We may make changes to this Agreement from time to time, and we will give you not less than thirty (30) days advance notice of any material changes and an opportunity to opt-out by sending an email to email@example.com. If you continue to use the Service following such thirty (30) days notice, you will have agreed to such changes and will be bound by them. If you opt-out of such changes, our legal agreement will continue to be bound by the last version of this Agreement that you accepted, subject to our mutual rights to discontinue our contractual relationship.
Except for certain kinds of disputes described in Section 19, you agree that disputes arising under this Agreement will be resolved by binding, individual arbitration, and BY ACCEPTING THIS AGREEMENT, YOU AND SOMIS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court), and your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. (See Section 19).
(a) Accounts. You must register for and maintain an account with us to use the Service. When registering, you must provide accurate and complete information and promptly update this information. If you provide any information that is inaccurate or incomplete, or we have reason to believe that the information is inaccurate or incomplete, we may suspend or terminate your account and your use of the Service. Only authorized users may use your account to use the Service and conduct other activities with us. You are responsible for all activities that occur through your account. To protect your account from unauthorized use, keep your user identification and password secure and those of your authorized users. Please notify us immediately of any unauthorized use of your account or any other breach of security. If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through you, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by SOMIS to prevent or terminate unauthorized use of the Service.
(b) Eligibility. You must be at least the age of majority in the jurisdiction in which you live (which in most jurisdictions is either 18 or 19 years of age)to use the Service. By agreeing to this Agreement, you represent and warrant to us that: (a) you are at least the age of majority in the jurisdiction in which you live; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations.
(c) Corporate Entities. If you are an entity, organization, or company (“Corporate Entity”), the individual accepting this Agreement on your behalf represents and warrants that they have authority to bind the Corporate Entity to this Agreement and the Corporate Entity agrees to be bound by this Agreement. You may allow Standard Users working for your Affiliates to use the Service under your subscription to the Service, as long as the total number of Standard Users between you and all of your Affiliates does not exceed the number of Standard Users that you are paying for under your subscription and as long as used in the operation of a single business. If you allow your Standard Users working for your Affiliates to use your account, you agree that: (a) you will at all times be liable and responsible for all acts and omissions of your Affiliates that use the Service (and any users using the Service on behalf of the Affiliate) as though those acts and omissions were committed by you; and (b) you agree (and you agree on behalf of your Affiliates) that your Affiliates and their end users may have access to all data and information that you can access through your account and SOMIS is not responsible for enforcing any data access restrictions between you and your Affiliates. Failure to do so will constitute a breach of your obligations pursuant to this Agreement. “Affiliate” means any entity that, directly or indirectly, through one or more intermediaries, you control, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies. If you registered for the Service under a name other than the legal name of a business, we may from time to time require you to verify that all licenses purchased by you are used only by you and your Affiliates and in the operation of a single business. If you are using multiple Standard Users accounts in connection with the operation of more than one business, you must disclose this fact to us at time of registration and renewal for the Service, as separate businesses require separate agreements with us. Failure to do so will constitute a breach of your obligations pursuant to this Agreement.
(a) License Grant. Subject to your complete and ongoing compliance with the terms and conditions of this Agreement, SOMIS grants to you a limited, worldwide, non-exclusive, non-transferable, non-sublicensable right during the term of this Agreement to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service solely in connection with the internal business operations of a single business, in each case solely for use by a number of Standard Users that does not exceed the number of paid subscriptions in your account, with no substitution of such users except as expressly permitted. By way of example only, if you have 10 employees in your company, and if you have only paid for 3 Standard User licenses, you are granted a limited non-exclusive license to have up to 3 individuals only access the Service as Standard Users, without substitution. Use of the Service by any number of individuals above the number of Standard User licenses you have purchased as part of your subscription is a violation of your Agreement. Any number of individuals using the Service in excess of the number of Standard User licenses you have subscribed to will be subject to immediate additional subscription purchases to the payment method on file, pro rated for any partial period. Further, if SOMIS provides you with any API or software outside the Service (“Ancillary Software”), SOMIS hereby grants you a limited, non-exclusive, non-transferable right to use that Ancillary Software solely in connection with your use of the Service.
