Terms of Service
Last Updated on November 27, 2019
These Terms of Service (“Terms”) govern your use of the services provided by FunnelGuard Inc. (“we”, “us”, “our”, or “Company”), including without limitation our website, mobile or web applications, or other digital products that link to or reference these Terms (collectively, the “Services”). These Terms are a binding legal agreement between you or the entity you represent (“you”) and Company. In these Terms, “you” and “your” refer to you, a user of the Services. A “user” is you or anyone who accesses, browses, or in any way uses the Services.
Please be aware that these Terms include, among other things, a binding arbitration provision that requires you to submit to binding and final arbitration on an individual basis to resolve disputes, rather than jury trials or class actions. Please see Section 13, below.
Please read these Terms carefully, as they may have changed. Though your access and use of the Services is governed by the Terms effective at the time, please note that we may revise and update these Terms from time to time in our discretion. If we make material changes to these Terms, we will notify you by email or by posting a notice on our website prior to the effective date of the changes. These Terms are to ensure that you will use the Services only in the ways in which we intend for it to be used.
IMPORTANT: SUBSCRIPTIONS AUTOMATICALLY RENEW
We may, either after an initial free trial period or at the beginning of your access to the Services, bill you for an automatically-renewing subscription term for your use and access of the Services or part thereof (”Paid Services”).
● The Paid Services will automatically renew until you cancel them. We will continue to bill you until you affirmatively cancel the Paid Services.
● You can cancel the Paid Services whenever you want. To cancel, email firstname.lastname@example.org. Cancelling will end the automatic renewals of your Paid Services, but we will keep any Fees we have already collected from you (unless we are required by law to refund them).
● We will disclose the duration and cost of the Paid Services before you purchase the Paid Services and will confirm the duration and the cost of the Paid Services via email following your purchase.
● BY USING OR ACCESSING THE PAID SERVICES, YOU ARE AGREEING TO BE BOUND BY THESE USER TERMS.
By accessing or using the Services:
(a) You acknowledge that you have read, understood, and accept these Terms and any additional documents or policies referred to in or incorporated into these Terms, whether you are participating as a guest or as a registered user;
(b) If these Terms have materially changed since you last access or used the Services, you acknowledge and agree that your continued access or use of the Services constitutes your acceptance of the changed Terms;
(c) You represent and warrant that you are at least eighteen (18) years of age and have the right, authority, and capacity to enter into these Terms, either on behalf of yourself or the entity that you represent; and
(d) You consent to receive communications from us electronically, and you agree that such electronic communications, notices, and postings satisfy any legal requirements that such communications be in writing.
1. Accessing the Site.
We grant you permission to access and use the Services subject to the restrictions set out in these Terms. It is a condition of your use of the Services that the information you provide is correct, current, and complete. Your use of the Services is at your own risk, including the risk that you may be exposed to content that is offensive, indecent, inaccurate, objectionable, or otherwise incongruous. You are responsible for making all arrangements necessary for you to have access to the Services. We may close your account, suspend your ability to use certain portions of the Services, and/or ban you altogether from the Services for any or no reason, and without notice or liability of any kind. You are responsible for ensuring access to the Services, and that access may involve third-party fees (such as Internet service provider or airtime charges) and obtaining and maintaining all equipment necessary to access the Services.
Special Access and Testing. If you are invited or clearly provided with access to beta testing new tools and resources, which are not made available to our users broadly (“closed beta”), you should not rely on, nor expect, the continued availability of these new tools and resources. Any such access to beta test new tools and resources, if any, is conditioned upon your agreement not to disclose any information about these new tools and resources or your experience with using them to third parties.
2. Account Registration and Account Security.
Once you have an account, you are responsible for all activities that occur in connection with your account. You will treat as confidential your account access credentials and will not disclose it to any third-party. You agree to immediately notify us if you have any reason to believe that your account credentials have been compromised or if there is any unauthorized use of your account or password, or any other breach of security. We ask that you use particular caution when accessing your profile from a public or shared computer, or when using your account in a public space, such as a park or cafe or public library, so that others are not able to view or record your access credentials or other personal information.
You may not impersonate someone else to create an account, create or use an account for anyone other than yourself, permit anyone else to use your account, or provide personal information for purposes of account registration other than your own. In order to ensure we can protect and properly administer the Services and our community of users, we have the right to disable or close any user account at any time and for any reason or for no reason.
3. Prohibited Uses.
You may use the Services only for lawful purposes and in accordance with these Terms. We are under no obligation to enforce the Terms on your behalf against another user. We encourage you to let us know if you believe another user has violated the Terms or otherwise engaged in prohibited or illegal conduct.
You agree not to, and will not assist, encourage, or enable others to use the Services:
- For any commercial purpose, except as expressly permitted under these Terms.
- To violate any applicable national, regional, federal, state, local, or international law or regulation.
- To create, send, knowingly receive, display, transmit, upload, download, use, or reuse any material which:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, or otherwise objectionable;
- Infringe any patent, trademark, trade secret, copyright, or other intellectual property rights of any other person;
- Be likely to evade or confuse any person.
