LoopMessage Server – Terms of Use

These Terms of Use constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“you”) and Deliany LLC (“Company“, “we”, “us”, orour”), concerning your access to and use of the loopmessage.com website and products published on this website as well as any other media form, media channel, mobile website or mobile application related, linked, or otherwise connected thereto (collectively, the “Site”). By registering an account and obtaining access to using LoopMessage Server Service or App or SaaS, you have read, understood, and agree to be bound by all of these Terms of Use. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS OF USE, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICE AND YOU MUST DISCONTINUE USE IMMEDIATELY.

Supplemental terms and conditions or documents that may be posted on the Site from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms of Use from time to time. We will alert you about any changes by updating the “Last updated” date of these Terms of Use, and you waive any right to receive specific notice of each such change. Please ensure that you check the applicable Terms every time you use our Site so that you understand which Terms apply. You will be subject to, and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms of Use by your continued use of the Site after the date such revised Terms of Use are posted.

The information provided on the Site is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, those persons who choose to access the Site or Services from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.

The Service or Site is not tailored to comply with industry-specific regulations (Health Insurance Portability and Accountability Act (HIPAA), Federal Information Security Management Act (FISMA), etc.), so if your interactions would be subjected to such laws, you may not use this Service or Site. You may not use the Service or Site in a way that would violate the Gramm- Leach-Bliley Act (GLBA).

The Site is intended for users who are at least 18 years old. Persons under the age of 18 are not permitted to use our services or this Site.

INTELLECTUAL PROPERTY RIGHTS

Unless otherwise indicated, the Website, Service (SaaS), Apps is our proprietary property and all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics on the Website (collectively, the “Content”) and the trademarks, service marks, and logos contained therein (the “Marks”) are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, international copyright laws, and international conventions. The Content and the Marks are provided on the Site “AS IS” for your information and personal use only. Except as expressly provided in these Terms of Use, no part of the Site and no Content or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.

Provided that you are eligible to use the Site, our services, or API, you are granted a limited access and use the Site, Services, API, or App, and to download or print a copy of any portion of the Content to which you have properly gained access solely for your personal, non-commercial use. We reserve all rights not expressly granted to you in and to the Site, Services, API, App, the Content, and the Marks.

USER REPRESENTATIONS

By using the services and site, you represent and warrant that: (1) all registration information you submit will be true, accurate, current, and complete; (2) you will maintain the accuracy of such information and promptly update such registration information as necessary; (3) you have the legal capacity and you agree to comply with these Terms of Use; (4) you are not a minor in the jurisdiction in which you reside; (5) you will not abuse the service or API through automated or non-human means, whether through a bot, script or otherwise for sending spam, scam messages, fakes, tricks, or illegal content; (6) you will not use the service or API for any illegal or unauthorized purpose; and (7) your use of the service or API will not violate any applicable law or regulation. (8) you have the right to use the name of the company or brand as the name of the sender and will be able to provide proofs.

If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your account, or license, and refuse any and all current or future access to use the Site, Service, App, SaaS (or any portion thereof).

USER REGISTRATION, TOKENs, AND API ACCESS

Your personal account may be registered on the Site and our Database for using our services. You agree to keep your password, cookies, authorization key, access tokens, and API keys confidential and will be responsible for all use of your account. You, NOT Deliany LLC (or their team of employees, as well as its agents Deliany LLC and payment processors which cooperate with Deliany LLC), are responsible for ensuring the security of your credentials related to your account.

If we have any doubts about your identity or company, we can initiate a KYC procedure to exclude any attempt to violate the described here terms of use. In this case, we may require you to provide documents and proof that confirm your personal data or payment data.

We reserve the right to remove, reclaim, or change a username or sender name you select if we determine, in our sole discretion, that such username is inappropriate, obscene, illegal, violates the right to use a trademark, copyright, intellectual property, or otherwise objectionable. As well in case of receiving a complaint about a violation or abuse of a trademark, copyright, intellectual property, or an injunction against to use.