(b) Standard User. As used in this Agreement, a "Standard User" means a natural person affiliated or associated with your business or under the direction of your business who: (i) is assigned sole or primary responsibility for performing a customer job by her/himself, (ii) who functions in a leadership role for an install crew or (iii) to whom or to whose activities revenue can otherwise be attributed. Any user that is designated as a Standard User cannot be designated otherwise: (A) before the end of the subscription period in which he or she was so designated and (B) without the approval of SOMIS. You may not, and you must ensure that your Standard Users do not, share accounts with each other or any other individuals. You are responsible and liable for ensuring that your Standard Users (or anyone else using your accounts or the accounts of your Standard Users) comply with the terms of this Agreement. Deactivation of an individual as a Standard User will result in such user being unassigned from all jobs and removed from reporting functionality. Monthly billing will be based upon the number of Standard Users at the beginning of the period, plus prorated billing for any added Standard Users and without reduction for users removed during the period. For the avoidance of doubt, the number of Standard User subscriptions that you must maintain at any given time will be subject to any minimums specified in your agreements with us.
(c) Early Access. If you obtain a subscription to a new feature or add-on to the Service designated by us as “Preview”, “Beta”, “Early Access” or “Evaluation Services” (“Early Access Service”), notwithstanding any other terms to the contrary, you may use such Early Access Service only for your internal demonstration, test, or evaluation purposes. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, GUARANTEES AND OTHER KINDS OF PROMISES, EXPRESS OR IMPLIED, FOR EARLY ACCESS SERVICE AND THEY ARE PROVIDED ON AN “AS IS” BASIS. EARLY ACCESS SERVICE HAVE A NON-PERPETUAL TIME LIMITED SUBSCRIPTION TERM AND WE MAY “TIME-OUT” AND DISABLE THE EARLY ACCESS SERVICES OR OTHERWISE DISCONTINUE YOUR ACCESS AND USE OF THE EARLY ACCESS SERVICE AT ANY TIME WITHOUT PRIOR NOTICE. You will not attempt to defeat or circumvent any duration mechanism for the Early Access Service and will not use any Early Access Service beyond the prescribed term of early access. Your use of an Early Access Service may be subject to additional terms and conditions that you must agree to when accessing the Early Access Service.
If you are current with payment of Service fees, and subject to any other agreement you may for support for the Service,SOMIS will provide you with its standard technical support services relating to the Service, subject to SOMIS’s published support policies.
(a) General Payment Terms. Certain features of the Service may require you to pay fees, including all applicable taxes. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. Unless otherwise agreed, all fees are in U.S. Dollars and are non-refundable. SOMIS reserves the right to change the required method of payment at any time, upon notice to you. You are responsible for updating your account information should the required payment method change. If you agreed to purchase a minimum number of Standard User licenses as part of registering for the Services (the “Minimum License Level”), you must pay for at least that number of licenses during the applicable term. Additional licenses may be purchased at the same pricing during the term, with fees prorated for partial months, and you may make adjustments in the actual number of licenses from time to time, provided that you must always purchase a number of licenses equal to or greater than the Minimum License Level. Monthly billing will be based upon the number of users at the beginning of the period, plus prorated billing for any added users and without reduction for users removed during the period. All fees paid hereunder are non-refundable and non-recoupable. You agree that your purchases under this Agreement are neither contingent on the delivery of any future functionality or features of the Service nor dependent on any oral or written public comments made by us regarding future functionality or features.
(b) Price. SOMIS reserves the right to determine pricing for the Service. SOMIS will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. SOMIS may change the fees for any feature of the Service, including additional fees or charges, if SOMIS gives you advance notice of changes before they apply. SOMIS, at its sole discretion, may make promotional offers with different features and different pricing to any of SOMIS’s customers. These promotional offers, unless made to you, will not apply to your offer or this Agreement.
(c) Subscription Service. The Service includes automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize SOMIS to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until you cancel your subscription or we terminate it. You must cancel your subscription before it renews in order to avoid charging of the next periodic Subscription Fee to your account. You may cancel the Subscription Service by contacting us at: support@SOMIS.com.
