Please read these Terms of Service (the “Terms”) carefully as this is a legal agreement between you, on behalf of yourself and the and the entity that you represent (collectively, “you”, “your” or “yourself”), and Binary Ventures, Inc., d/b/a Call Cowboy (“Call Cowboy”, “we”, our” or “us”). These Terms govern your access to and use of our website ( www.callcowboy.com ) (the “Site”), and our services, software, applications, technology, and the technical and communications platform(s) we make available on and through the Site or our mobile app (collectively, the “Platform”).
By accessing or using the Site, or otherwise accessing, registering for, or using the Platform, you agree to be bound by these Terms. These Terms affect your legal rights and obligations, so if you do not agree to these Terms, do not access or use the Site or Platform. Without these Terms, we would not make the Site or the Platform available to you.
Arbitration & Class Waiver Notice: Except for certain types of disputes described in the arbitration clause below, you agree that disputes between you and us will be resolved by mandatory binding arbitration and you waive any right to participate in a class-action lawsuit or class-wide arbitration.
No Emergency Calling: Do not use the Platform or any services, including any telephone numbers to which you have access through the Platform, to call emergency services. You must make alternative communications arrangements to make emergency calls. You acknowledge and agree that the services are not a substitute for a traditional telephone and that you will not use the platform or services to make emergency calls using 911 or through other telephone numbers. Your further agree that you will advise any users of the services that the services do not provide emergency calling functionality.
Auto-Renewal: Your subscription to services auto-renews on a monthly basis, which will result in recurring charges to your payment card each month on the same date of the month as your original purchase. You may cancel the auto-renewal and recurring monthly charges by closing your account within the Platform, by calling us at [ 1-855-782-0983 ] or by emailing us at email@example.com at least five (5) business days prior to the date of the month on which your subscription is scheduled to renew . Any cancellation of the monthly auto-renew is at your option and is without cost or penalty, provided you cancel timely before the next month subscription fees are automatically charged. For additional information, please see Section 5.B. below.
- Platform and Services.
- Platform. Call Cowboy provides services via the Platform that allow you to contact and send messages to your customer base through telephony services, calls, mobile text messaging services, direct-to-voicemail services, and other mobile communication services, as well as tools to manage your contact list, manage automated responses from your customers, and manage your “do not call” lists. We reserve the right to modify, limit the availability, or terminate the Platform, or any portions of the Platform, including any services or features provided through the Platform (such as preview dialers, power dialers, automatic dialers, and predictive dialers) for any reason, at any time, and without liability to you. CALL COWBOY IS ONLY A PLATFORM TO FACILITATE MESSAGING AND COMMUNICATIONS. YOU HAVE SOLE RESPONSIBILITY AND LIABILITY FOR THE CONTENT AND TRANSMISSION OF YOUR MESSAGES AND COMMUNICATIONS.
- Compliant Use of the Platform.(a)The services offered through the Platform are subject to a number of local, state, federal, and foreign laws, regulations, rules, ordinances, directives and orders or various governments and agencies (“Laws”). WE DO NOT PROVIDE LEGAL ADVICE AND WE MAKE NO REPRESENTATIONS ABOUT THE PLATFORM OR ITS ABILITY TO COMPLY WITH THESE LAWS. YOUR USE OF THE PLATFORM DOES NOT ENSURE YOUR COMPLIANCE WITH THESE LAWS.(b)IT IS YOUR RESPONSIBILITY ALONE TO ACCESS AND USE OUR SITE AND PLATFORM AND THE SERVICES AVAILABLE IN ACCORDANCE WITH APPLICABLE LAWS, INCLUDING WITHOUT LIMITATION, PALLONE-THUNE TELEPHONE ROBOCALL ABUSE CRIMINAL ENFORCEMENT AND DETERRENCE ACT (TRACED ACT), THE TELEMARKETING SALES RULE (TSR), THE TELEPHONE CONSUMER PROTECTION ACT (TCPA) AND THE CONTROLLING THE ASSAULT OF NON-SOLICITED PORNOGRAPHY AND MARKETING (CAN-SPAM) ACT OF 2003. AS FEATURES AND FUNCTIONS OF THE PLATFORM, AND SERVICES AVAILABLE THROUGH THE PLATFORM CHANGE, YOU MUST EVALUATE WHETHER AND HOW YOU CAN USE SUCH FEATURES AND FUNCTIONS, INCLUDING ANY SETTINGS AND ACCOUNT PREFERENCES, TO ENSURE COMPLIANCE WITH LAWS. AS AN EXAMPLE, THE PLATFORM MAY ALLOW YOU TO CALL MULTIPLE LINES SUCH THAT YOU MUST ENSURE THAT YOU DO NOT ASSIGN LINES FROM THE SAME BUSINESS TO SIMULTANEOUS CALLS IN VIOLATION OF LAWS.(c)WE MAKE NO REPRESENTATION ABOUT WHETHER THE PLATFORM IS OR MAY BE CONSIDERED AN “AUTOMATED DIALING SYSTEM” OR WHETHER USING THE PLATFORM IS OR MAY BE CONSIDERED INITIATING OR MAKING A CALL AS CONTEMPLATED BY THE TCPA OR SIMILAR LAWS. YOU SHOULD CONSULT YOUR LEGAL COUNSEL FOR SUCH A DETERMINATION. YOU ACKNOWLEDGE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL ACTS AND OMISSIONS TAKEN BY OR UNDER YOUR ACCOUNT AND ANY VIOLATIONS OF APPLICABLE LAWS THAT MAY OCCUR IN CONNECTION WITH YOUR ACCOUNT OR USE OF THE SITE OR PLATFORM BY YOU OR YOUR PERSONNEL. YOU REPRESENT AND WARRANT THAT YOU WILL COMPLY AT YOUR EXPENSE WITH ALL LAWS THAT APPLY TO YOU OR YOUR BUSINESS OR USE OF THE PLATFORM, INCLUDING, WITHOUT LIMITATION, TRACED ACT, TSR, TCPA, AND CAN-SPAM.(d)Call Cowboy maintains a no-tolerance policy toward spam and your use of the Platform to send spam may result in termination of your account and access to the Platform. You acknowledge and agree that you have sole responsibility for obtaining any consents for all phone numbers that you upload and contact through the Platform and for complying with any terms and/or conditions that may govern the consent you received to contact these phone numbers.
