R3M3MB3R.com LLC Terms of Service
Last Updated: January 1, 2020
R3M3MB3R.com LLC is a SaaS (Software as a Service). Our services enable connectivity and the easy integration of telecommunications and e-mail capabilities into software applications, including mobile, web-based and desktop applications.
This is our Terms of Service, and it covers services provided by R3M3MB3R.com LLC Inc. As a courtesy to you, on the left side, we’ve done our best to translate the legalese into a “human readable” format (though our legal team assures us that lawyers are humans, too). You should know though that the language on the right is the legally binding stuff. While we’ve done our best to make our terms complete, readable, and understandable, you may still have additional questions. We get that. So, feel free to contact our support team by clicking here or write to us at the addresses below:
833 Roper Rd
Canton Ga 30115
In these Terms of Service (hereafter “Agreement” or “Terms”), “we,”“us,”“our” or “R3M3MB3R.com LLC” will refer collectively to R3M3MB3R.com LLC Inc, 833 Roper Rd Canton GA 30115 and the terms “you,”“your” and “Customer” will refer to you. To be eligible to register for a R3M3MB3R.com LLC account in order to use the Services, you must review and accept these Terms by clicking on the “I Accept” or “Get Started” button or other mechanism provided. If you are registering for a R3M3MB3R.com LLC account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to R3M3MB3R.com LLC that you have the authority to bind that organization to these Terms (and, in which case, the terms “you” and “your” or “Customer” will refer to that organization). The exception to this is if that organization has a separate written agreement with R3M3MB3R.com LLC covering the use of the Services, in which case that agreement will govern such use.
PLEASE REVIEW THESE TERMS CAREFULLY. ONCE ACCEPTED, THESE TERMS BECOME A BINDING LEGAL COMMITMENT BETWEEN YOU AND R3M3MB3R.com LLC. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU SHOULD NOT CLICK THE “I ACCEPT” OR “GET STARTED” BUTTON AND YOU SHOULD NOT USE THE SERVICES.
When we refer to the “Services” in these Terms, we mean to include the whole enchilada — including both: (1) the “R3M3MB3R.com LLC Services” which are the services offered and provided by R3M3MB3R.com LLC Inc. to you, which are generally comprised of: (a) our platform services, including the application programming interface for the R3M3MB3R.com LLC Services and any cloud-based software provided to you by R3M3MB3R.com LLC in connection with your use of the platform services, and programs, features, functions, developer tools, and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by R3M3MB3R.com LLC, and (b) connectivity services, which include the interconnection capabilities embedded within the R3M3MB3R.com LLC Services that link the R3M3MB3R.com LLC Services to the telecommunications providers’ networks (including fixed-line, cellular, wireless, high-bandwidth, and/or fiber optic cable) via the Internet.
When we refer to the “R3M3MB3R.com LLC API” we mean an application programming interface for the Services (or feature of the Services) provided to you by us.
When we refer to the “Documentation” we mean all of the R3M3MB3R.com LLC API instruction manuals and guides, code samples, manuals, guides, on-line help files and technical documentation made publicly available by us for the Services, and as may be updated from time to time
IMPORTANT NOTE: THESE TERMS LIMIT OUR LIABILITY TO YOU. For more details, go to Section 14.
IN ADDITION, DISPUTES RELATED TO TERMS OR RELATED TO YOUR USE OF THE SERVICES GENERALLY MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY. For more details, go to Section 18.
If you have any questions, you can reach R3M3MB3R.com LLC at R3M3MB3R.com/contact
Table of Contents
- Changes to These Terms
- Your R3M3MB3R.com LLC Account(s)
- Access and Use of the Services
- Customer Data
- Restrictions and Requirements
- Changes to the Services
- Export Controls
- Product Terms
- Fees, Payment Terms, Taxes
- Ownership and Confidentiality
- Representations and Warranties; Warranty Disclaimer
- Limitation of Liability; Emergency Services
- Term; Termination; Suspension
- Agreement to Arbitrate
1. Changes to These Terms
We may revise these Terms from time to time. If we do, those revised Terms will supersede prior versions. Unless we say otherwise, revisions will be effective upon the effective date indicated at the top of these Terms. We will provide you advance notice of any material revisions. This notice will be provided in your R3M3MB3R.com LLC account portal or via an e-mail to the e-mail address owner of your R3M3MB3R.com LLC account. For other revisions, we will update the effective date of these Terms at the top of the page. We encourage you to check the effective date of these Terms whenever you visit R3M3MB3R.com LLC’s website or log in to your R3M3MB3R.com LLC account. Your continued access or use of the Services constitutes your acceptance of any revisions. If you do not agree to the revisions, you should stop using the Services.