(d) Delinquent Accounts. SOMIS may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees, charges or expenses (including attorneys’ fees) that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
(a) Term. The term of this Agreement commences upon your registration for a Service subscription and remains in effect for the term of your subscription. Subscriptions are annual and will automatically renew for additional successive yearly terms unless terminated as specified in this Section. For the purposes of providing notice of non-renewal as described in this paragraph, notice will be required not less than ninety (90) days prior to renewal. Notice via email to SOMIS at support@SOMIS.com will be deemed sufficient. Upon termination, your access to the Service and any information stored by the Service will also terminate. SOMIS may terminate this Agreement at any time upon 30 days’ prior written notice for its convenience, and will refund to you a pro-rata portion of any unused, prepaid fees.
(b) Termination. We may immediately, without notice, suspend or terminate your access to the Service and terminate this Agreement for any of the following reasons: (a) you breach any provision of this Agreement; (b) you seek to hack the security mechanisms of the Service or we otherwise determine that your use of the Service poses a security risk to us or to another user of the Service; (c) you introduce a malicious program into the network or a virtual machine instance; (d) you cause network interference that affects Service performance for other customers; (e) you use the Service in a way that we determine, in our sole discretion, is abusive or disrupts or threatens the performance or availability of the Service; or (f) we receive notice or we otherwise determine, in our sole discretion, that you may be using the Service for an illegal purpose or in a way that violates the law or violates, infringes, or misappropriates the rights of any third party.
(c) Early Termination: If you want to terminate this Agreement before the term is over, you will owe a termination fee equal to all the remaining payments. The only exception is that you may terminate with thirty (30) days' written notice if SOMIS materially breaches this Agreement and does not cure the breach within thirty (30) days' of receiving your written notice.
(d) Effect of Termination. If this Agreement is terminated for any reason: (i) you will pay to SOMIS any fees or other amounts that have accrued prior to the effective date of the termination; (ii) any and all liabilities accrued prior to the effective date of the termination will survive; and (iii) the following sections will survive: Sections 5, 7, 8, 9 and 11 through 30. In addition, if you terminate this Agreement before the term is over, you will owe an additional termination fee equal to all the remaining payments. The only exception is that you may terminate with thirty (30) days' written notice if SOMIS materially breaches this Agreement and does not cure the breach within thirty (30) days' of receiving your written notice. Following termination and upon your request and subject to any specific restrictions applicable to you or your data, SOMIS will make reasonable efforts to export and provide to you in electronic format the information in your account (service fees may apply), but SOMIS is not obligated to retain that information following any termination and makes no representation to the integrity, completeness or timeliness of any data so exported.
We do not provide you with the equipment to access the Service. You are responsible for all fees charged by third parties to access the Service (e.g., Internet access charges). You agree and acknowledge that SOMIS may update and otherwise change the Service from time to time in its sole discretion from time to time during or after your Subscription Service term provided that such modifications do not materially degrade any of the functionality or features of the Service. We reserve the right to modify or discontinue, temporarily or permanently, all or a part of the Service without notice. We will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service, except that if we permanently discontinue the Service we will provide you, as your sole and exclusive remedy, and our sole and exclusive liability, a pro-rated refund representing the unused (as of the date of termination) portion of any subscription fees that you have paid in advance.
You must comply with all applicable laws, including privacy laws, when using the Service; for the avoidance of doubt, you will be responsible for notifying parties that telephone calls are being recorded and ensuring that all text messages are sent with the recipients’ valid consent and include prescribed information and an effective unsubscribe mechanism, to the extent required. Except as may be expressly permitted by applicable law or authorized by us in writing, you will not, and will not permit anyone else to:
a.use the Service for any illegal purpose or in violation of any local, state, national, or international law;
b. harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
c. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
d. use the Service in violation of any advertising and marketing laws such as CAN-SPAM, the Telephone Consumer Protection Act, the FTC’s Telemarketing Sales Rule, Canada’s Anti-Spam Legislation (CASL) and the CRTC Unsolicited Telecommunications Rules, including those that relate to (i) permitted calling times; (ii) customers’ consent to be contacted by telephone and/or text messages (including opt in/opt out consent where applicable and do not call lists); (iii) the required content of text messages and requirements for promptly implementing unsubscribe requests; (iv) any registration requirements relating to do not call lists; and (v) any notices that need to be given to potential customers during telephone calls.
e. import or transfer to the Service any data that is sensitive financial information (including credit card numbers), health information, medical information, pharmaceutical information, information regarding children under 13 years of age, or other sensitive or regulated information (for example, Social Security Numbers);
f. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
g. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
h. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
i. sell or otherwise transfer the access granted under this Agreement or any right or ability to view, access, or use the Service; or
j. attempt to do any of the acts described in this Section 7 or assist or permit any person in engaging in any of the acts described in this Section 7.