FEES AND PAYMENT

We accept the following forms of payment:

– Cards (including Mastercard, Visa, Maestro, American Express, Discover, Diners Club, JCB, UnionPay, and Mada)
– PayPal
– Wire Transfer (ACH, Swift, SEPA – supported only for certain currencies)

You may be required to purchase or pay a fee to access some of our services. You agree to provide current, complete, and accurate purchase and account information for all purchases made via the Site, Dashboard, or Invoice. Purchases that are made on our website are handled by the merchant of record (MoR) “Paddle” and are not stored or processed on our servers. By making a purchase, you must also agree to the Paddle Buyer Terms and Conditions. You further agree to promptly update account and payment information, including email address, payment method, and payment card expiration date, so that the payment processor can complete your transactions and contact you as needed. We bill you through an online billing account for purchases made via the Site. VAT, GTS, or sales taxes may be added to the price of purchases as deemed required by the country where you are located. Our payment processor “Paddle” handles Tax compliance for all countries where required. You can check details regarding Tax charges for your country on their website. We may change prices at any time. All payments shall be in U.S. dollars, Euros, or British pounds. Prices may be various for different currencies and countries.

You agree to pay all charges or fees, taxes, VAT, GST at the prices then in effect for your purchases, and you authorize us to charge your chosen payment method for any such amounts upon making your purchase. If your purchase is subject to recurring charges, then you consent to our charging your payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation.

We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any order placed through the Site, our agents, or affiliates.

Recurring payments

Some of our services are provided on a subscription model (recurring payments), such as Sender Name, Enterprise Plans, etc. You will receive an invoice from us 10-15 days before your next billing period. During this period, you must make a payment through one of the payment methods described here, otherwise the service will expire. If you have attached a payment method to your account, it will be used to automatically pay for the service one day before the date of the next payment period.

You can cancel your subscriptions or delete your attached payment method at any time by logging into your account or contacting us using the contact information provided below or contacting the Paddle payment gateway. Your cancellation will take effect at the end of the current paid term.

Canceling a subscription will not retroactively refund payments, and previously charged subscription fees cannot be pro-rated based on the cancellation date. If you cancel an existing subscription and decide to subscribe again later, you will be charged the most recent price.

You, NOT Deliany LLC (or our officers, agents, payment processors, partners, and employees), are responsible for canceling your subscription before stop using our services or API or when the trial period ends (if available). And you agree that all refund requests will be rejected if you forgot or ignored to cancel your subscription after uninstalling the app or when the trial period is ended.

If you ask support to cancel your recurring payments we will ask you to confirm your request by email or other types of communication. Only after confirming your subscription will be canceled. This is to prevent abuse in which a third party may try to introduce themselves as you, especially when contact person email or any other personal data may be different from your payment info.

If you are unsatisfied with our services, please email us at [email protected] or write a request to the support chat.

PROHIBITED ACTIVITIES

You may not access or use the Site/Service/App/SaaS/API (hereinafter referred to as Services) for any purpose other than that for which we make it available. The site or any of our services may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us. Our service aimed to send only high-quality texts to recipients who expect to hear from you.

As a user of our Services, you agree not to:

1. Systematically retrieve data or other content from the Site, Services, or Apps to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from us.

2. Trick, defraud, or mislead us, other users, and text recipients, especially in any attempt to learn sensitive account or license information such as user passwords, tokens, API keys, cookie files, or any other type of data aimed to get unwanted access to personal data or accounts.

3. Circumvent, disable, or otherwise interfere with security-related features of the Site or Services including features that prevent or restrict the use or copying of any Content or enforce limitations on the use of the Service and/or the Content contained therein.

4. Disparage, tarnish, or otherwise harm, in our opinion, us and/or our services, apps, as well our team of employees, agents, affiliates, and payment processors.

5. Use any information obtained from the Site or use our Services and Apps in order to harass, abuse, or harm another person.

6. Make improper use of our support services or submit false reports of abuse or misconduct.

7. Use the Services in a manner inconsistent with any applicable laws or regulations. Or use the Services in a manner of violating the laws of your or recipient Country or State/Province/Region/Union/Prefecture.

8. Engage in unauthorized framing of or linking to the Service or website or App Store.

9. Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters, spamming (continuous posting of repetitive text), messages aimed for scam, and distributing inappropriate content, that interferes with any party’s uninterrupted use and enjoyment of the Services or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Services or Website.

10. Use our Services to distribute spam, scam messages, phishing, tricks, fakes, inappropriate content, and content that breaches any applicable local, national or international law. We reserve the right to decide which content will be marked as spam, scam, phishing, trick, fake, inappropriate, or illegal.