Additionally, you agree not to, and will not assist, encourage, or enable others to:
- Violate these Terms.
- Reverse engineer any portion of the Services.
- Modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, blatantly display, sell, trade, or in any way exploit the Services, except as expressly authorized by Company.
- Remove or modify any copyright, trademark, or other proprietary rights notice that appears on any portion of the Services or on any materials printed or copied from the Services.
- Record, process, harvest, collect, or mine information about other users.
- Access, retrieve, or index any portion of the Services for purposes of constructing or populating a searchable database.
- Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose.
- Use the Services to transmit any computer viruses, worms, defects, Trojan horses, or other items of a destructive nature (collectively, “Viruses”).
- Use the Services to violate the security of any computer network, crack passwords or security encryption codes.
- Remove, evade, disable, damage, or otherwise interfere with any security-related features or other restrictions of the Services.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer, or database connected to the Services.
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Services.
The restrictions above only apply to the extent permissible under applicable law. Nevertheless, you agree not to act contrary to them (even if permissible under applicable law) without providing thirty (30) days’ prior written notice to us email@example.com, together with any information that we may reasonably require to give us an opportunity to provide alternative remedies or otherwise accommodate you at our sole discretion.
4. IP Ownership.
We own the Services and all of our trademarks, logos, branding, and any other Content that we create in connection with the Services (“Company Content”), including proprietary rights of every kind and nature however denominated throughout the world, registered or unregistered, associated with such Company Content and the Services (collectively, “Company IP”). Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Company IP are retained by us.
We are not responsible or liable to any third-party for the content or accuracy of any materials posted by you or any other user of the Services. You understand that when using the Services, you will be exposed to text, images, photos, audio, video, location data, and all other forms of data or communication (“Content”) from a variety of sources, and that Company is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. We do not endorse any Content made available through the Services by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with such Content.
f you purchase additional features or functionalities within the Services (“Purchases”), you represent and warrant that all information you provide in connection with a Purchase is true and accurate. Company is not responsible for fulfilling any Purchases for which you provided information that is deceptive or incomplete, as determined by Company.
Payment; Fees. We may charge you a fee for the Purchases (an “Additional Fee”) and a subscription fee for the Paid Services (a “Subscription Fee”, together with Additional Fees, the “Fees”). The price you pay for specific Purchases and/or Paid Services will be the prices published at https://www.funnelguard.co/pricing, unless otherwise agreed to by the Company and you. A Subscription Fee will first be charged either at the expiration of your free trial period (if any) or when you register for a User Account, unless otherwise specified. If Company chooses to bill through invoice, you shall pay the amounts set forth on the applicable invoice within 30 days of the invoice receipt date. Unpaid invoices are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. Your ability to access the Paid Services begins on the date you first pay the Subscription Fee and applicable taxes (if any) and continues on an annual or month-to-month basis, depending on the Paid Services you have purchased. We will automatically renew your access to the Paid Services by charging the Subscription Fee plus any applicable taxes to the payment method you provided to us. For any recurring payments, you hereby authorize Company to bill your payment instrument in advance of each billing cycle until you terminate your account, and you shall pay any charges so incurred.
a. Opt-Out. Unless you affirmatively opt out of automatic renewal, you hereby authorize us to renew or begin the Paid Services automatically at the end of each month or each year, depending on the Paid Services you have purchased. If you opt out of automatic renewal, your access to the Paid Services will terminate at the end of the month or the year, as applicable, in which you opt out. You must maintain accurate and up-to-date payment information. We assume no responsibility or liability if your access to the Paid Services fails to renew or otherwise expires because of outdated or incorrect payment information.
b. Opt-In. In the event the Upgrade Event is triggered for certain types of the Paid Services, you will have 30 days from the date of the Upgrade Event to opt in to pay the Upgrade Fee. In the event you do not opt in for the Upgrade Fee within 30 days, your Services will be discontinued.
c. Cancellation. You may cancel the Paid Services at any point by emailing firstname.lastname@example.org unless otherwise agreed to by the Company and you. If you cancel the Paid Services, your access to the Paid Services will continue until the last day of the month or the year, as applicable, depending on the Paid Services you have purchased, in which you cancelled, at which point it will expire. Purchase and/or redemption of the Paid Services is final and non-refundable; if you cancel or opt out, we will not issue you any refund, including partial or pro-rated refunds, unless required to do so by law.
d. Changes. We reserve the right to modify, offer additional, or cease offering the Paid Services at any time in our sole discretion, including but not limited to changes in Subscription Fees, modifying the availability of, and eligibility requirements for, certain Paid Services, or modifying the features and functionality of certain Paid Services. We will provide you with thirty (30) days prior notice via email before changes in Subscription Fees take effect. Any changes to the Subscription Fees will be effective upon your next billing cycle, and will not apply retroactively or to the remainder of your current month or year, as applicable. In the event we do migrate you to different Paid Services, or modify the Subscription Fee, you may opt out of these changes by disabling auto-renewal of the Paid Services or cancelling the Paid Services by emailing email@example.com, but we will not issue you any refund, including partial or pro-rated refunds, unless required to do so by law.