Except for the rights to access the Service expressly granted to you in this Agreement, we retain all right, title, and interest in and to the Service, including all related intellectual property rights. The Service is protected by applicable intellectual property laws, including United States and Canadian copyright law and international treaties.
If you provide feedback to us regarding the Service or SOMIS’s website (“ Feedback”), you authorize us to use that Feedback without restriction and without payment to you. Accordingly, you hereby grant to us a non-exclusive, fully-paid, royalty-free, perpetual and irrevocable license to exploit the Feedback in any manner and for any purpose.
(a) Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes non-public information or material you upload to the Service; Confidential Information of SOMIS includes the Services and Content, and the terms and conditions of all Customer Success Agreements and Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
SOMIS warrants that the Service will, during the term of your subscription, materially conform to any description of the Service published by SOMIS. As SOMIS’s sole and exclusive liability for breach of this limited warranty, and your sole and exclusive remedy, SOMIS will make reasonable efforts to correct the non-conformity.
You represent and warrant that: (a) you will not upload or request that SOMIS import any information (including personal information) to the Service unless you have all consents, permissions and licenses necessary to do so and to authorize SOMIS’s collection, use, disclosure and retention of that information in accordance with this Agreement; and (b) your use of the Service will not subject SOMIS to any liability or cause SOMIS to violate any law, rule, or regulation or guideline.
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. SOMIS DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, CONDITIONS, GUARANTEES AND PROMISES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. SOMIS DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND SOMIS DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR SOMIS ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY REPRESENTATION, WARRANTY, CONDITION, GUARANTEE OR PROMISE REGARDING ANY OF THE SOMIS ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. SOMIS does not disclaim any warranty or other right that SOMIS is prohibited from disclaiming under applicable law.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE SOMIS ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS, ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE OR ARISING OUT OF OR WITH RESPECT TO ANY PRODUCTS OR SERVICES (INCLUDING PROFESSIONAL SERVICES) PROVIDED BY SOMIS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE OR WILFUL MISCONDUCT), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SOMIS ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE SOMIS ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE OR WILFUL MISCONDUCT), STATUTE, OR ANY OTHER LEGAL THEORY, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO SOMIS FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THIS AGREEMENT. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify SOMIS and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “SOMIS Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, in connection with your use of the Service or any data, materials or information you provide to the Service; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
SOMIS will not be liable to you for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to circumstances beyond SOMIS’s reasonable control.
You may not assign this Agreement or any right, duty, or obligation under this Agreement, without SOMIS’s prior written consent, including, for the avoidance of doubt, to any acquirer of your business. If consent is given, this Agreement will bind your successors and assigns. Any attempt by you to transfer any right, duty, or obligation under this Agreement except as expressly provided in this Agreement is void. SOMIS may assign this Agreement or any right, duty, or obligation under this Agreement, at any time without your consent.
SOMIS may utilize one or more subcontractors or other third parties to perform its duties under this Agreement so long as SOMIS remains responsible for all of its obligations under this Agreement.
Except as otherwise expressly set forth in this Agreement, any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth below for SOMIS, and at the address set forth in your account for you, and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
SOMIS, Inc. Attn: Legal 801 N. Brand Blvd., Suite 700 Glendale, CA 91203
(a) Generally. In the interest of resolving disputes between you and SOMIS in the most expedient and cost effective manner, and except as described in Sections 19(b), (c) and (g), you and SOMIS agree that every dispute arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND SOMIS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
(b) Exceptions. Despite the provisions of Section 19(a), nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
(c) Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 19 within 30 days after the date that you agree to this Agreement by sending a letter to SOMIS, Inc., 801 N. Brand Blvd., Suite 700, Glendale, CA 91203 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once SOMIS receives your Opt-Out Notice, this Section 19 will be void and any action arising out of this Agreement will be resolved as set forth in Section 20. The remaining provisions of this Agreement will not be affected by your Opt-Out Notice.