- Modification of these Terms. We may, at our sole discretion, change or modify these Terms at any time. If we make changes to these Terms, we will provide notice of such changes, such as by sending a notification, posting a notice on the Platform, or updating the “Last Updated” date above. Unless otherwise stated, updated Terms will be effective upon your next monthly renewal. We encourage you to frequently review the Terms to ensure you understand the terms and conditions that apply to your use of the Site or Platform. By continuing to access or use the Platform after those changes become effective, you agree to be bound by the revised Terms. If you do not agree to the revised Terms, you may cease use of the Platform or otherwise cancel your account or your subscription as set forth below.
- Registration. In order to fully access or use the features and services available through the Platform, you will be required to first register for an account through our online registration process. To use and access the Platform, you must be at least eighteen (18) years of age and authorized to bind the specific entity on whose behalf you are accessing and using the Platform.
- Registration Information. You will select your own password at the time of registration. You should select a strong password. Your selected password must meet certain minimum requirements, but we do not guarantee the security of any password. We may reject the use of any password, username, or e-mail address for any reason in our sole discretion. You will provide true, accurate, current, and complete registration information about yourself and any entity that you represent in connection with the registration process and update it continuously and promptly to keep it accurate, current, and complete.
- Identity Proof. We reserve the right to investigate or otherwise require proof of your identity, documentation of your organization’s legal status and corporate standing, and ownership of any caller-id number you may bring to the account, either during the registration process or at any time thereafter. If you fail to provide such information, we may not allow you an account or may terminate or suspend your account and access to the Platform as otherwise permitted by these Terms.
- Use of Your Account. You are solely responsible for all activities that occur under your account, password, or username, whether or not you authorized the activity. You are solely responsible for maintaining the confidentiality of your password and for restricting access to your account. You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security. You will not sell, transfer, or assign your account or provide any third party with access to your account.
- Access via Mobile Device. You may access your account from your mobile device. However, your use of your mobile device to access your account may result in data or other charges from your carrier. In addition, your carrier may prohibit or restrict certain functions accessed via your mobile device and certain Platform features may be incompatible with your carrier or mobile device. You agree that as part of your use of your mobile device to access the Platform, you expressly consent to us, without limitation, sending communications to any phone number you provide to us using SMS (text messages), an automated telephone dialing system, or featuring an automated or prerecorded voice. YOU REPRESENT AND WARRANT THAT THE PHONE NUMBERS THAT YOU HAVE PROVIDED US AS PART OF YOUR REGISTRATION ARE YOUR CONTACT NUMBERS AND THAT YOU ARE PERMITTED TO RECEIVE CALLS, TEXTS, AND OTHER MESSAGES AT EACH PHONE NUMBER. You agree to immediately alert us whenever you stop using a phone number. Further, we may collect information related to your use of the Platform via your mobile device.
- Subscription Term & Cancelation Rights.
- Term. Your subscription to the Platform will commence as of the date your payment for a subscription is received. Your subscription will be prepaid on a month-to-month basis until such time as you cancel the subscription as further explained below (the “Subscription Term” ).
- Auto-Renew. Your Subscription Term will automatically renew for additional consecutive months at the end of your Subscription Term continuously and indefinitely until you choose to cancel your account. As a result, your payment card on file will be charged on a recurring monthly basis, on the same date every month as the date of your original purchase, unless you cancel your subscription at least five (5) business days prior to the date of the month on which your Subscription Term is scheduled to renew.
- Notice of Subscription Changes. We may cease providing certain subscription packages or features of the same at any time. We make no guarantee that any subscription you purchase will continue to be available. We will provide you notice of changes to your subscription package prior to renewal. If you do not wish to accept a price or subscription package change made by us, you may cancel your subscription, otherwise you will be deemed to have consented to the price/subscription package change and authorize us to charge the new fees to your payment method.
- Termination or Suspension.(a)You have the right and ability to cancel or otherwise upgrade/downgrade your subscription to the Platform at any time using the functionality available in your account settings. In the event that you cancel a subscription in the middle of your Subscription Term, you will not be entitled to receive a refund for the unused portion of the remainder of that Subscription Term.(b)We reserve the right to suspend or terminate your account or access to the Site or Platform at any time, at our sole discretion and without prior warning, (1) if we reasonably believe you or your account activity violates these Terms or applicable Law, (2) you are investigated by any law enforcement or regulatory agency, (3) if you fail to make any payments when due or your credit or debit card fails to process, (4) if you become subject to any petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (5) if we believe that your account activity creates any security threat or vulnerability to Call Cowboy or our network, Platform or any third party or is otherwise harmful to the interests of Call Cowboy.(c)No fees will be refunded in the event of any suspension or termination and any such suspension or termination will not otherwise affect your obligations to us under these Terms. At a minimum, to the extent permitted by applicable laws, we will provide you notice of any such suspension or termination following the same.
