Terms of Use Agreement

Date of last revision: March 27, 2020

This terms of use agreement (“Agreement”) is between Ikeono, LLC, a Delaware limited liability company (“we,” “us,” “our,” or “ourselves”) and the person or entity (“you” or “your”) that has decided to use our services; any of our websites or apps; or any features, products, graphics, text, images, photos, audio, video, location data, computer code, and all other forms of data and communications (collectively, “Services”).

BY USING THE SERVICES IN ANY WAY, YOU AGREE TO BE BOUND BY THIS AGREEMENT. If you do not accept and agree to be bound by all of the terms of this Agreement, including the Privacy Policy, posted at https://ikeono.com/terms-of-use and incorporated by reference herein, do not use the Services.

The terms of this Agreement are subject to change at any time. It is your responsibility to check periodically for any changes. Continued use of the Services shall constitute acceptance of any changes.

  1. Description of the Services

Ikeono, LLC enables businesses to send and receive text messages with their customers directly in their point-of-sale. These text messages range anywhere from service notifications, communications when items are ready to be picked up, automated customer feedback request, and marketing. The platform is integrated into the point-of-sale via Chrome and Firefox extensions and allows for messaging from the business’ current landline.

  1. Your Use of the Services
  1. Your Representations and Eligibility to Use Services

By registering and using the Services, you represent and warrant you: (i) have the authority and capacity to enter this Agreement; (ii) are at least 18 years old; and, (iii) are not precluded or restricted in any way from using the Services, either by law or due to previous suspension from the Services.

  1. Truthfulness of Information

You represent and warrant that all information you submit when using the Services is complete, accurate, and truthful. You are responsible for maintaining the completeness, accuracy, and truthfulness of such information.

  1. Limited Use of Services

The Services are only for the uses specified in this Agreement. You agree that you will not use our proprietary information or materials in any way whatsoever except for use of the Services in compliance with this Agreement. We reserve the right to investigate and take legal action in response to illegal and/or unauthorized uses of the Services.

  1. You agree that our Services contain proprietary information and material that we own and is protected by applicable intellectual property and other laws, including but not limited to trademark, copyright, patent, and trade secret laws.

  1. Our ownership extends to all content, features, and functionality on the website or app, and in our communications, that is protected or protectable under the law. This ownership expressly extends to our name, service marks, logos, trademarks (whether or not registered), and any other names associated with our Services or features.
  2. You agree that you will not use our proprietary information or materials in any way whatsoever except for use of the Services in compliance with this Agreement.
  3. In no way should your use of the Services be construed to diminish our intellectual property rights or be construed as a license or the ability to use the Services in any context other than as expressly permitted under this Agreement.
  1. Nature of Use of Services

You agree to only use our Services while complying in the following manner:

  1. Permission of Recipients: Prior to sending any message to a recipient through our Services, you confirm here that you will receive explicit and express consent from the recipient. You here agree to indemnify and hold us harmless for all damages, costs, expenses, and fees (including attorneys’ fees by the attorneys of our choice) resulting from or relating to your failure to secure such consent. Upon request, you agree to provide us confirmation of any consents you have received from those receiving or intended to receive messages through our Services.
  2. Unsubscribe: You confirm here that you will provide all recipients a written, opt-out feature to unsubscribe from future messages through our Services.
  3. Compliance with Applicable Law: You agree that you are solely responsibility for compliance with all applicable laws and regulations of any kind in the use of our Services. You further agree to only use our Services consistent with any legal limitations concerning the timing, frequently, and nature of the messages you send.
  4. Usage Limits: Consistent with your plan, we may limit your overage usage, the size of your messages, or other characteristics of the Services for the purpose of providing those Services as determined in our sole discretion.
  1. Prohibited Activities

You shall not engage in the following activities:

  1. Reproduce any portion of the Services in any form or by any means, except as expressly permitted in this Agreement or otherwise in writing by our authorized agent.
  2. Modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services in any manner, and you shall not exploit the Services in any unauthorized way.
  3. Use the Services for any unlawful activities or in violation of or failing to comply with any laws, regulations, or contractual provisions, or to induce others to do or engage in the same;
  4. Messaging or other use of the Services that infringes any intellectual property rights—including copyright, trademarks, and publicity rights;
  5. Use the Services to promote violence, degradation, subjugation, discrimination or hatred against individuals or groups based on race, ethnic origin, religion, disability, gender, age, veteran status, sexual orientation, or gender identity;
  6. Access another’s account without permission of us or that person;
  7. Use the Services to transmit or otherwise disseminate adult or pornographic content, whether via text or image;
  8. Use the Services to contact emergency services, such as 911, fire, police, ambulance, or related services, or any other entities which such contact is restricted by law;
  9. Using software, equipment, or other services in conjunction with our Services to initiate automated messages (that is, such messages without direct human engagement in initiating messages through our Services)—this restriction does not apply to any automatic messages set up within and through our Services;
  10. Abuse of keywords in our opt-in feature, if implemented, or otherwise, including registering keywords that are irrelevant or where such keywords are not used for more than 2 weeks;
  11. Use the Services in any manner to disguise the source or origin, including through manipulated identifiers or false headers;
  12. Publish or allow to be published malicious code intended to damage any mobile device, browser, computer, server, or network hardware;
  13. Spam any comments section with offers of goods and services, or inappropriate messages;
  14. Use manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any portion of the Services;
  15. Decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services; and,
  16. Solicit passwords or personal identifying information for commercial or unlawful purposes from others or disseminate another person’s personal information without that person’s permission.
  1. Content License

You here unconditionally grant to us a non-exclusive, perpetual, irrevocable, assignable, worldwide, fully-paid right and license—with the right to sublicense through multiple levels of sublicensees—to (a) content you provide in messages for the purpose of us delivering or processing such messaging through our Services, including storage of such content as part of that service; and, (b) content you provide for publicly-accessible portions of our Services for the purpose of us—in its original or in a modified form— using, distributing, or otherwise publishing or publicizing that content to operate the Services or to promote, demonstrate, or advertise the Services.

  1. Payments
  1. Fee Schedule

The amount of your fees is set forth for the plan you select at https://ikeono.com/pricing/ or, in the case of a custom plan, under our agreed-upon rate for the individual services you select. Pricing is subject to change in our sole discretion and will be communicated 30 days before any such changes will occur, in writing directly (for example, via email to the address you have provided us) or through our pricing structure as made available online.

  1. Monthly Auto-renewal

Your services will start the day you render your first payment. We will automatically repeat that charge on that same day each month (“Billing Day”) for the coming Billing Period. The Billing Period is the time from and including the current Billing Day to the day before your next Billing Day.

By engaging our Services, you authorize us (or our payment processing service) to automatically charge the credit card or other payment method you provide us each month on the Billing Day for the monthly plan fee for the coming Billing Period.

We will provide you overage fees for the calendar month on or about the first day of the following month. Unless you inform us of any issues, in writing, within 7 calendar days of us sending your overage statement, we will automatically charge the credit card or other payment method you provide us for those overage fees. By engaging our Services, you authorize us to do so.

Monthly billing occurs through our payment processing service (currently, Stripe). Where you sign up on the 29
th or 30th of the month, you will be billed monthly according to the payment processing service’s protocol; at present, that means you will be billed on the 28th of subsequent months.

  1. Cancelling or Changing Service Plan

You may instruct us to cancel or change your plan at any time by informing us in writing at hello@ikeono.com. If you cancel your plan prior to the end of a Billing Period, your Services under your plan will extend until the end of that Billing Period. You will not receive a pro-rated refund for any portion of a Billing Period after cancellation.

If you change your service plan during a Billing Period to a plan with fewer messages/features, that plan change will not occur until the next Billing Period. If you change your service plan during a Billing Period to a plan with more messages/features, that plan change will occur as soon as possible and you will be billed for the monthly fee difference at that time for the current Billing Period. You will not receive any pro-rated deduction in the Billing Period in which you changed your plan for any period in which you received Services under your previous plan.

  1. Third-Party Payment Services

We utilize third-party payment services (currently, Stripe) to handle payment services. If you have any issue with charges, those issues need to be addressed between you and the third-party payment service. We are not responsible for the payments or any related disputes.

  1. Disclaimers, Waivers, and Indemnification
  1. Appropriateness of Use/Content

You are solely responsible for legal compliance of your use of our Services—including the act of sending messages as well as their content, including text and images. You are further solely responsible for any consequences of your messages, including liability for their content and for the act of sending them.