(d) Arbitrator. Any arbitration between you and SOMIS will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this Agreement. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting SOMIS. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
(e) Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). SOMIS’s address for Notice is: SOMIS, Inc., 801 N. Brand Blvd., Suite 700 Glendale, CA 91203. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or SOMIS may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or SOMIS must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by SOMIS in settlement of the dispute prior to the award, SOMIS will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
(f) Fees. If you commence arbitration in accordance with this Agreement, SOMIS will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Los Angeles County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse SOMIS for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
(g) No Class Actions. YOU AND SOMIS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and SOMIS agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
(h) Modifications to this Arbitration Provision. If SOMIS makes any future change to this arbitration provision, other than a change to SOMIS’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to SOMIS’s address for Notice of Arbitration, in which case your account with SOMIS will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
(i) Enforceability. If Section 19(g) or the entirety of this Section 19 is prohibited by applicable law or found by a court of competent jurisdiction to be unenforceable, or if SOMIS receives an Opt-Out Notice from you, then the entirety of this Section 19 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 20 will govern any action arising out of or related to this Agreement.
This Agreement is governed by the laws of the State of California without regard to conflict of law principles. Subject to section 19, you and SOMIS hereby irrevocably and unconditionally submit and attorn to the personal and exclusive jurisdiction of the state courts and federal courts located within Los Angeles County, California for resolution of any lawsuit or court proceeding permitted under this Agreement. We operate the Service from our offices in California, and offer the Service in the United States and Canada. We make no representation that the Service is appropriate or available for use in other locations.
The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
If any part of this Agreement is found by a court of competent jurisdiction to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate.
Your use of the Service is subject to all additional terms, policies, rules, product documentation, published materials or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
(b) By entering into this Agreement, you agree to receive calls and text messages from SOMIS and persons acting on our behalf to the telephone number you provided to us. You understand and agree that these calls and text messages may be made using an autodialer, artificial or prerecorded voice, or other automated technology. These communications may include operational communications concerning your account, communications regarding the Service and marketing communications. Standard text messaging rates will apply. Your agreement to receive promotional calls and texts is not a condition of any purchase or of use of the Service.
(c) We and our affiliates and third party service providers may also communicate with you by email and push notifications in our mobile application. (d) IF YOU WISH TO OPT OUT OF COMMERCIAL EMAILS FROM SOMIS, YOU CAN UNSUBSCRIBE BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL TEXTS, REPLY “STOP” TO A PROMOTIONAL TEXT OR SEND AN EMAIL TO OPTOUT@SOMIS.COM WITH THE PHONE NUMBER AND YOUR REQUEST. TO OPT OUT OF PROMOTIONAL CALLS, PLEASE MAKE A DO NOT CALL REQUEST DURING ANY CALL YOU RECEIVE, OR CALL US AT (866) 622-0680.
If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
The Service is intended for visitors located within the United States and Canada. We make no representation that the Service is appropriate or available for use outside of the United States and Canada. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
Google Maps presented to you through the Service are powered by Google. Your use of Google Maps is subject to the Google Maps Terms of Service, available online at https://www.google.com/intl/en-US_US/help/terms_maps.html, and https://www.google.com/intl/ALL/policies/privacy/index.html, and by using the Service, you are agreeing to be bound by such terms.
This Section 29 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that this Agreement are between you and SOMIS only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the Service infringe a third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
This Agreement, along with any Additional Terms, is the final and complete expression of the agreement between these parties regarding your use of the Service. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of SOMIS has any authority to bind SOMIS with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. SOMIS will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless SOMIS specifically agrees to such provision in writing and signed by an authorized agent of SOMIS.
(a) If you register to use SOMIS’s Phones services (“SOMIS Connect”), your use of SOMIS’s Phones service is subject to these additional terms and conditions.