- Effect of Cancelation, Termination or Suspension. Upon cancelation, suspension, or termination of your account or Subscription Term, you will no longer have access to the Platform, all rights granted to you under these Terms will cease immediately, and you must immediately discontinue use of the services. Upon suspension, cancelation, or termination of your subscription and account, we may delete or otherwise destroy Your Content (defined below) and your account data at our discretion subject to our legal and other compliance obligations which may require us to keep Your Content for up to four (4) years or more. If you have unused fees or credits on your account as of the date of any cancelation or termination, those fees will not be refunded to you.
- Service Features.
- Voicemail Delivery. Through your use of the Platform, we provide “straight to voicemail” messages, which are sometimes referred to as “ringless” voice messages. We make no representation or guarantee as to whether the target’s phone will ring, whether the target’s voicemail system will show a missed call notification, or whether the target’s voicemail system will actually deliver the message to the target. We have no control over whether telecommunications or voice mail providers filter or block your message or otherwise block ultimate delivery of your message or communication to the target contact. When you send messages through this service, we will designate individual messages as “delivered” and will debit funds from your account if during delivery:(a)We detect that a voicemail system is present for a given phone subscriber;(b)We detect that the voicemail system is ready to receive a voicemail message; and(c)The connection to the voicemail system stays open for the full duration while we transmit your voicemail recording.As a result, you may be charged for messages that are not received by your target contact.
- No Emergency Calling. If you purchase exclusive access to a telephone number from us you understand and agree that it is a voice-over-internet-protocol (VOIP) number, which does not offer traditional dial tone functionality. The Platform and services are not a replacement for traditional wireline services, nor are they a replacement for cellular services. YOU CANNOT MAKE EMERGENCY CALLS USING THE PLATFORM OR OUR SERVICES. IF YOU ATTEMPT TO MAKE A 911 CALL WHILE USING THE SERVICES FROM YOUR DESKTOP OR LAPTOP COMPUTER, YOU WILL RECEIVE AN ERROR MESSAGE STATING THAT THE CALL CANNOT BE COMPLETED. IF YOU ATTEMPT TO MAKE A 911 CALL USING THE OUR MOBILE APPLICATION ON YOUR MOBILE DEVICE, YOU WILL RECEIVE AN ERROR MESSAGE STATING THAT THE CALL CANNOT BE COMPLETED. Use of our services from a cellular phone does not interfere with your ability to place a 911 call from your mobile device as you would typically place such a call. It is only if you attempt to place an emergency call using the services through the actively running Platform that such a call will not complete. You agree to advise any users of the Platform that the Platform and its services do not provide emergency calling functionality. Accordingly, you must ensure that you and any other users of the Services have other communications services available to you or to them so that you and they are able to place emergency calls.
- Pooled Numbers. The Platform has a pool of VOIP phone numbers that are shared between all customers when sending outgoing communications or other messages. We may modify, add or remove numbers from this pool in our discretion. If you elect to use one of the pooled numbers in using the Platform (as opposed to your own proprietary VOIP number), the Platform will attempt to select a number from the pool that is in close geographic proximity to the contact target. We cannot assure that there is or will be a number in the pool in the approximate geographic proximity of the contact target. In addition, we cannot assure that you that any number you have previously from the pool will remain available via the Platform for future use.
- Links and Connection to Third Party Service. The Platform allows you access to an open API service for you or your developers to directly integrate the Platform into other third party software, services or applications of your choice. If you choose to use such integration feature, or otherwise access such third party software, services, applications, websites or materials, or utilize this API, you do so at your own risk. We do not control the features, functionality or user experience within any third party platform, software or service, nor are we responsible or liable for any such third party platform, software or service, even if connected or integrated with our Platform via the API service. We also do not and cannot control any claims or representations made about our Site, Platform or services by any such third party. No third party is authorized to make any claim, representation or warranty about our Site, Platform or services. In addition, there may be links from the Site or Platform, or from images or content within the Platform to third party websites, which websites are outside of our control.
- Non-Refundable. All fees paid are non-refundable. Any refunds are solely within our discretion.
- Pricing. Current subscription plans and fees for use of the services via the Platform are posted on our Site, and may change from time to time at our sole discretion based on a number of factors including your usage level on the Platform.
- Credit Card Terms. All payments must be made through a credit or debit card or other payment mechanism we accept at the time you sign up. Our third party credit card/payment processor will automatically bill your credit card or other form of payment submitted during each Subscription Term at the then-current rate for your subscription and monthly thereafter upon the renewal of your Subscription Term, or upon any other purchases through the Platform. YOU EXPRESSLY AUTHORIZE US AND OUR PAYMENT PROCESSORS ON OUR BEHALF TO CHARGE YOUR PAYMENT TO YOUR CREDIT CARD ON FILE. We have no responsibility or liability if the applicable financial institution declines your payment, however, we will notify you if your payment is declined. In order to avoid recurring monthly charges, you must cancel your subscription and close your account as set forth in Section 5.B. above.
- Fees and Taxes. You are responsible for paying any taxes or charges imposed on your purchases, including, but not limited to, toll -free, local, long distance, international minutes, additional feature charges, 411, 911, and operator assisted charges, directory assistance charges, universal service fund fees, and for all taxes including sales, use or value-added taxes. We will automatically charge and withhold the applicable fees and taxes to be delivered to addresses within and any states or localities that it deems is required in accordance with our order policy in effect at the time of purchase.
