TERMS OF SERVICE
- Scope of Agreement.
1.1. Terms of Service. These terms of service (“Terms of Service”) govern the access and use of the website BigMailer.io, and affiliated websites, features, services, mobile applications, products, software and other services, or any portion thereof (collectively, the “Service”), owned or controlled by Founder Bits Inc., or its affiliated companies (“Founder Bits” or “we” or “our” or “us”). Affiliated companies are entities that control, are controlled by or are under common control with Founder Bits.
- Intellectual Property.
2.1. Ownership of Marks and IP. The design, trademarks, service marks, and logos of Founder Bits and the Service (“Founder Bits Marks”), are owned by or licensed to Founder Bits, subject to copyright and other intellectual property rights under United States, foreign laws and international conventions. Except as otherwise indicated, all copyright rights and other intellectual property rights in the Service and its contents, including any and all Founder Bits Marks, content, data, databases, information, text, music, sound, photos, images, graphics, audio, video, software, code, technology, methods, analyses, studies, reports, and other intellectual property contained therein (“Founder Bits IP”) are owned by or licensed to Founder Bits, and protected by law, including copyright, database, trade secret, and trademark laws of the United States and all applicable jurisdictions, as well as other applicable state, national, and international laws and regulations.
2.2. License. During the term of this Agreement, Founder Bits grants you a limited, non-exclusive, non-transferable license to access the Service for your use in accordance with these Terms of Service. Founder Bits reserves all rights not expressly granted in and to the Service. You agree to not engage in the use, copying, or distribution of any of the Service, or any portion thereof, other than as expressly permitted.
- Your Account.
3.1. Account Registration. If you choose to register for an account, you must complete the account registration process by providing us with current, complete, and accurate information as prompted by the applicable registration form. You agree to register only once using a single account. You agree you will not (i) register on behalf of another person; (ii) register under the name of another person or under a fictional name or alias.
3.2. Account Information. You are entirely responsible for maintaining the confidentiality of your account information and password. Furthermore, you are entirely responsible for any and all activities that occur under your account. You should notify us immediately of any known or suspected unauthorized use of your username and password or any other breach of security. Founder Bits will not be liable for any loss that you may incur as a result of someone else using your username, password, or account, either with or without your knowledge. You could be held liable for losses incurred by Founder Bits or another party due to someone else using your username, password, or account. You may not use anyone else’s account at any time, without the permission of the account holder. Your account is unique to you and may not be transferred to any third party.
3.3. Account Security. Founder Bits cares about the integrity and security of your account information. However, Founder Bits cannot guarantee that unauthorized third parties will never be able to defeat the Service’s security measures or use any personal information you provide to us for improper purposes. You acknowledge that you provide your account information at your own risk.
- The Founder Bits Service.
4.2. Founder Bits is a Technology Platform. You understand that Founder Bits acts only as a technology platform and interface between Users and that Founder Bits does not itself verify the qualifications of Users, nor does it evaluate or control in any ongoing manner exchanges between Users. Any opinions or statements expressed by a User are of those of the User alone, and are not to be attributed to Founder Bits. Founder Bits cannot and does not assume responsibility for the accuracy, completeness, safety, reliability, timeliness, innocuousness, legality or applicability of anything said, written, posted, displayed or otherwise made available by any User. Please use caution, common sense, and practice safety when using Founder Bits. By using Founder Bits, you agree to accept such risks and that Founder Bits (and our officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of Users.
4.3. Amazon Simple Email Service. In order to send and receive email using the Service, you will need to have an Amazon Web Services (“AWS”) Simple Email Service (“SES Email”) account, which is available at https://aws.amazon.com/ses/, and agree to Amazon Web Service’s service terms, customer agreement, privacy policies and other policies. To use the Service, you must authorize Founder Bits to access your AWS SES Email account via authorized tokens. Like many email service providers, when you send, attempt to send, or receive an email, Amazon (or its third-party providers) may store and scan your SES Email and your User Content and Data included in SES Email. Your use of SES and all SES Email must comply with the AWS Acceptable Use Policy any other applicable policies or agreements. Your SES Emails may be blocked, delayed or prevented from being delivered by destination email servers and other reasons outside of our control. Your payment obligations continue regardless of whether delivery of your emails is prevented, delayed or blocked. Your SES Emails may be blocked, delayed or prevented from being received due to your configuration of the Service. You are solely responsible for the proper configuration of the Service to ensure the receipt of emails.