(b) Phones Upgrades and Downgrades. You may upgrade or downgrade your license to SOMIS Connect at any time during the month. For license upgrades, you will be charged the prorated difference between the Standard and Advanced license fees. For license downgrades, you will be charged the Advanced license rate for the remainder of the current billing cycle and the downgraded fees will apply at the beginning of the next billing cycle.
(d) Charges are set by SOMIS Connect. Our charges for SOMIS Connect may also include Federal Universal Service, Regulatory and Administrative Charges, and we may also include other charges related to our government costs. SOMIS sets these charges; they may not consist of taxes or be required by law (or otherwise related to anything the government does). They are kept by SOMIS in whole or in part, and the amounts and what they pay for may be changed by SOMIS at any time.
(e) Whether or not you use SOMIS Connect, phones numbers you port into SOMIS are handled in accordance to the Federal Communications Commission (FCC) “local number portability” (LNP) rules. SOMIS and ports local and toll-free numbers for Customers to use for call tracking and recording purposes in the Service. Any number that a Customer ports to SOMIS or obtains through SOMIS, will be owned by that Customer as owner of record. SOMIS will not attempt to hold or restrict the transfer any such number or prevent an authorized port. All numbers that Customers port into SOMIS are eligible to be ported out at any time and such Customers remain the owner of record for those numbers while they are hosted through SOMIS. SOMIS does not impose any port in or port out fees.
(a) Your use of SOMIS Pay (“Payments”) is subject to the following additional terms and conditions.
(b) PCI DSS Compliance. In the course of using Payments, Customer will have access to and may collect, access, use, store, process, dispose of, or disclose credit, debit, or other payment cardholder information. Customer agrees and acknowledges that Customer shall at all times remain in compliance with Payment Card Industry Data Security Standard ("PCI DSS") requirements, including remaining aware at all times of changes to the PCI DSS and promptly implementing all procedures and practices as may be necessary to remain in compliance with the PCI DSS, in each case, at Customer's sole cost and expense. SOMIS agrees and acknowledges that SOMIS is responsible as well for the security of cardholder data that we possess or otherwise store, process, or transmit on behalf of the Customer and to the extent that SOMIS could impact the security of Customer’s cardholder data environment.
(c) Indemnification. To the fullest extent permitted by law, you are responsible for your use of Payments, and you will defend and indemnify the SOMIS Entities from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with your use of Payments, including, for the avoidance of doubt, any expenses for chargebacks, fines or fees for which SOMIS becomes liable for or otherwise incurs.
(d) Personal Guarantees. At any time or from time to time, SOMIS may require that a Customer provide a personal guarantee from a suitable person in order to begin or continue using SOMIS Pay. SOMIS may at anytime and without notice suspect Customer’s use or access to SOMIS Pay pending the delivery of such a guarantee and, if Customer refuses to provide or otherwise cannot provide such a guarantee within five (5) business days, SOMIS shall be entitled to suspend or terminated Customer’’s access to SOMIS Pay as it deems fit without penalty or liability.
Your use of SOMIS’s SOMIS Edge service (“SOMIS Edge”) is subject to the following additional terms and conditions.
(a) Fees for SOMIS Edge. The fees you will pay for SOMIS SOMIS Edge will depend on the number of email contacts in your SOMIS Edge account as set forth on the cover page of your Customer Success Agreement, the number and types of direct mail pieces you order and the individual features you subscribe for and use. Per piece fees will be charged as incurred. SOMIS Edge fees are billed in arrears at the end of each month based on the usage and tier of service as of the billing date. All fees paid hereunder are non-refundable and non-recoupable.