6. Links to other Sites.
If there are other websites and resources linked to on the Services, these links are provided only for the convenience of our users. We have no control over the contents of those websites or resources, and therefore cannot accept responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Services, you do so entirely at your own risk and subject to the Terms and conditions of use for such websites.
7. No Guarantee of Service.
Although we hope to make the Services available at all times in the future, there may be times when we need to disable the Site either temporarily or permanently. The Services may be modified, updated, interrupted, suspended, or discontinued at any time without notice or liability. Keep this in mind as Company will not be liable if all or any part of the Services is unavailable at any time, for any period of time. Also, from time to time, we may restrict access to some parts of the Services, or the entire Services, to users, including registered users. We cannot and do not make any representations or warranties with respect to the devices you use to access or use the Services, including with respect to device compatibility.
8. Disclaimer of Warranties.
COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU FURTHER WAIVE AND HOLD HARMLESS COMPANY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY COMPANY DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER COMPANY OR LAW ENFORCEMENT AUTHORITIES.
IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE, THEN THE FOLLOWING APPLIES. FOR EXAMPLE, (1) CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY" AND (2) NEW JERSEY RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF THE TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT (X) SECTIONS 15, WHICH STATES, AMONG OTHER THINGS, THAT “NO SELLERS…SHALL IN THE COURSE OF HIS BUSINESS OFFER TO ANY CONSUMER OR PROSPECTIVE CONSUMER OR ENTER INTO ANY WRITTEN CONSUMER CONTRACT OR GIVE OR DISPLAY ANY WRITTEN CONSUMER WARRANTY, NOTICE OR SIGN…WHICH INCLUDES ANY PROVISION THAT VIOLATES ANY CLEARLY ESTABLISHED LEGAL RIGHT OF A CONSUMER OR RESPONSIBILITY OF A SELLER…” AND (X) SECTION 16, WHICH STATES, AMONG OTHER THINGS, THAT “…NO CONSUMER CONTRACT, NOTICE OR SIGN SHALL STATE THAT ANY OF ITS PROVISIONS IS OR MAY BE VOID, UNENFORCEABLE OR INAPPLICABLE IN SOME JURISDICTIONS WITHOUT SPECIFYING WHICH PROVISIONS ARE OR ARE NOT VOID, UNENFORCEABLE OR INAPPLICABLE WITHIN THE STATE OF NEW JERSEY…”. YOU HEREBY WAIVE, AS APPLICABLE, THESE SECTIONS OF THE CALIFORNIA CIVIL CODE AND NEW JERSEY TRUTH IN CONSUMER CONTRACT, WARRANTY, AND NOTICE ACT. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED PROVISIONS.
9. Limit of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR SERVICES, ON ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT INCLUDING NEGLIGENCE, OR HOWSOEVER OTHERWISE) ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THE SERVICES. COMPANY’S AGGREGATE LIABILITY UNDER THESE TERMS SHALL BE LIMITED TO FEES ACTUALLY PAID BY YOU IN CONNECTION WITH THE SERVICES IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED U.S. DOLLARS ($100). THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
You shall indemnify and hold harmless Company, its affiliates and licensors and their respective officers, directors, employees, contractors, agents, licensors and suppliers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) resulting from your violation of these Terms or your use of the Services.
11. Governing Law.
This Agreement shall be governed by the laws of the State of California, without respect to its disputes of laws principles. You agree to submit to the personal jurisdiction of the federal and state courts located in San Francisco County, California.
12. Arbitration and Class Action Waiver.
a. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM COMPANY. For any dispute with Company, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Company has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or disputes (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in San Francisco County, California, unless you and Company agree otherwise. If you are using the Services for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
b. Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND
13. General Terms.
These Terms constitute the sole and entire agreement between you and Company with respect to the Services and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services. No waiver of these Terms by Company shall be deemed a further or continuing waiver of such term or condition or any other term or condition, and any failure of Company to assert a right or provision under these Terms shall not constitute a waiver of such right or provision. If any provision of these Terms is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be modified to reflect the parties’ intention or eliminated to the minimum extent such that the remaining provisions of the Terms will continue in full force and effect. The Terms, and any rights or obligations hereunder, are not assignable, transferable, or sublicensable by you except with Company’s prior written consent, but may be assigned or transferred by us without restriction. Any attempted assignment by you shall violate these Terms and be void. The section titles in the Terms are for convenience only and have no legal or contractual effect.
All feedback, comments, requests for technical support, and other communications relating to the Services, including any request for modification to user account or advertising channel, should be directed to: email@example.com. By sending us any ideas, suggestions, documents or proposals (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third-parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development that is owned by us, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute and sublicense the Feedback, and you irrevocably waive, and cause to be waived, against Company and its users any claims and assertions of any moral rights contained in such Feedback.
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