4.4. Disputes with Users. If you have a dispute with one or more Users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
4.5. Limitation of Liability Regarding Users. Founder Bits is not responsible for the conduct of any User. As set forth in, and without limiting, Sections 13 and 14 below, in no event shall Founder Bits (or our affiliates and subsidiaries, or our and their respective officers, directors, employees and agents) be liable, directly or indirectly, for any losses or damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else in connection with the use of the Service including, without limitation, death, bodily injury, emotional distress, and/or any other damages resulting from communications or meetings with other Users or persons you meet through the Service. You agree to take all necessary precautions in all interactions with other Users, particularly if you decide to communicate off the Service or meet in person, or if you decide to send money to another User. You understand that Founder Bits makes no guarantees, either express or implied, regarding your interactions with individuals you meet through the Service. You should not provide your financial information (for example, your credit card or bank account information), or wire or otherwise send money, to other Users.
- Contacts and Contact Lists.
5.1. Definitions. A “Contact” is a person you contact through the Service, or a person who you might choose to contact at some point in the future through the use of the Service by using a Contact List. A “Contact List” is a list of Contacts and all associated Personal Information related to those Contracts (for example, email addresses). When you add a Contact List or send an email via the Service, we have and may access the data on your Contact List.
5.2. Your Contact Lists. Your Contact Lists are stored on secure servers. We do not, under any circumstances, sell your Contact Lists or your Contacts’ Personal Information. If someone on your Contact List complains or contacts us, we might then contact that person. Only authorized employees have access to view Contact Lists. If we detect abusive or illegal behavior related to your Contact List, we may share your Contact List or portions of it with affected ISPs or anti-spam organizations. We offer you the ability to delete Contacts from your account. If you have previously sent email to a Contact, deletion of that Contact will only be possible after a period of 21 days from the date on which you last sent email to that Contact. We may delete your contacts for non-payment if your account remains in past due status for more than 30 days and attempts were made to notify you of the issue.
5.4. Data Collected for and by our Users. As you use the Service, you may import into our system Personal Information you have collected from your Contacts or other individuals. We have no direct relationship with your Contacts or any person other than you, and for that reason, you are responsible for making sure you have the appropriate permission for us to collect and process information about those individuals.
5.5. Information from Other Sources. We may receive more information about you or your Contacts, such as name, email address, demographic information, IP addresses, location, and use of social media websites, by searching the Internet or querying third parties (we refer to that information as “Supplemental Information”). We use Supplemental Information to develop features on the Service and help you learn about your Contacts and provide suggestions to you.
5.6. Sensitive Information. You will not import or incorporate into any Contacts or Contact Lists or other content you upload to our servers any of the following information: social security numbers, national insurance numbers, credit cards, passwords, security credentials, or sensitive personal or health information of any kind.
5.7. Notification of Security Breach. In the event of a security breach that may affect you or any Contacts on your Contact Lists, we may notify you of the breach and provide a description of what happened. If we determine, and notify you, that you need to forward all or part of that information to any Contacts on your Contact Lists, you hereby agree to promptly do so.
5.8. Representations. You agree to import, access or otherwise use only Contacts and Contact Lists in connection with the Service for which all listed parties have consented to receive correspondence from you. You agree not to send messages through the Service to publicly available, purchased or rented email addresses, contacts, or Contact Lists.
5.9. Unsubscribing. If you are a Contact and no longer want to be contacted by one of our Users, please unsubscribe directly with that User’s emails or contact the User directly to update or delete your data. If you contact us, we may remove or update your information within a reasonable time and after providing notice to the User of your request. We will retain Personal Information we process on behalf of our Users for as long as needed to provide the Service or to comply with our legal obligations, resolve disputes, prevent abuse, and enforce our agreements.
5.10. Unsubscribe Links. Every email message sent to a Contact Lists in connection with the Service must contain an “unsubscribe” link that allows Contacts to remove themselves from your mailing list. Each such link must remain operational for at least 60 days after the date on which you send the message, and must be in form and substance satisfactory to us. You agree that you will not remove, disable or attempt to remove or disable such link. You shall monitor and process unsubscribe requests received by you directly within 10 days of submission and update the email addresses to which messages are sent through your account. You cannot charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an unsubscribe request. As required under the CAN-SPAM Act and other applicable laws, you acknowledge that you are responsible for maintaining and honoring the list of unsubscribe requests following termination of your account and this Agreement.