(b) Compliance with Law. You represent and warrant that your access to and use of SOMIS Edge will comply with all applicable laws, rules and regulations, including but not limited to those that relate to privacy and data protection and to the sending of electronic communications. You further represent and warrant that you have a lawful basis for processing and sending Your Content and communications to your customers, business contacts or followers who consent to receiving marketing messages from you or on your behalf (“Contacts”), whether through legally appropriate consents or otherwise. When using the SOMIS Service, you may import data, including personally identifiable information, regarding your Contacts (“Contact Data”). You will not provide SOMIS or upload to SOMIS Edge, or take any actions with respect to, any of Your Content or Contact Data for which you do not have a lawful basis for processing, permissions or consents in accordance with applicable privacy and data protection laws, nor information that is illegal or inappropriate. SOMIS reserves the right to remove illegal or inappropriate content. You (and not SOMIS) are responsible for ensuring that you meet all legal obligations (including notice, consent, and prescribed information and unsubscribe mechanisms) for sending communications to individuals in the jurisdictions where they reside. While SOMIS Edge allows you to manage and access consents and other Contact Data, you acknowledge and agree that you, and not SOMIS, have sole responsibility for maintaining all records relating thereto. You are solely responsible for determining whether SOMIS Edge is suitable for use in light of any laws and regulations that govern your entity, industry, or relationship with your own Contacts, including but not limited to consumer protection, privacy, advertising, intellectual property or other laws. You may not use SOMIS Edge for any unlawful or discriminatory activities, including acts prohibited by the Federal Trade Commission Act, Fair Credit Reporting Act, Equal Credit Opportunity Act, or other laws that apply to commerce. The guidelines below are examples of practices that may violate this Agreement or applicable law when generating or sending commercial electronic messages (“Emails”) through SOMIS Edge:
a. Using non-permission based Email lists (i.e., lists in which each recipient has not explicitly granted permission to receive Emails from you by affirmatively opting-in to receive those Emails);
b. Using purchased or rented Email lists;
c. Using third party email addresses, domain names, or mail servers without proper permission;
d. Sending Emails to non-specific addresses (e.g., firstname.lastname@example.org or email@example.com);
e. Sending Emails that result in an unacceptable number of spam or UCE complaints (even if the Emails themselves are not actually spam or UCE);
f. Failing to include a working “unsubscribe” link in each Email that allows the recipient to remove themselves from your mailing list;
g. Failing to comply with any request from a recipient to be removed from your mailing list within 10 days of receipt of the request;
i. Disguising the origin or subject matter of any Email or falsifying or manipulating the originating email address, subject line, headers, or transmission path information for any Email;
j. Failing to include in each Email your valid physical mailing address or a link to that information; and
k. Including “junk mail,” “chain letters,” “pyramid schemes,” incentives (e.g., coupons, discounts, awards, or other incentives) or other material in any Email that encourages a recipient to forward the Email to another recipient.
(c) Termination. Upon termination of your SOMIS Edge subscription, SOMIS will allow you to access Your Content for a limited period of 30 days for the purpose of removing all SOMIS-provided content from Your Content. Subject to SOMIS’s agreement that all SOMIS-provided content (or content derived from SOMIS-provided content) has been removed from Your Content, SOMIS will then permit you to export Your Content from SOMIS Edge.
(d) Third Party Data. Certain functions and features of SOMIS Edge make use of data licensed from or owned by third parties (“Third Party Data”). SOMIS may charge incremental fees in connection with your access to such Third Party Data. You may use this Third Party Data solely in connection with your use of SOMIS Edge and for internal analysis, and you shall not use any such Third Party Data for reproduction, sale, publication, or any other use in relation to any product or service to be provided to any third party, or any other commercial exploitation except as expressly consented to by SOMIS. Third Party Data remains the property of its owner, and you will not acquire any proprietary rights in or to the Third Party Data, and you acknowledge that the Third Party Data is a valuable commercial product, the development of which has involved the expenditure of substantial time and money. You acknowledge that some Third Party Data is sourced from public documents or statistical calculations, is provided on an “as is, as available” basis with all faults and defects, and neither the owner/licensee of such Third Party Data nor SOMIS makes any warranties, express or implied, including without limitation, those of merchantability and fitness for a particular purpose. Further, neither owner/licensee of such Third Party Data nor SOMIS are responsible for errors, omissions, miscalculations, or misrepresentations of value. Any use of or reliance on Third Party Data by you is at your own risk.
(e) Termination. Upon termination of your SOMIS Edge subscription, SOMIS will allow you to access Your Content for a limited period of 30 days for the purpose of removing all SOMIS-provided content from Your Content. Subject to SOMIS’s agreement that all SOMIS-provided content (or content derived from SOMIS-provided content) has been removed from Your Content, SOMIS will then permit you to export Your Content from SOMIS Edge.