal and non-commercial use only. Any distribution, reprint or electronic reproduction of any content from Kixie.com in whole or in part for any other purpose is expressly prohibited without our prior written consent.
14. Access and Interference
You agree that you will not:
- Use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor Kixie.com or any portion of Kixie.com, without Kixie's express written consent, which may be withheld in Kixie's sole discretion;
- Use or attempt to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search Kixie.com, other than the search engines and search agents available through the Service and other than generally available third-party web browsers (such as Microsoft Explorer);
- Post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise interfere with the proper working of Kixie.com or the Service; or
- Attempt to decipher, decompile, disassemble, or reverse-engineer any of the software comprising or in any way making up a part of Kixie.com or the Service.
15. Rules for Posting
As part of the Service, Kixie allows Members to post content on bulletin boards, blogs and at various other publicly available locations on Kixie.com. These forums may be hosted by Kixie or by one of our third party service providers on Kixie's behalf. You agree in posting content to follow certain rules.
- You are responsible for all content you submit to Kixie.com.
- By submitting content to us, you represent that you have all necessary rights and hereby grant us a perpetual, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, modify, display, and perform all or any portion of the content in connection with Kixie.com and our business, including without limitation for promoting and redistributing part or all of the site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each User a non-exclusive license to access your posted content through Kixie.com, and to use, reproduce, distribute, prepare derivative works of, display and perform such content as permitted through the functionality of Kixie.com and under this Agreement.
- You may not post or transmit any message which is libelous or defamatory, or which discloses private or personal matters concerning any person. You may not post or transmit any message, data, image or program that is indecent, obscene, pornographic, harassing, threatening, abusive, hateful, racially or ethnically offensive; that encourages conduct that would be considered a criminal offense, give rise to civil liability or violate any law; or that is otherwise inappropriate.
- You may not post or transmit any message, data, image or program that would violate the property rights of others, including unauthorized copyrighted text, images or programs, trade secrets or other confidential proprietary information, and trademarks or service marks used in an infringing fashion.
- You may not interfere with other Users' use of the Service, including, without limitation, disrupting the normal flow of dialogue in an interactive area of Kixie.com, deleting or revising any content posted by another person or entity, or taking any action that imposes a disproportionate burden on the Service infrastructure or that negatively affects the availability of the Service to others.
- Except where expressly permitted, you may not post or transmit charity requests; petitions for signatures; franchises, distributorship, sales representative agency arrangements, or other business opportunities (including offers of employment or contracting arrangements); club memberships; chain letters; or letters relating to pyramid schemes. You may not post or transmit any advertising, promotional materials or any other solicitation of other users to use goods or services except in those areas (e.g., a classified bulletin board) that are designated for such purpose.
- You agree that any employment or other relationship you form or attempt to form with an employer, employee, or contractor whom you contact through areas of Kixie.com that may be designated for that purpose is between you and that employer, employee, or contractor alone, and not with us.
- You may not copy or use personal identifying or business contact information about other Users without their permission. Unsolicited e-mails, mailings, telephone calls, or other communications to individuals or companies whose contact details you obtain through the Service are prohibited.
- You agree that we may use any feedback, suggestions, or ideas you post in any way, including in future modifications of the Service, other products or services, advertising or marketing materials. You grant us a perpetual, worldwide, fully transferable, sublicensable, non-revocable, fully paid-up, royalty free license to use the feedback you provide to us in any way.
16. Disclaimer of Representations and Warranties
THE CONTENT AND ALL SERVICES AND PRODUCTS ASSOCIATED WITH KIXIE.COM OR PROVIDED THROUGH THE SERVICE (WHETHER OR NOT SPONSORED) ARE PROVIDED TO YOU ON AN "AS-IS" AND "AS AVAILABLE" BASIS. KIXIE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION OF KIXIE.COM OR OF THE SERVICE. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK.
KIXIE MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY OR COMPLETENESS OF THE CONTENT ON KIXIE.COM OR OF THE SERVICE (WHETHER OR NOT SPONSORED), AND EXPRESSLY DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. KIXIE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE SERVICE IS FREE OF INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION.
17. Alert Disclaimer
You understand and agree that any alerts provided to you through the Service may be delayed or prevented by a variety of factors. Kixie does its best to provide alerts in a timely manner with accurate information. However, we neither guarantee the delivery nor the accuracy of the content of any alert. You also agree that Kixie shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.
18. Limitations on Kixie's Liability
KIXIE SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFIT, REVENUE OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO KIXIE.COM, YOUR USE OF THE SERVICE OR THIS AGREEMENT, EVEN IF KIXIE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, KIXIE'S LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO $500.00 (FIVE HUNDRED UNITED STATES DOLLARS).
19. Your Indemnification of Kixie
You shall defend, indemnify and hold harmless Kixie and its officers, directors, shareholders, and employees, from and against all claims and expenses, including but not limited to attorneys fees, in whole or in part arising out of or attributable to any breach of this Agreement by you.
20. Ending your relationship with Kixie
This Agreement will continue to apply until terminated by either you or Kixie as set out below. If you want to terminate your legal agreement with Kixie, you may do so by closing your account for the Service. Please use the directions below to cancel your account:
- Login to your Kixie.com account.
- Go to "Your Profile".
- Locate the "delete Kixie account" option under "More Options".
- Type in "delete" where prompted.
- Enter in the password for your Kixie.com account.
- Press "Yes"
Kixie may at any time, terminate its legal agreement with you:
- if you have breached any provision of this Agreement (or have acted in a manner which clearly shows that you do not intend to, or are unable to comply with the provisions of this Agreement);
- if Kixie in its sole discretion believes it is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); or
- immediately upon notice, to the e-mail address provided by you as part of your Registration Information.
Kixie may modify this Agreement from time to time. Any and all changes to this Agreement will be posted on the Kixie.com site. In addition, the Agreement will always indicate the date it was last revised. You are deemed to accept and agree to be bound by any changes to the Agreement when you use the Service after those changes are posted.
22. Governing Law and Forum for Disputes
This Agreement, and your relationship with Kixie under this Agreement, shall be governed by the laws of the State of California without regard to its conflict or choice of laws provisions. Any dispute with Kixie, or its officers, directors, employees, agents or affiliates, arising under or in relation to this Agreement shall be resolved exclusively through the small-claims court of the Superior Court of California within the county of Santa Clara, California, except with respect to imminent harm requiring temporary or preliminary injunctive relief in which case Kixie may seek such relief in any court with jurisdiction over the parties. You understand that, in return for agreement to this provision, Kixie is able to offer the Service at the terms designated, without charge to you, and that your assent to this provision is an indispensable consideration to this Agreement.
You also acknowledge and understand that, with respect to any dispute with Kixie, its officers, directors, employees, agents or affiliates, arising out of or relating to your use of the Service or this Agreement:
- YOU ARE GIVING UP YOUR RIGHT TO HAVE A TRIAL BY JURY; and
- YOU ARE GIVING UP YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT INVOLVING ANY SUCH DISPUTE.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
You agree that if Kixie does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which Kixie has the benefit of under any applicable law), this will not be taken to be a formal waiver of Kixie's rights and that those rights or remedies will still be available to Kixie.
All covenants, agreements, representations and warranties made in this Agreement shall survive your acceptance of this Agreement and the termination of this Agreement.
This Agreement represents the entire understanding and agreement between you and Kixie regarding the subject matter of the same, and supersedes all other previous agreements.