- User Conduct; User Content and Data.
6.1. User Conduct. As a condition of your use of and access to the Service, you agree not to use the Service for any unlawful purpose or in any way that violates these Terms. Any use of the Service in violation of these Terms of Service may result in, among other things, termination or suspension of your account and your ability to use the Service. You may not engage in any of the following prohibited activities: (a) Copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; collecting or harvesting any personally identifiable information, including account names, from the Service; altering, modifying or creating derivative works of the Service, or any portion thereof; (b) Using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service; accessing any content or features of the Service through any technology or means other than those provided or authorized by the Service; (c) Using the Service for any political campaigning; Sending spam, or fishing scam, or unsolicited email considered junk email. Some examples of such emails include lead generation, penny stocks, credit repair, illegal gambling, multi-level marketing, pyramid schemes, prostitution, direct to consumer pharmaceutical sales, payday loans, and chain letters.
(d) Attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Service; uploading invalid data, viruses, worms, or other software agents through the Service; bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or features or enforce limitations on use of the Service or the content or features therein;
(e) Taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on Service infrastructure; interfering with the proper working of the Service;
(f) Impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; or
(g) Send Spam. Spam can be in the form of bulk emails or one to one commercial emails, including, without limitation, any message that violates the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) and/or Canada’s Anti-Spam Legislation, S.C. 2010, c. 23 (“Canada’s Anti-Spam Legislation”).
(h) Use any misleading or incorrect names, addresses, email addresses, subject lines, or other information on the Service or in any emails created or sent using our Service.
(i) Set up multiple accounts for any person or entity in order to send similar content, unless you’re part of a franchise or agency.
(j) Import or incorporate any of this information into any lists, emails or uploads to our servers: Social Security numbers, passwords, security credentials, or sensitive personal information.
(k) Send email that will be delivered to recipients as text, SMS, or MMS messages unless using a feature of the Service designed for that purpose.
(l) Upload or send to purchased lists or list scraped from publicly available web pages.
(m) Host content on our servers for any purpose other than to send email campaigns.
(n) Send email content that is harmful, tortuous, abusive, hateful (including “hate speech”), terrorist or violent extremist content, racially, ethnically, religiously, gender-based, or otherwise offensive, obscene, threatening, bullying (including advocating violence against others), unethical, vulgar, sexually explicit, defamatory, libelous, infringing, invasive of personal privacy or publicity rights, false or misleading advertising, encourages conduct that would violate a law or is, in a reasonable person’s view, objectionable and/or deemed to be in the sole discretion of Founder Bits inappropriate.
(o) Send emails with affiliate links or 3rd party offers unless (I) such offers or content are clearly labeled as advertisement or sponsored content (II) subscribers explicitly opt-in to receive 3rd party offers (III) the website shows offers for other sites (product reviews, deals, etc).
6.2. User Content and Data. As a user with a registered account, you may be able to submit content to the Service, including software code, videos, photos, images, audio, text, end-user data and information (including, without limitation, Personally Identifiable Information), and any other content (collectively, “User Content and Data”). You shall be solely responsible for your own User Content and Data and the consequences of submitting and publishing your User Content and Data on the Service. You further agree that you will not submit to the Service any User Content and Data or other material that is contrary to these Terms of Service or contrary to applicable local, national, and international laws and regulations.
6.3. Representations. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish User Content and Data you submit. You further agree that User Content and Data you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant us all of the license rights granted herein. We do not permit copyright infringing activities and infringement of intellectual property rights on the Service, and we will remove all User Content and Data if properly notified that such User Content and Data infringes on another’s intellectual property rights. We reserve the right to remove User Content and Data without prior notice. By using the Service, you expressly agree not to use, reproduce, modify, adapt, edit, translate, publicly display, telecommunicate or perform, post, upload to, transmit, distribute, store, create derivative works from or otherwise publish throughout the world, in any media, now known or hereafter devised, on or through the Service any of the following:
(a) User Content and Data that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, foreign, national or international law, including, without limitation, the regulations of the U.S. Securities and Exchange Commission;
(b) User Content and Data that is indecent, profane (including masked profanity where symbols, initials, intentional misspellings or other characters are used to suggest profane language), obscene, pornographic, abusive, inflammatory, untrue, misleading, illegal, invasive of privacy or publicity rights, libelous, slanderous or defamatory.