11. Delete the copyright or other proprietary rights notice from any Content.

12. Attempt to impersonate another user, person, company, entity, or use the personal or business data of another user or entity. It also includes the misuse of trademarks or copyright.

13. Upload, transmit or distribute (or attempt to upload or to transmit or to distribute) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).

14. Interfere with, disrupt, or create an undue burden on the Website or the networks or services connected to the Website or Apps.

15. Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Services to you or use our Services for that.

16. Attempt to bypass any measures of the Website designed to prevent or restrict access to the Website, or any portion of the Website or Service.

17. Copy or adapt the Site’s or Services software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.

18. Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Site or Service.

19. Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Website or Services, or using or launching any unauthorized script or other software.

20. Use unapproved by us buying agent or purchasing agent to make purchases on the Website.

21. Make any unauthorized use of the Website or Service, including collecting our user’s personal data and/or email addresses of users by electronic or other means for the purpose of sending unsolicited emails/messages, or creating user accounts and purchases by automated means or under false pretenses.

22. Use the Website or Service as part of any effort to compete with us or otherwise use the Website or our Services and/or the Content for any revenue-generating endeavor or commercial enterprise.

23. Sell or otherwise transfer your account or license.

If you violate any of these points, you agree that access to the service, API, website, or any other of our apps, may be restricted or blocked permanently without the possibility of a refund. The rest of the funds will be used to cover possible losses caused by the violation of these rules. You agree that you will not have any claims and will not ask for a refund due to a violation of any of these points.

MESSAGING POLICY

You acknowledge that you are solely responsible for compliance with the rules of the services in which you send By using the LoopMessage Server service, you solely access to use our API, as well Sender name which will be used in your API requests for sending messages. Our API provides you feature to deliver messages to your audience, customers, clients in iMessage.

Obtaining a license to use your product or API implies a pricing plan, which may contain a certain limit of requests for messaging. Each successfully delivered message will automatically increment the number of sent messages included in the current billing period. Unused requests from your active pricing plan do not transfer to the next billing period. Depending on the settings of your license, upon reaching the maximum limit of your tariff plan, your license may change status to “unpaid” until the next billing period, or you may be charged for extra send message requests. You can configure this option in your dashboard or ask support to change this option, by default this option will be enabled for each new license to prevent stopping messaging. If the status of your license changes to “unpaid”, all further requests to send messages will return a failure HTTP code, but at the same time, you can still receive webhooks when the recipient replies to your message. If you approved to charge you for extra requests, you will be charged immediately or in some enterprises plans, it can be added as additional payment in the next billing period. You can find a price for extra requests in your dashboard or ask that support. You should take into account that the history of requests for messaging may be stored on our servers (including the content of messages and recipient contact and status of sent messages) because that information will be mandatory for fulfilling our services and managing your limits in your pricing plan.

Promotional/Marketing texts

When you send texts that contain a link, emails, or phone numbers this text will be marked as a promotional/marketing message. Sending such messages requires prior approval from us. This is necessary to prevent violations of the rules described in the “Prohibited Activities” section, before sending a request, make sure that does not violate the rules described in this section. Within a few business days, your request will be reviewed, and only after that, you will be able to include the specified link, phone number, or e-mail in your texts. Links that will have an additional redirect to another page (including short link services) will be rejected by default. We reserve the right to reject any of your requests for approval without describing any rejection reasons.
Recipients who receive promotional/marketing texts will be asked to accept or refuse messages from you and complain about them. We reserve the right to decide which text may be considered promotional or marketing and how to notify the user that they agree to receive messages from you.

Bulk send

To send bulk messages, you must have an active dedicated sender name. All bulk messages are considered promotional/marketing by default. You agree that the bulk sends feature aimed to send only high-quality texts to recipients who expect to hear from you. In cases of violation of the rules from the “Prohibited Activities” section, access to this feature may be restricted.

Shared Sender name

By default, each account can use shared sender names. This name will be visible to your recipients as “sender” in the Message app. A shared sender names allows you to send only transactional messages. These sender names are not intended for bulk messages or for sending promotional/marketing texts.