You agree here that you will not use or rely on our Services or any representation from us for whether your actions and use of the Services comply with any applicable law. We have no obligation to prescreen content. You agree not to hold us liable for, and waive any claim based upon, your misuse of the Services or your failure to comply with any law in the use of our Services.

  1. No Guarantees, Endorsements, or Investigation

We do not provide any guarantees or endorsements of any third-party or user, or its content or links, provided through the Services. We do not investigate or otherwise review any user or third-party or its content. You accept all risks associated with any third-party, and its content, links, or related information. You agree not to hold us liable for any conduct or content of third parties or other users.

  1. Lightspeed Point of Sale Interface and Other Compliance

Our Services currently provide additional features for your use of the Lightspeed Point of Sale interface (including that software and services, “Interface”). We do not control the Interface, including any updates, modifications, or availability of that Interface. We are not licensed or otherwise affiliated with the provider of the Interface. Our intent is to remain compatible with future updates of the Interface, but as we are not in control of those updates, we cannot guarantee such compatibility. We are not responsible for any damages or delay caused by our Services integration with the Interface and you here waive any claim relating to that. If the provider terminates the Interface, you are responsible for cancelling your plan with us and you are still subject to the cancellation terms set forth herein.

Similarly, we are not responsible, or liability for damages or delays stemming from, compliance with any third-party service, including your telephone service provider. You are solely responsible for such compliance.

  1. Third Party Disclaimers and Waivers

We use third-party providers to provide various aspects of our Services, as provided for here and in our Privacy Policy. You are bound by any terms associated with the services of those third-party providers and are responsible for reviewing those terms. Those terms contain liability waivers, disclaimers, and additional terms. You are solely responsible for confirming and adhering to those terms.

  1. Disclaimer of Warranties

All information and services are provided on an “as is” basis without warranty of any kind, either express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. In addition, we do not make any warranty that access to the Services will be uninterrupted, secure, complete, error free, or meet your particular requirements.

  1. No Duty to Retain

We have no duty to store or retain any content, including text messages, images, and related metadata, or information, including customer contact information, that you provide to or that would be generated through our Services.

  1. Waiver of Liability

You waive any liability of or claims against us for any injuries or damages (including compensatory, punitive, special, or consequential damages) you sustain as a result of or associated with using the Services. You waive any claim or liability stemming from our negligence.

Where our Services incorporate or utilize any information, software, or content of a third party, you waive any liability or claim against us based upon that information, software, or content—including based upon the negligence of that third party.

  1. Scope of Waiver

You understand and agree the above waiver extends to any claim of any nature or kind, known or unknown, suspected or unsuspected, regardless of when the claim first existed.

  1. California-Specific Waiver and Notices

You understand and agree the above waiver includes waiver of a claim of the type identified under California Civil Code, Section 1542, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”

The following notice is for California users: Pursuant to California Civil Code Section 1789.3: If you have a question or complaint about us, our products, or our Services please contact us at support@ikeono.com. You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer affairs by telephone at (800) 952-5210 or by mail at the Department of Consumer Affairs, Consumer Information Division, 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834.

  1. Indemnification

If we are subject to a complaint, a demand, mediation, arbitration, litigation, or other pursuit based upon your conduct relating to or from use of our Services, you agree to indemnify us for all costs, expenses, and fees (including attorneys’ fees by the attorneys of our choice) we expend in defending ourselves against or otherwise addressing such pursuit. Such conduct or use includes, but is not limited to, your violation of this Agreement; your use of the Services and any consequence that produces; your use of intellectual property on or through the Services; and, any such actions performed by your agent or representative, or at your direction. You agree to indemnify us as soon as we incur the costs, expenses, and fees, whether those are billed by event, or in week, month, or some other interval.

  1. Limitation of Services and Termination
  1. Right to Remove Content

We reserve the right, but have no obligation, to review your messages and content within our Services, for the purpose of compliance with our terms, including those here and in our Privacy Policy, and any applicable laws.

At any time and without advance notice, we reserve an unrestricted right to refuse the use of our Services for any message or content, or to remove content, in our sole discretion.