(c) User Content and Data that contains any confidential or proprietary information of any person or entity, or that otherwise violates the legal rights of any person or entity. You may not include in any User Content and Data either any email addresses or telephone numbers of any person or entity, including your own. You may not use a false email address, impersonate any person or entity (including any other user), or otherwise mislead as to the origin of your User Content and Data;
(d) User Content and Data that contains: (I) social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers, or other government identification numbers; (II) Protected Health Information (as defined by HIPPA), or similar information under other comparable laws or regulations; (III) financial account numbers (including without limitation, credit or debit card numbers, primary account numbers, bank account numbers, related security codes or passwords, or similar information; or (IV) “special classes of data” (as defined by GDPR) of EU residents, or similar information under other comparable laws or regulations.
(e) User Content and Data that, in the sole judgment of Founder Bits, contravenes the above, is otherwise objectionable or inappropriate, or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Founder Bits or its affiliates or its users to any harm or liability of any type.
6.4. User Content and Data Disclaimers. We do not endorse any User Content and Data submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and we expressly disclaim any and all liability in connection with User Content and Data. Founder Bits takes no responsibility and assumes no liability for any User Content and Data posted, stored or uploaded by you or any third party, or for any loss or damage thereto or in connection therewith, nor is Founder Bits liable for any mistakes, inaccuracies, infringements, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, Founder Bits is not liable for any statements, representations or User Content and Data provided by its users. Although Founder Bits has no obligation to screen, edit or monitor any of the User Content and Data posted to or distributed through the Service, Founder Bits reserves the right, and has absolute discretion, to remove, screen or edit without notice any User Content and Data posted or stored on the Service at any time and for any reason and without liability to you or any third party, and you are solely responsible for creating backup copies of and replacing any User Content and Data you post or store on the Service at your sole cost and expense. However, we also reserve the right in our sole discretion to display any User Content and Data that is submitted to us (or to decline to remove any User Content and Data), even if it violates this Agreement. Since not all of the areas of the Service are monitored on a “real time” basis, you may see User Content and Data that violates this Agreement before we do. Please report such items to email@example.com.
6.5 Reporting Abuse. If you think anyone is violating any of these Terms or you’ve received spam from a BigMailer customer, please report it to firstname.lastname@example.org.
- Copyright Policy.
7.1. Copyright Agent. Founder Bits respects the intellectual property rights of others and expects users of the Service to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to our designated copyright agent (“Copyright Agent”). Our designated Copyright Agent to receive notifications of claimed infringement is:
Founder Bits Inc. DBA BigMailer.io
80 Theodore Fremd Avenue, Rye, NY 10580
Attn: Copyright AgentFor clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to email@example.com. You acknowledge that if you fail to comply with all of the requirements of this Section, your DMCA notice may not be valid.
7.2. Claims of Infringement. If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
- Information reasonably sufficient to permit Founder Bits to contact you, such as an address, telephone number, and, if available, an electronic mail;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
7.3. Counter-Notice. If you believe that your content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your content, you may send a counter-notice containing the following information to our Copyright Agent:
- Your physical or electronic signature;
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- A statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- Your name, address, telephone number, and e-mail address, a statement that you consent to the arbitration provision of this Agreement, and a statement that you will accept service of notice from the person who provided notification of the alleged infringement;
- If a counter-notice is received by our Copyright Agent, we may send a copy of the counter-notice to the original complaining party informing that person that he or she may replace the removed content or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the content provider, or user, the removed content may be replaced, or access to it restored, in ten (10) to fourteen (14) business days or more after receipt of the counter-notice, at our sole discretion.
- Third Parties.
8.1. Third Party Links. The Service may contain links to third-party advertisers, websites or services. You acknowledge and agree that Founder Bits is not responsible or liable for: (i) the availability or accuracy of such advertisements, websites or services, or (ii) the content, products, or resources on or available from such advertisers, websites or services. Links to such advertisers, websites or services do not imply any endorsement by Founder Bits of those websites or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or services.