- Late Payment. In addition to any other termination rights stated elsewhere in these Terms, we reserve the right, without notice, to immediately close your account and terminate your access to the Platform as set forth above if we do not receive payment.
- Payment Disputes. All charges are deemed accepted and approved unless you notify Call Cowboy of any discrepancies within sixty (60) days after they first appear on your credit card statement.
- Promotions. We may offer promotional subscriptions to access the Platform at special discounted prices. If you sign up for a promotional subscription, your rights to use the Platform are limited by the terms of such promotional subscription. Please be aware that when you sign up for a promotion, you may be required to provide your credit card number and we will still process your credit card to confirm that it is valid. When we process your credit card to confirm its validity, your credit card company may place a temporary hold on your account for your first payment. Please contact your credit card company if you have questions. Please note that we do not provide price protection o refunds in the event of a price drop following a promotional offering.
- Messages. Depending on the subscription plan you choose, you will be allotted a number of messages (both voicemail and text messages) you can send a month. Once you reach your monthly maximum allotted messages, you will be required to purchase an additional message bundle to continue use of the Platform during that calendar month and your card will be charged at that time. The price per message after you have exceeded your monthly allotment of messages is based on the current unit price of your chosen plan. If a text message exceeds the 150 characters permitted by text/SMS standards, such message will count as more than one message, such that each set of 150 characters in a text message will count as an additional text message against your account.
- Calls. Depending on the subscription plan you choose, you may also be allotted a number of outbound calls per month. Rates for outbound calls are dependent upon the jurisdiction you are calling and rates vary per country. Your account will be automatically debited at the applicable per minute rate for every outbound call. Numbers may be used for inbound calling. Inbound calls are also charged on a per minute basis rounded up to the next minute (60/60). In addition, inbound calls result in voicemail messages delivered to the number your designate, which voicemail messages also count towards your message allotment as set forth above.
- Unlimited Plans. We may from time to time offer unlimited message plans. Any unlimited message plan is subject to bandwidth limitations of the Platform such that, based on your usage, we may temporarily slow, throttle, or disable certain functionality of the Platform, particularly the speed of delivery of your messages (text or voice messages), calls, or the auto-dialer function.
- Credit on Account. In the event you have any unused credits on your account at the end of the month, we may allow you in our sole discretion to roll-over any unused credits or money on your account into the next Subscription Term. In the event you have such unused credits at the end of the month, we may deduct fees and expenses from your account for maintenance of your account. Should your access to the Platform or your account be terminated or suspended by us for any reason while you have fees or credits on your account, you acknowledge that you surrender your right to any unused fees or credits on your account.
- Use of Platform; Ownership Rights.
- Rights to the Platform. The Platform and the Site, and all respective content (including without limitation all text, audio, video, graphics, charts, photographs, interfaces, icons, software, computer code, applications, databases, trademarks, logos, slogans, names of products and services, documentation, other components and content, and the design, selection, and arrangement of content) are exclusively the property of Call Cowboy or its licensors, and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property laws.
Subject to your compliance with these Terms, we grant you a limited, nonexclusive, non-transferable, non-sub-licensable license to access and use the Platform. This license is revocable at any time as further contemplated by these Terms.
We do not grant you any other right or license to use the Platform or our Site or any other technology, software or other intellectual property or proprietary rights of Call Cowboy. Unauthorized use of the Platform is a violation of these Terms, which may result in the termination of your account, and may constitute a violation of Laws.
- Restrictions on Use of Platform. You will not: (i) reverse engineer, decompile, disassemble, reverse assemble, or modify any Platform source or object code or any software or other products, or processes accessible through any portion of the Platform; (ii) engage in any activity that interferes with another user’s access to the Platform or the proper operation of the Platform or Site, or otherwise causes harm to the Platform, the Site, Call Cowboy, or other users of the Platform; (iii) interfere with or circumvent any security feature of the Platform, or Site, or any feature that restricts or enforces limitations on use of or access to the Platform or the Site; (iv) attempt to gain unauthorized access to the Platform, other computer systems or networks connected to the Platform or Site, through password mining or any other means; (v) sell, resell, sublicense, share, rent or lease the Platform to any third party; (vi) access the Platform for purposes of monitoring its availability, performance, reliability or functionality, or for any other benchmarking or competitive purposes; (vii) use the Platform to violate applicable Law; or (viii) otherwise violate these Terms. You are responsible for any breach of these Terms by your employees or any other users accessing the Platform through you or your account, directly or indirectly.
- Your Content.(a)You are responsible for all third party contact information, messages, data, text, video, photos, audio and all other materials and information (including personal information of your users and contacts) that you upload to the Platform or is uploaded via your account (collectively, “Your Content”). As between you and us, you retain ownership of any proprietary or intellectual property rights that you hold in Your Content. You grant us a limited, non-exclusive, worldwide, sublicensable, royalty-free license, during the Subscription Term to reproduce, copy, display, transmit, share and otherwise use Your Content as necessary for our operation of Platform and provision of the services. You are solely responsible for maintaining backups and records of Your Content. We are not your system of record and have no liability or responsible for any loss or destruction of Your Content. You must maintain copies of all records required by Laws. You may download limited portions of Your Content at any time from the Platform. Upon your reasonable request, we can provide a download of Your Content to you in a form and format we reasonably select, subject to your payment of our then-current time and materials fees.(b)Pursuant to the California Consumer Privacy Act of 2018 (“CCPA”), we are your service provider and, with the exception of Usage Data as set forth below, only use Your Content for the provision of services to you under these Terms. We do not “sell” Your Content as contemplated by the CCPA. Upon your written notice to us, we will reasonably cooperate with you as required by the CCPA to respond to a consumer’s request to exercise rights under the CCPA and will request the same of our subcontractors. If any consumer requests under the CCPA are received by us, we will forward such request to you and direct the consumer to contact you directly.