Dedicated Sender name

Sender name – a string that will be displayed to your recipient as the sender of a message. This name may contain non-accented letters, numbers, periods, pluses, hyphens, and underscores. The sender’s name looks like an email and consists of 2 parts: Name and Domain. The name should be related to your company name, brand, or website. By using the dedicated sender name service, you grant us the right to use that name to provide messaging services to you and you acknowledge that you will have no claims for copyright or trademark infringement or any other infringement related to using the company name in our services. You can’t use a generic sender name like: info, otp, bank, sms and etc. Each company uses its own unique sender name and each sender name is moderated before being applied. If the sender’s name will be rejected or already taken, we will contact you for updates. Verifying and activation of sender name take up to 2 business days. In some cases, it can take a little bit more time if we will have some doubts about your relation to the selected name, and will need to provide some proof of your relationship.

Each request for a new sender name requires you to provide details of who will be responsible for that sender name. From our side, this data will always be checked. If it is discovered that you have provided fake data, you will be denied the approval of the requested sender name, and the one-time setup fee will be refunded. This data may be passed on to your recipients in the cases that complain about your messages. You must provide only real data and notify us immediately if they change. If you refuse to provide up-to-date contact information in a timely manner, you may be denied further use of this sender.

This service works as server hardware rental by prepaid payment model. The sender’s name payment consists of 2 parts:

  • once-off setup fee (preparation and configuration)
  • monthly subscription payment

If you cancel your subscription before the end of your current service period, we do NOT refund any amounts already paid for service in the future. In accounting terms, we don’t prorate services due to the man-hours required to return used hardware to inventory for re-use.

You can’t edit the Name or Domain of an already active sender name. To change the name or domain, you need to cancel the current sender name and order a new one. Such an order will be processed according to the rules as purchasing a new sender’s name described in this section.

Credits

You can buy message packages that will be used as credits for sending messages. Each package has an expiration date. If the expiration date is reached, the credits related to the package will be removed from your balance without any refunds. You are solely responsible for the timely use of credits before they expire. Credits from your balance are used to successfully deliver outbound messages to iMessage.

Sandbox messages

Messages that you send from the sandbox will always have a technical text at the end of each message. You shouldn’t be using a sandbox to send messages to production. Each pricing plan has a max limit of messages in the sandbox. This limit is updated in the next billing period. You can check your current sandbox limit in your dashboard or ask support for that.

If you are using a plan that contains only sandbox requests, then this plan is intended only as temporary for the integration process of our API with your site or backend and further testing of this integration. You shouldn’t use it in the production environment, otherwise, your account might be blocked.

iMessage terms

You acknowledge that you are solely responsible for compliance with the rules of the services in which you send messages. In case of these Terms of Uses, you should keep the rules of Apple services:
https://www.apple.com/legal/internet-services/itunes/
https://www.apple.com/legal/privacy/data/en/messages/

And you agree that only your responsibility to not violate their rules by sending messages to recipients on their platform. Otherwise, Apple may restrict message delivery if they think you are sending spam or if recipients will send complaints about your messages or mark them as spam or unwanted.

You agree that you will not have any further claims if similar or any other restrictions are applied by Apple to your sender name/account due to a violation of their rules. And you will not demand a refund from us or Apple under such restrictions. You agree that any requests for refunds for such or similar reasons related to limitations by apple or that you provoke yourself will be ignored or declined.

REFUND POLICY

A refund is issued if there is a technical problem with the product and we can’t help you to resolve the problem. This does not include problems that were caused by a violation of the current Terms of Use or a violation of Apple’s or any other party’s policies that ended up restricting their services or incorrect working of our service. All refund requests are discussed individually with the support team.

You agree that any refund requests may be declined and you will not have any claims or lawsuits related to this. Especially if you breach these Terms of Use.

In the cases of an unauthorized refund that is not pre-approved by us, your accounts may be blocked to use any of our products or services, as well as the products or services of our partners, until you cover the negative balance on your account.

Important: When you stop using our API or website that will not automatically stop your active recurring payments. You must cancel your subscriptions first to end your recurring payments. If stop using our API or services without canceling your subscription, you will still be charged. And you agree that can’t be a reason for the refund request.

U.S. GOVERNMENT RIGHTS

Our services are “commercial items” as defined in Federal Acquisition Regulation (“FAR”) 2.101. If our services are acquired by or on behalf of any agency not within the Department of Defense (“DOD”), our services are subject to the terms of these Terms of Use in accordance with FAR 12.212 (for computer software) and FAR 12.211 (for technical data). If our services are acquired by or on behalf of any agency within the Department of Defense, our services are subject to the terms of these Terms of Use in accordance with Defense Federal Acquisition Regulation (“DFARS”) 227.7202‐3. In addition, DFARS 252.227‐7015 applies to technical data acquired by the DOD. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in computer software or technical data under these Terms of Use.