8.2. Third Party Content. Through the Service, you will have the ability to access and/or use content provided by third parties. Founder Bits cannot guarantee that such third party content will be free of material you may find objectionable or otherwise. Founder Bits disclaims any responsibility or liability related to your access or use of any third party content.
8.3. Third Party Promotions. Some third parties may promote sweepstakes, competitions, promotions, and other similar opportunities on the Service (“Third Party Promotions”). Founder Bits is not the sponsor or promoter of these Third Party Promotions and does not bear any responsibility or liability for the actions or inactions of any third parties who organize, administer or are otherwise involved in any of promotion of these Third Party Promotions. If you wish to participate in any of these Third Party Promotions, you are responsible for reading and ensuring that you understand the applicable rules and any eligibility requirements and are lawfully able to participate in such Third Party Promotions in your jurisdiction.
8.5. Third Party Listings. We do not warrant and shall not be liable for the quality of any third party products, services, information, or other material obtained by you through the Service.
8.6. Errors, Inaccuracies and Omissions. Occasionally there may be information in the Service that contains typographical errors, inaccuracies or omissions. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information if any information in the Service or on any related website is inaccurate at any time without prior notice. We undertake no obligation to update, amend or clarify information in the Service or on any related website, including without limitation, except as required by law. No specified update or refresh date applied in the Service or on any related website, should be taken to indicate that all information in the Service or on any related website has been modified or updated.
- Fees, Payments and Changes.
9.1. Fees. Founder Bits reserves the right at any time to charge fees for access to the Service, or any portion thereof. However, in no event will you be charged for access to the Service unless we obtain your prior agreement to pay such charges. You may cancel your account at any time. You agree to pay all charges that may be incurred by you or on your behalf through the Service, at the price(s) in effect when such charges are incurred, including all shipping and handling charges. In addition, you remain responsible for any and all taxes that may be applicable to your purchase(s), and you agree that such taxes, if any, are not our responsibility. Refunds and exchanges shall be subject to our refund and exchange policies, in the applicable additional terms, as may be made available by us and updated by us from time to time.
9.3. Changes. We reserve the right, with or without prior notice, to: change descriptions or references to products, subscriptions, software or services; limit the available quantity of any products, subscriptions, software, or services and/or refuse to provide any user of the Service with any products, subscriptions, software or services.
9.4. Refund Policy. Any user of the service shall be entitled to a pro-rated refund of the monthly subscription fee only in the event of non-use of service AND after all contacts have been removed from their account. Refunds may only be processed for 1 past billing cycle. No refunds shall be made based on usage being lower than customer selecting billing plans and levels. All account credits are non-refundable and have no monetary value.
- Mobile Services.
10.1. “Mobile Services” means certain software and services that are available via a mobile device, including (i) the ability to upload data to the Service via a mobile device, (ii) the ability to use the Service from a mobile device, and (iii) the ability to access certain features through an application downloaded and installed on a mobile device.
10.2. Wireless Carriers. To the extent you access the Mobile Services through a mobile device, your wireless carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.
10.3. Notifications and Messages. By using the Mobile Services, you agree that we may communicate with you regarding Founder Bits and other entities by SMS, MMS, text message or other electronic means to your mobile device for the purpose of providing the applicable service and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Founder Bits account information to ensure that your messages are not sent to the person that acquires your old number. In the event that you fail to comply with the obligation to promptly update your Founder Bits account information when changing or deactivating your mobile telephone number, you accept full responsibility for any of your messages, which may not be delivered or may be sent to the person that acquires your old number.
- Termination, Suspension, and Restrictions, and Survival of Terms.
12.1. Termination, Suspension, and Restrictions. Founder Bits may terminate or suspend your access to or ability to use the Service immediately, without prior notice or liability, for any reason or no reason, including breach of this Agreement. In particular, Founder Bits may immediately terminate or suspend accounts that have been flagged for repeat copyright infringement. Upon termination of your access to or ability to use the Service, your right to use or access the Service will immediately cease. Founder Bits may change, restrict access to, suspend, or discontinue any aspect of the Service at any time, including availability of any feature, database, or content. Founder Bits may also impose limits on certain features and services or restrict your access to all or parts of the Service without notice or liability.
12.2. Survival of Terms. This Agreement’s terms and conditions that by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability. Termination of your access to and use of the Service shall not relieve you of any obligations arising or accruing prior to termination or limit any liability that you otherwise may have to Founder Bits or any third party.