- Usage Data. We collect various usage data and statistics regarding your use of the Platform and your account (“Usage Data”). We may use this Usage Data for any internal purpose, including marketing and advertising efforts, and may disclose this Usage Data provided any such disclosures are anonymized such that neither you nor any of your contacts are reasonably identifiable. Certain Usage Data pertaining to your account may be accessible via the Platform, but we otherwise have no obligation to provide you with copies of or access to any such Usage Data.
- Prohibitive Use. Call Cowboy prohibits any use of the Platform in connection with any of the following:(a)Activities that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, libelous, defamatory, scandalous, or abusive, or that violate any right of any third party, or are otherwise objectionable;(b)Storage or transmission of infringing, libelous, or otherwise unlawful or tortuous material, or material in violation of third-party privacy rights;(c)Pornography, sexual products, otherwise sexually explicit material, or escort services;(d)Illegal drugs or drug contraband;including CBD, or Hemp(e)Alcoholic beverages, especially any promotion of alcohol to persons under twenty-one (21) years of age;(f)Pirated computer programs, viruses, worms, Trojan horses, or other malicious or harmful code;(g)Instructions or materials for the assembly of bombs or other weapons;(h)Disclosure of anyone’s private or personally identifying information without such party’s prior express written consent (or parents’ prior express written consent in the case of a minor);(i)Material that displays any person under eighteen (18) years of age in an illicit or otherwise exploitative manner;(j)On the basis of the practices and standards of your industry and community, any illegal or improper promotion to persons under eighteen (18) years of age;(k)Products, services, or content commonly associated with unsolicited commercial messages (a.k.a. spam), including, but not limited to, online and direct pharmaceutical sales (e.g., health and sexual well-being products), work- at-home businesses, credit or finance management (e.g., credit repair, debt relief, stock and trading tips), mortgage finance, claims of lost bank accounts or inheritances, claims for unknown moneys or prizes, claims to recover lost money, and odds-making, sweepstakes, contests and gambling services (e.g., poker, casino games, horse and dog racing, college and professional sporting events);(l)Fraudulent, spoofed, untruthful, false or misleading advertising or commercial messaging, including without limitation those that exploit any pandemic, epidemic, or national emergency, such as COVID-19-related calling campaigns or “robocalls“;(m)Pyramid schemes or multilevel-marketing (a.k.a. MLM or network marketing) businesses, including, but not limited to, “get rich quick,” “build your wealth,” and “financial independence” offerings;(n)Objectionable content including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and any discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;(o)Advocation, promotion, or other encouragement of violence against any government, organization, group, or individual or any instruction, information, or assistance in causing or carrying out such violence;(p)Any product or service related to death (e.g., mortuaries and cemeteries);(q)Any product or service that is unlawful where such product or service or promotion thereof is received;(r)Images of authors, artists, photographers, or others without prior express written consent form the content owner or other content that violates or misappropriates the intellectual property or proprietary rights of any third party;(s)Any mention of any wireless carrier or any representation that copies or parodies any product or service of any wireless carrier;(t)Any actual or attempted phishing scheme, including without limitation those to gain access to personal information under false pretenses (such as IRS claims or refunds, money reclamation schemes, false debt collection attempts, or false litigation threats); or(u)Any mention of medicare or any related representation(v)Any debt recovery, lost funds or related industries(w)Any political attack messages such as activities that seek to attempt to or do harm any individuals or entities or are unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, libelous, defamatory, scandalous, or abusive, or that violate any right of any third party, or are otherwise objectionable;(x)Any other content, products, or services that Call Cowboy finds reasonably objectionable.
- Our Investigation and Cooperation Rights. We have no obligation to monitor Your Content or use of the Platform to ensure compliance with applicable Laws. However, we reserve the right in our sole and absolute discretion to monitor Your Content and your use of the Platform, including without limitation any and all messages created or sent at any time without prior notice to ensure that they conform to these Terms and the guidelines and policies pertaining to our Site and Platform. We also reserve the right, without any limitation, to investigate (and involve law enforcement authorities): (i) any suspected breaches of the Platform security or the information technology or other systems or networks used to provide the Platform and services, (ii) any suspected violations of these Terms, (iii) any information obtained by Call Cowboy in connection with reviewing law enforcement databases, court orders or similar legal documents, or (iv) any matter requested by law enforcement authorities. We will cooperate with any law enforcement or regulatory investigations.
- Audit. We may audit your use of the Platform and Your Content at any time, including without limitation your policies and procedures for compliance with Laws, records of all consents and opt-ins, consent and opt-in processes, and other aspects of your business related to your use of the Platform. You will provide us with all information, written documentation, and access to interview any personnel related to the foregoing upon our reasonable request at no cost to us.