SITE MANAGEMENT

We reserve the right, but not the obligation, to: (1) monitor the Website and Services, as well how you use our Services and Website for violations of these Terms of Use; (2) take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms of Use, including without limitation, reporting such user to law enforcement authorities; (3) in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of your accounts or licenses; (4) in our sole discretion and without limitation, notice, or liability, to remove from the Service, Database or Severs or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and (5) otherwise manage the Website or Services in a manner designed to protect our rights and property and to facilitate the proper functioning of our Services.

PRIVACY POLICY

We care about data privacy and security. Please review our Privacy Policy. By using our Services, especially LoopMesage Server, you agree to be bound by our Privacy Policy, which is incorporated into these Terms of Use. Please be advised the Services are hosted in the USA, Germany, and Ireland (hereinafter referred to as ‘hosted countries’). If you access the Website or our Services from any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in ‘hosted countries’, then through your continued use of the Website or our Services, you are transferring your data to one of the ‘hosted countries’, and you agree to have your data transferred to and processed in any of ‘hosted countries’.

RESTRICTED COUNTRIES OR COMPANIES

We can’t currently open accounts or provide services for users living in the following countries (Restricted countries): Afghanistan, Burma (Myanmar), Cote d’Ivoire, Cuba, Democratic Republic of the Congo, Iran, Iraq, Liberia, Libya, Morocco, Nicaragua, North Korea, Russia, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Venezuela, Yemen, and Zimbabwe. As well as companies or individuals who deny: Russia’s military aggression against Ukraine, as well as the fact that Russia is a Nazi-fascist state. And/Or who finance Russia after the beginning of military aggression by the Nazi-Fascist Russian government.

Your account may qualify as country-restricted if:
1) Your entity is registered in restricted countries. And/or originally from restricted countries.
2) Your company or team where the main part of the management or people who make decisions is located in restricted countries. Or cooperate closely with companies or individuals from restricted countries.
3) The company whose main market where operates in restricted countries. Or most of the requests to our services or API relate to the market from restricted countries.

Any attempt to use a VPN or any other approach to bypass these country restrictions will be considered a violation of the terms of use and this account will be restricted or blocked.

We reserve the right to close a user’s account if we discover that the service is being used by a company that provides services similar to ours (sending messages via the iMessage).

TERM AND TERMINATION

These Terms of Use shall remain in full force and effect while you use the Website, our Services, or API. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF USE, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE SITE (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OF USE OR OF ANY APPLICABLE LAW OR REGULATION. WE MAY TERMINATE YOUR USE OR PARTICIPATION IN THE SERVICES OR DELETE YOUR LICENSE WITH ACCOUNT AND ANY CONTENT, MESSAGES, OR INFORMATION THAT YOU POSTED OR DISTRIBUTED AT ANY TIME, WITHOUT WARNING, IN OUR SOLE DISCRETION.

If we terminate or suspend your license or account for any reason, you are prohibited from obtaining a new license or account under your name/company, a fake or borrowed name/company, or the name/company of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.

MODIFICATIONS AND INTERRUPTIONS

We reserve the right to change, modify, or remove the contents of the Website, API, Documentation, or Helpdesk at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Website related to our Services. We also reserve the right to modify or discontinue all or part of the Website without notice at any time. We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Website.

We cannot guarantee the Website, our Services, or customer support will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to our Services and Website, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify Services and Website at any time or for any reason without notice to you. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use Services during any downtime or discontinuance of Service our Website. Nothing in these Terms of Use will be construed to obligate us to maintain and support Services and Website or to supply any corrections, updates, or releases in connection therewith.

For our part, we will try to make every effort to maintain our services in proper condition. At the same time, we reserve the right to decide how much we can make efforts to support our Services or restore them from downtime or discontinuance.

GOVERNING LAW

These Terms of Use and your use of the Site are governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without regard to its conflict of law principles.

DISPUTE RESOLUTION Informal Negotiations

To expedite resolution and control the cost of any dispute, controversy, or claim related to these Terms of Use (each “Dispute” and collectively, the “Disputes”) brought by either you or us (individually, a “Party” and collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least thirty (30) days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.