- General Disclaimers. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE (INCLUDING, WITHOUT LIMITATION, MOBILE SERVICES), IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FOUNDER BITS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FOUNDER BITS DOES NOT WARRANT THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT SERVICE OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR ANY OTHER HARMFUL COMPONENTS. FOUNDER BITS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE CONTENT OR DATA ON THE SERVICE, WITH RESPECT TO THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. FOUNDER BITS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCTS, OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY OTHER ADVERTISING, AND FOUNDER BITS WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF PRODUCTS OR SERVICES THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
- Limitations of Liability. IN NO EVENT SHALL FOUNDER BITS, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM YOUR USE OF THE SERVICE (INCLUDING, WITHOUT LIMITATION, MOBILE SERVICES), OR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR DATA, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FOUNDER BITS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT FOUNDER BITS SHALL NOT BE LIABLE FOR USER CONTENT AND DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. IN NO EVENT WILL FOUNDER BITS’S TOTAL AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU TO USE THE SERVICE DURING THE PRIOR SIX (6) MONTHS.
- Indemnification. To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Founder Bits, its parent corporation, officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Service (including, without limitation, Mobile Services); (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your User Content and Data caused damage to a user or third party. Founder Bits may assume the exclusive defense and control of any matter for which users have agreed to indemnify Founder Bits and you agree to assist and cooperate with Founder Bits in the defense or settlement of any such matters. This defense and indemnification obligation will survive the termination of this Agreement and your use of the Service.
- Dispute Resolution.
16.1. Mandatory Arbitration. For any dispute you have with Founder Bits, you agree to first contact Founder Bits and attempt to resolve the dispute informally. If Founder Bits has not been able to resolve the dispute with you informally, we each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement by binding arbitration by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes then in effect for the AAA, except as provided herein. The arbitration will be conducted in the County of Los Angeles, State of California, in the United States. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. This arbitration agreement survives the termination of this Agreement between you and Founder Bits.
16.2. Waivers of Class Action and Trial by Jury. You and Founder Bits both waive any right to participate in any class action involving disputes between us, and you and Founder Bits are each waiving the right to a trial by jury. All claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. This class action waiver is an essential part of our arbitration agreement and may not be severed. If for any reason this class action waiver is found unenforceable, then the entire arbitration agreement will not apply. However, the waiver of the right to trial by jury set forth in this Section will remain in full force and effect.
16.3. Other Remedies. Notwithstanding the foregoing, either party may bring an individual action in small claims court. Nothing in this Section precludes you from bringing issues to the attention of federal, state or local agencies. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service.16.4. Time Limitations. YOU AND FOUNDER BITS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES.
16.4 No Waiver. No delay or omission by either party in exercising any rights under this Agreement will operate as a waiver of that or any other right. A waiver or consent given by either party on any one occasion is effective only in that instance and will not be construed as a bar to or waiver of any right on any other occasion.
- Notice for California Users. Under California Civil Code Section 1789.3, California users of the online services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
- Users From Other Jurisdictions. By accessing or using the Service, or submitting information, you acknowledge that you accept the practices and policies outlined in this Agreement and consent to having your data transferred to and processed in the United States. If you do not agree to the terms of this Agreement, please do not use the Service. The Service is controlled and operated by Founder Bits from the United States. We do not represent or warrant that the Service, or any part thereof, is appropriate or available for use in any particular jurisdiction. Those who choose to access the Service, do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. You also are subject to United States export controls in connection with your use of the Service and are responsible for any violations of such controls, including, without limitation, any United States embargoes or other federal rules and regulations restricting exports. We may limit the availability of the Service, in whole or in part, to any person, geographic area or jurisdiction that we choose, at any time and in our sole discretion.
- Governing Law & Venue. This Agreement shall be governed in all respects by the laws of the United States of America and by the laws of the State of New York. The Courts of Westchester County, New York shall be the exclusive forum for any mediation, arbitration, litigation, or dispute resolution.
- Contact Information. If you have any questions, feedback or to report a violation regarding these Terms of Service, you may email us at firstname.lastname@example.org or contact us by mail addressed to:
Founder Bits Inc. DBA BigMailer.io
80 Theodore Fremd Avenue, Rye, NY 10580
Last Modified: Feb 21, 2022