- Tracebacks. Customer will cooperate with the Industry Traceback Group (“ITG”) overseen by USTelecom; (ii) respond promptly to requests for Traceback Information received from the ITG administrator; (iii) conform to ITG policies and procedures; and (iv) respond to “Do Not Originate” or “Trace Forward” requests made by the ITG administrator. “Traceback Information” means information relevant to determining the origin of suspected illegal robocalls or other malicious traffic, including the identities of immediately preceding service providers in the call path of such traffic, as well as call volumes originating from suspicious telephone numbers or transiting a service provider’s network.
- Rights to the Platform. The Platform and the Site, and all respective content (including without limitation all text, audio, video, graphics, charts, photographs, interfaces, icons, software, computer code, applications, databases, trademarks, logos, slogans, names of products and services, documentation, other components and content, and the design, selection, and arrangement of content) are exclusively the property of Call Cowboy or its licensors, and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property laws.
- Support and Customer Service.
- Uptime. Except as otherwise provided herein, we will: (i) use commercially reasonable efforts to make the Platform available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond our reasonable control, including, without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, pandemics, epidemics, quarantines, Internet service provider failures or delays, or denial of service attacks.
- Support. Support is provided through self-service features of the Platform. If you request additional support, we will provide support to questions submitted to firstname.lastname@example.org as we deem feasible. You acknowledge that the provision of customer support is at Call Cowboy’s sole discretion and that we have no obligation to provide you with customer support of any kind. Our ability to respond to support requests depends on a number of factors, many of which are beyond our control. As a result, we make no representation or guarantee as to when or whether we will be able to respond to or resolve your support request.
- Subcontractors. You acknowledge that we may, engage third party suppliers and other vendors and subcontractors (collectively, “Subcontractors” ) from time to time to provide certain services offered as part of the Platform or to otherwise host the Platform or the services available. Call Cowboy supervises such services and endeavors to guard against any loss to you as the result of the failure of Subcontractors to properly execute their commitments, but we are not responsible for their failure, acts or omissions and cannot guarantee any Subcontractor’s performance.
- Dispute Resolution.
THIS SECTION IS DEEMED TO BE A “WRITTEN AGREEMENT TO ARBITRATE” PURSUANT TO THE FEDERAL ARBITRATION ACT. YOU AND CALL COWBOY AGREE THAT WE INTEND THAT THIS SECTION SATISFIES THE “WRITING” REQUIREMENT OF THE FEDERAL ARBITRATION ACT. THIS SECTION CAN ONLY BE AMENDED BY MUTUAL WRITTEN AGREEMENT SIGNED BY BOTH PARTIES.
- Informal Dispute Resolution. If any controversy, allegation, or claim arises out of or relates to the Platform, the Site, use of either the Platform or Site, services provided by Call Cowboy, Your Content, or these Terms, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, negligence, fraud, any other intentional tort or common law), constitutional provision, respondeat superior, agency or any other legal or equitable theory, and whether arising before or after the effective date of these Terms) (each, a “Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. If no such contact information exists or if such information is not current, then we have no obligation under this Section 10(A). Your notice to us must be sent to: Call Cowboy, 1309 Coffeen Avenue STE 1525, Sheridan, WY 82801 (Attn: Legal Department). Except as set forth in Section 10(D) below, for a period of sixty (60) days from the date of receipt of notice from the other party, Call Cowboy and you will engage in a dialogue in order to attempt to resolve the Dispute, though nothing will require either you or Call Cowboy to resolve the Dispute on terms with respect to which you and Call Cowboy, in each of our sole discretion, are not comfortable.
- Binding Arbitration. Except as set forth in Section 10(D) below, if we cannot resolve a Dispute as set forth in Section 10(A) within sixty (60) days of receipt of the notice, then any and all Disputes arising between you and Call Cowboy must be resolved by final and binding arbitration. The Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes between Call Cowboy and you regarding these Terms (and any Additional Terms) and the Platform and Services, including the No Class Action Matters section below. By agreeing to arbitrate, each party is giving up its right to go to court and have any dispute heard by a judge or jury. The arbitrator, and not any court, has exclusive authority to resolve any dispute relating to the enforceability or formation of these Terms and the arbitrability of dispute between the parties.
A Dispute will be resolved solely by binding arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”), in accordance with the then-current streamlined Arbitration Rules and Procedures (“Rules”) of, or by any other arbitration administration service that you and an officer or legal representative of Call Cowboy consent to in writing. If an in-person arbitration hearing is required, then it will be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable Rules; but if applicable Rules or laws require Call Cowboy to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then Call Cowboy will have the right to elect to pay the fees and costs and proceed to arbitration. The arbitrator will apply and be bound by these Terms, and will determine any Dispute according to applicable law and facts based upon the record and no other basis, and will issue a reasoned award only in favor of the individual party seeking relief and only to the extent to provide relief warranted by that party’s individual claim. Issues relating to the enforceability of the arbitration and class action waiver provisions contained herein are for the court to decide.
- Limited Time to File Claims. To the fullest extent permitted by applicable law, if you want to assert a Dispute against us, then you must commence it by delivery of the written notice set forth above within one (1) year after the Dispute arises or it will be forever barred. The parties expressly waive any contrary statute of limitations or time bars, both legal and equitable, to the Disputes.
- Payment Claims or Injunctive Relief. The foregoing provisions of this Section 10 will not apply to any legal action taken by Call Cowboy to seek (1) payment of fees due or (2) any injunction or other equitable relief in connection with, any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Platform, the Services, and/or Call Cowboy’s intellectual property rights, Call Cowboy’s operations, and/or Call Cowboy’s products or services and you agree that Call Cowboy may immediately file any such Dispute in a court of competent jurisdiction and seek injunctive or other equitable relief without posting of a bond, proof of damages, or other similar requirements.