Binding Arbitration

If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. YOU UNDERSTAND THAT WITHOUT THIS PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Consumer Rules and, where appropriate, limited by the AAA Consumer Rules. If such costs are determined by the arbitrator to be excessive, we will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the applicable AAA rules or applicable law, the arbitration will take place in California. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state and federal courts located in California, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are excluded from these Terms of Use.

In no event shall any Dispute brought by either Party related in any way to the Site be commenced more than one (1) years after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable, and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

Restrictions

The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (a) no arbitration shall be joined with any other proceeding; (b) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (c) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.

Exceptions to Informal Negotiations and Arbitration

The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any Disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

CORRECTIONS

There may be information on the Website, Dashboard, Documentation, and Helpdesk that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.

DISCLAIMER

OUR SERVICES ARE PROVIDED ON AN AS-IS AND AS-AVAILABLE BASIS. YOU AGREE THAT YOUR USE OF THE SITE AND OUR SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH SERVICES AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SITE’S OR DOCUMENTATION CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THE SITE OR SERVICES AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE OR OUR SERVICES, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE OR OUR SERVICES, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SITE OR OUR SERVICES OR API BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, ANY HYPERLINKED WEBSITE, OR ANY WEBSITE OR MOBILE APPLICATION FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

LIMITATIONS OF LIABILITY

IN NO EVENT WILL WE OR OUR DIRECTORS, CHIEFS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, PROBLEMS WITH LAW, LITIGATION, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE WEBSITE OR SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE ONE (1) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

BY USING OUR SERVICE OR API FOR SENDING MESSAGES, YOU ARE RESPONSIBLE FOR THE CONTENT OF MESSAGES THAT WILL BE RECEIVED BY THE RECIPIENT. AND YOU UNDERTAKE TO YOURSELF ALL COMPLAINTS AND LEGAL PROCEEDINGS FROM THE RECIPIENTS RELATING TO THE CONTENT OF MESSAGES SENT TO THEM. OTHERWISE, WE WILL BE FORCED TO COOPERATE WITH YOUR RECIPIENTS TO HELP THEM SUBMIT COMPLAINTS IN CASE OF VIOLATION OF THEIR LOCAL LAWS OR RECEIVING SCAM, FAKE, OR SPAM CONTENT.

INDEMNIFICATION

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, payment processors, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) use of our services and API; (2) breach of these Terms of Use; (3) any breach of your representations and warranties set forth in these Terms of Use; (4) your violation of the rights of a third party, including but not limited to trademarks, copyrights, and intellectual property rights; or (5) any overt harmful act toward any your recipient which receives messages from our services with whom you connected via our API or other services or Apps; (6) any attempts of litigation against us from your recipients to whom messages were sent through our Services, API, or Apps. Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

USER DATA

We will maintain certain data that you transmit to the Website or our Services or API for the purpose of managing the performance of our Services, as well as data relating to your use of our Services and API. Although we perform regular routine backups of data, you are solely responsible for all data that you transmit or that relates to any activity you have undertaken using the Website, our Services, or API. You agree that we shall have no liability to you for any loss or corruption of any such data, and you hereby waive any right of action against us arising from any such loss or corruption of such data.

ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES

Visiting the Website, using our services, sending us emails or messages in chat or instant messengers, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email, messages, and on the Site, satisfy any legal requirement that such communication is in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, MESSAGES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE SITE OR ANY OF OUR SERVICES. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

CALIFORNIA USERS AND RESIDENTS

If any complaint with us is not satisfactorily resolved, you can contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834 or by telephone at (800) 952-5210 or (916) 445-1254.

MISCELLANEOUS

These Terms of Use and any policies or operating rules posted by us on the Site or in respect to the Site or our Services constitute the entire agreement and understanding between you and us. Our failure to exercise or enforce any right or provision of these Terms of Use shall not operate as a waiver of such right or provision. These Terms of Use operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. If any provision or part of a provision of these Terms of Use is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Use and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment, or agency relationship created between you and us as a result of these Terms of Use or use of the Site. You agree that these Terms of Use will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms of Use and the lack of signing by the parties hereto to execute these Terms of Use.

CONTACT US

In order to resolve a complaint regarding our Services, Website, API, Apps or to receive further information regarding the use of our services, please contact us at: [email protected]

Company Address:
Deliany LLC
1000 Brickell Ave
Ste 715 #5051
Miami, FL 33131
United States

Last updated October 10, 2022