Nonetheless, we are not responsible for any third-party content and make no commitment or assurances that we will remove, monitor, or assess any specific third-party content, regardless of its content or character.

  1. Right and Grounds to Terminate Access

To protect us and our users, we reserve an unrestricted right to refuse, terminate, block, or cancel your application to, account with, or access to the Services at any time, with or without cause. You acknowledge here that you have no right: to use of the Services should we terminate or suspend your account. Primary reasons warranting termination include (and primary reasons leading to suspension pending investigation of claims or evidence of the following):

  1. You violating any of the provisions of this Agreement;
  2. You hindering or interfering with us in providing our Services;
  3. You making misrepresentations, lying, or deceiving us; and,
  4. You using the Services in violation of: any international, federal, state, or local law; or applicable regulation, rule, or order by any regulatory, governing, or private authority, or a court of competent jurisdiction.
  1. No Right to Services or Content

You neither possess nor retain any ownership of or rights to the Services. Upon termination, you have no right to access, retain, or have returned any such information.

  1. Survival

After termination, we retain all rights to content as specified in this Agreement. Sections II—VI of this Agreement survive after termination.

  1. General Provisions
  1. DMCA Violations

If you believe any of our content infringes on your copyright, you may request removal by contacting the following address: support@ikeono.com. We will respond promptly to reports providing sufficient information for investigation and response, which must include at least:

  1. Identification of the owner of an exclusive right that is allegedly infringed.
  2. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  3. The name of the person above, email address, telephone number, mailing address, and the company (if any) to which you are affiliated relating to the alleged infringement.
  4. Identification of the alleged infringement, including the specific text or image alleged to be infringement.
  5. The URL or other clear designation of the location of the alleged infringing use.
  6. Your statement that, in your good faith belief, the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  7. Your statement, under penalty of perjury, that: the information you provide is accurate and you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  1. Successors and Assignees

We may assign this Agreement to an affiliate or in connection with a merger or sale of all or substantially all of our corresponding assets. You may not assign this Agreement.

You agree that any waiver or protections afforded to us are also provided to our affiliates, directors, officers, principals, employees, agents, and successors in their roles and relationship with us. You also acknowledge that all waivers and agreements bind not only you, but any successors, heirs, agents, and other representatives.

  1. Arbitration

The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) or the Service shall be binding arbitration administered by the American Arbitration Association. You may not under any circumstances commence or maintain against us any class action, class arbitration, or other representative action or proceeding. You understand and accept that, by agreeing to arbitration, you are foregoing your access to a trial by jury.

  1. Limitation of Liability

To the maximum extent permitted by law, in no event shall we or our agents be liable to you or any other person or entity for any direct, punitive, incidental, special, consequential, or exemplary damages. In no event shall our liability under this Agreement exceed the total amount of money paid to us by you under any subscription or fees for our Services.

  1. Governing Law and Venue

This Agreement will be governed by and construed in accordance with the laws of the State of Colorado. The venue for any disputes including mediation, arbitration, or litigation shall be Denver, Colorado. You agree to waive the following defenses to any action brought in Colorado: forum non conveniens and lack of personal jurisdiction.

  1. Waiver

If one party waives any term or provision of this Agreement at any time, that waiver will only be effective for the specific instance and specific purpose for which the waiver was given. If either party fails to exercise or delays exercising any of its rights or remedies under this Agreement, that party retains the right to enforce that term or provision at a later time.

  1. Severability

If any provision of this Agreement is invalid or unenforceable, whether by the decision of an arbitrator or court, by passage of a new law, or otherwise, the remainder of this Agreement will remain in effort and be construed and enforced consistent with the purpose of this Agreement, to the fullest extent permitted by law. Furthermore, if a provision is deemed invalid or unenforceable, you agree that provision should be enforced to the fullest extent permitted under the law, consistent with its purpose.

  1. Understanding of Agreement

You acknowledge that you understand the terms and conditions of this Agreement. You also acknowledge that you could discuss these provisions with a lawyer at your own expense prior to entering into this Agreement, and have either done so or chosen not to do so in entering this Agreement. Regardless of your choice, you intend to be fully bound by this Agreement.

  1. Entire Agreement

This Agreement, together with the Privacy Policy, constitutes the entire agreement between us, and supersedes all prior agreements, representations, and understandings, oral or written, between us.