- No Class Action Matters. You agree that you may bring claims against Call Cowboy in your individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding or as an association. Disputes will be arbitrated only on an individual basis and will not be joined or consolidated with any other arbitrations or other proceedings that involve any claim or controversy of any other party. There is no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that this restriction is unconscionable or unenforceable, then our agreement in Section 10(B) to arbitrate will not apply and the Dispute must be brought exclusively in court pursuant to Section 10(F). Notwithstanding any other provision of this Section 10, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained herein (described in this “No Class Action Matters” section), are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
- Federal and State Courts in Sheridan, Wyoming. Except where arbitration is required above, small claims actions, or with respect to the enforcement of any arbitration decision or award, any action or proceeding relating to any Dispute arising hereunder may only be instituted exclusively in the venue of the state or federal courts with jurisdiction in Sheridan, Wyoming. Accordingly, you and Call Cowboy consent to the exclusive personal jurisdiction and venue of such courts for such matters.
- Small Claims Matters Are Excluded from Arbitration Requirement. Notwithstanding the foregoing, either of us may bring qualifying claim of Disputes to recover the monetary jurisdictional limit (inclusive of fees, costs, and exemplary damages) of the small claims or equivalent court of competent jurisdiction.
- Customer Warranties.(a)You represent and warrant that the owners of the phone numbers to which you add to the Platform or to whom you transmit messages, call, or otherwise contact through the Platform (1) are not listed on any applicable Do Not Call Registry(s) and (2) have expressly consented or otherwise opted-in to the receipt of such messages as required by applicable Laws. You must maintain records and other proof of such consents and opt-ins from each contact for four years from the date of each message you send through the Platform and provide us with proof of such consents and opt-ins as we may request as further contemplated by Section 8.F.(b)You represent and covenant that you will not access or otherwise use any third-party list of phone numbers or otherwise engage in unsolicited messaging using the Platform in violation of applicable Laws. Additionally, you agree not to send messages to your contacts beyond the frequency represented in any disclosures or terms you have with such contacts.(c)You warrant and covenant that any message through the Platform must represent truthfully your identity, the identity of your organization, your product or service, availability of goods or services, pricing, benefits, and any other offering aspects in your messaging.(d)You represent, warrant, and covenant that any individuals requesting “Do-Not-Call” (“DNC”) status or otherwise requesting that you cease further communications with them will immediately be placed on your DNC list and you will not initiate any subsequent messages to any individuals after they make a DNC or other opt-out or stop request. Call Cowboy has no responsibility to process or notify you of any DNC or opt-out requests even if such requests are conveyed to you from your contacts via the Platform or numbers made available to you via the Platform. It is solely your obligation to monitor your account to implement such DNC and opt-out requests.(e)You represent, warrant and covenant that you will comply with all Laws as well as general industry best practices governing Your Content or promotion type and messages sent via the Platform.
- Warranty Disclaimers.(a)THE PLATFORM AND SITE, AND ALL SERVICES ACCESSIBLE THROUGH THE SAME, ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. NO THIRD PARTY IS PERMITTED OR AUTHORIZED TO MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR COVENANT WITH RESPECT TO THE SITE, PLATFORM, OR SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CALL COWBOY AND ITS SUBSIDIARIES AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, MEMBERS, MANAGERS, SHAREHOLDERS, AGENTS, AND licensors (COLLECTIVELY, THE “CALL COWBOY PARTIES” ) MAKE NO REPRESENTATIONS, WARRANTIES, ENDORSEMENTS, OR PROMISES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, SECURITY, AVAILABILITY, AND FREEDOM FROM COMPUTER VIRUS.(b)THE CALL COWBOY PARTIES DO NOT REPRESENT OR WARRANT THAT THE PLATFORM OR SITE OR SERVICES AVAILABLE VIA THE SAME WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SITE, PLATFORM, OR THE NETWORK OR INFRASTRUCTURE THAT MAKES THE SERVICES, SITE, PLATFORM AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, including, WITHOUT LIMITATION, VIRUSES. THE CALL COWBOY PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SITE OR PLATFORM IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SITE OR PLATFORM IS AT YOUR SOLE RISK. CALL COWBOY PARTIES DO NOT WARRANT THAT YOUR USE OF THE SITE OR PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION OR WILL ALLOW YOU TO COMPLY WITH THE LAWS OF ANY JURISDICTION AND CALL COWBOY PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES.(c)CALL COWBOY PARTIES DO NOT WARRANTY, GUARANTEE, OR REPRESENT THAT YOU WILL RECEIVE ANY PARTICULAR RESULT FROM USE OF THE SITE, PLATFORM, OR THE SERVICES AVAILABLE ON EITHER. IF YOU ARE UNHAPPY OR DISSATISFIED WITH THE SITE, PLATFORM, SERVICES OR ANY RESULTS OF THE SAME, YOUR SOLE AND EXCLUSIVE REMEDY IS TO CEASE USE OF THE SAME, EVEN IF SUCH REMEDY SHOULD FAIL OF ITS ESSENTIAL PURPOSE.(d)SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS.
- Limitations on Our Liability.
- EXCEPT WHERE PROHIBITED BY LAW, IN NO EVENT WILL CALL COWBOY PARTIES BE LIABLE FOR LOSS OF PROFIT, LOSS OF REVENUE, COST OF REPLACEMENT GOODS OR SERVICES, LOSS OF DATA OR YOUR CONTENT, LOSS OF GOODWILL, OR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES THAT RESULT FROM (A) THE USE OF, OR INABILITY TO USE, THE SITE OR THE PLATFORM; (B) THE PROVISION OF THE PLATFORM OR ANY MATERIALS AVAILABLE THEREIN; OR (C) THE CONDUCT OF OTHER USERS OF THE PLATFORM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND CALL COWBOY. THE SITE, PLATFORM AND SERVICES WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS.
- Indemnity. By agreeing to these Terms, you agree to indemnify and hold Call Cowboy Parties harmless from and against any and all damages, losses, costs, liabilities, fees, judgments, fines, penalties, settlements, interest, and expenses (including attorneys’ fees) that directly or indirectly arise from or are related to any claim, allegation, lawsuit, demand or investigation, and defend the Call Cowboy Parties from the foregoing, to the extent based upon or arising from: (i) Your Content; (ii) your use of the Platform or your activities in connection with the Platform or Site, including, without limitation, any communication or message sent by you through your use of the Platform; (iii) your breach or alleged breach of these Terms; (iv) your violation or alleged violation of any Laws, including without limitation, TRACED ACT, TSR, TCPA, or CAN-SPAM and any law enforcement or regulatory investigation regarding the same; (v) any alleged or actual infringement or misappropriation by you of any copyright, trademark, trade secret, trade dress, patent, publicity, privacy, or other right of any person or entity; (vi) any misrepresentation made by you; (vii) any other party’s access and/or use of the Platform with your account; and (viii) any failure to obtain consents required by applicable law or regulations prior to sending communications or messages using the Platform or any privacy violation.
- Feedback. You agree that submission of feedback, suggestions, ideas, or other information or materials regarding the Site or the Platform that you provide, whether by email or otherwise ( “Feedback” ) is at your own risk and we have no obligations with respect to such Feedback. Feedback will not be considered or maintained as confidential. You represent and warrant that you have all rights necessary to submit the Feedback. You grant us a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sub-licensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re- format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback in connection with the operation and maintenance of the Site and Platform without attribution, notice or any compensation or consideration to you.
- Confidentiality. Each party may have access to the other party’s information, which consists of information identified as such by the disclosing party and any information that by its nature is normally and reasonably considered confidential, such as information regarding product, methodology, research, customers, business partners, business plans and any information which provides a competitive advantage. The receiving party must protect the other’s confidential information with the same degree of care it uses for its own confidential information (and at least a reasonable degree of care), may use the information only to carry out these Terms, and may disclose the information only to its employees (or contractors bound by similar confidentiality obligations) with a need to know for that purpose. Confidential information remain the property of the disclosing party and will be destroyed upon request. Notwithstanding the above, neither party is required to accelerate the destruction of any archival back-up tapes created in the ordinary course of business, even if such archival back-up tapes contain confidential information. Information will not be deemed confidential information if it: (i) is disclosed by the disclosing party to others without restriction on use and disclosure; (ii) becomes known to the receiving party without restriction from a third party who is not in breach of a confidentiality agreement with the disclosing party; (iii) is already known by the receiving party at the time of disclosure; or (iv) is independently developed by the receiving party without any reliance on the confidential information of the disclosing party. Confidential information may be disclosed to the extent required by applicable law, provided the disclosing party is given reasonable advance notice of such disclosure.
- General Provisions.
- Governing Law. These Terms are governed by and construed in accordance with the laws of the State of Wyoming without regard to its conflicts of law provisions. Furthermore, these Terms will not be governed or interpreted in any way by referring to any law based on Uniform Computer Information Transactions Act (UCITA), any other act derived from or related to UCITA or the United Nations Convention for the International Sale of Goods, each of which is disclaimed in their entirety.
- Use Outside of the United States. Call Cowboy controls and operates the Platform and Site from its Wyoming-based offices in the United States of America. If you use or access the Platform or Site from other locations, you are doing so on your own initiative and are responsible for compliance with applicable local laws regarding your online conduct and acceptable content, if and to the extent local laws apply. The Site or Platform may describe services that are available only in the U.S.A. (or only parts of it) and may not be available worldwide.
- Export Control. No portions of the Platform may be downloaded, exported, or re-exported: (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoed goods, software, technology or services, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses).
- Communications. When you communicate with us electronically, such as via email and text message, you consent to receive communications from us electronically. Please note that we are not obligated to respond to inquiries that we receive. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. You agree that: (i) we may give you notices of new, revised or changed terms and other important matters by prominently posting notice on the homepage of the Platform, or in another reasonable manner; and (ii) we may contact you by mail or email sent to the address provided by you. You agree to promptly notify us if you change your email or mailing address.
- Assignment. We may assign our rights pursuant to these Terms, or delegate any obligations we have to third parties. These Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of Call Cowboy. Any purported assignment in violation of this Section is void and without effect.
- Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit signed, written waiver. No waiver of a breach of this Agreement by either party will constitute a waiver of any other breach of this Agreement.
- No Third Party Beneficiaries. These Terms do not create or confer any third-party beneficiary rights.
- Severability. Any provisions of these Terms held invalid will be severed and the remaining provisions continue in full force and effect.
- Survival. The provisions of these Terms that by their nature should survive the cancelation or termination of your subscription or your rights pursuant to these Terms, will survive.
- Contacting Us. If you have a question regarding using the Platform or Services, you may contact us via email at support@CallCowboy.com .