2. Your R3M3MB3R.com LLC Account(s)
To use the Services, you will be asked to create a R3M3MB3R.com LLC account. As part of the account creation process, you’ll be asked to provide your e-mail address, create a password, and verify that you’re a human being by providing a telephone number to which we’ll send you a verification code to enter into a form. Until you register for a R3M3MB3R.com LLC account, your access to the Services will be limited to what is available to the general public. When registering for a R3M3MB3R.com LLC account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process and you must keep that information true, accurate, current and complete after you create each R3M3MB3R.com LLC account.
You are solely responsible for all use (whether or not authorized) of the Services under your R3M3MB3R.com LLC account. We will not be liable for any loss or damage arising from unauthorized use of your R3M3MB3R.com LLC account(s).
3. Access and Use of the Services
3.1 Provision of the R3M3MB3R.com LLC Services. We will make the R3M3MB3R.com LLC Services available to you, however we make no guarantee as to the uptime of our servers and thus the service offered.
Our service offering is released as a product in beta mode. Because of this, we do not, nor will not guarantee your access to the use of the service.
3.2 Refunds- At this time, R3M3M3B3R LLC does not and will not offer refunds for any monies paid toward monthly fees or unused credits.
4. Customer Data
We might have to use or disclose your data for one or more of the reasons below:
- If necessary to provide you with our services;
- To address technical issues, provide support or maintain our services;
- If we need to protect R3M3MB3R.com LLC, other customers, or the public;
- If there is an emergency; or
- If the law requires.
E-mail and SMS are insecure by their nature, so please keep that in mind when using the services. There is nothing we can do about it, and therefore cannot be held responsible.
If we make reference to ‘law’ or ‘laws’ in these terms, we mean laws in the traditional sense, statutes, regulations, rules, government or court orders or judgments, etc.
4.1 Use of Customer Data
“Customer Data” consists of data and other information made available to us through the use of the Services under these Terms, including, Customer Usage Data and Customer Content.
“Customer Content” shall mean (a) content exchanged by means of use of the R3M3MB3R.com LLC Services, such as text, message bodies, voice and video media, images, and sound; (b) data stored on Customer’s behalf via the R3M3MB3R.com LLC Services such as communication logs.
“Customer Usage Data” shall mean data processed by R3M3MB3R.com LLC for the purposes of transmitting, distributing, or exchanging Customer Content; including data used to trace and identify the source and destination of a communication, such as individual data subjects’ telephone numbers, data on the location of the device generated in the context of providing the R3M3MB3R.com LLC Services, and the date, time, duration, and the type of communication.
By the way, when we refer to “Law” in these Terms, we mean any statute, law, ordinance, regulation, rule, judgment or order of a government, court, or tribunal of competent jurisdiction, including, without limitation, any data protection laws, privacy laws, any laws that requires you to obtain consent from an End User, any state, federal, and international laws, regulations, and rules related to the recording or monitoring of telephone calls, SMS messages, or other communications, the U.S. Foreign Corrupt Practices Act, rules established by the Federal Communications Commission, any federal or state anti-spam statute or regulation, including the CAN SPAM Act of 2003, or any federal or state statute or regulation prohibiting the dissemination of unsolicited communications, including the Telephone Consumer Protection Act of 1991 (TCPA).
4.2 Return and Deletion of Customer Usage Data & Customer Content
Upon termination of these Terms, we may retain, use, and disclose Customer Usage Data: (a) for R3M3MB3R.com LLC’s accounting, tax, billing, audit, and compliance purposes; (b) to investigate fraud, spam, or unlawful use of the Services; and/or (c) as required by applicable Law, provided that the retention, use, and disclosure of such Customer Usage Data for the foregoing purposes is subject to the confidentiality obligations as set forth in Section 11.4. We shall anonymize or otherwise delete Customer Usage Data after we no longer require it for the foregoing purposes.
4.2.1 Customer Content within the R3M3MB3R.com LLC Services. At your written request, we provide you the ability to obtain a copy of and delete Customer Content via the R3M3MB3R.com LLC Services. You agree that you are solely responsible for obtaining a copy of and deleting Customer Content via the R3M3MB3R.com LLC Services. Upon termination of this Agreement, we will: (i) provide you thirty (30) days after the termination effective date to obtain a copy of any stored Customer Content via the R3M3MB3R.com LLC Services; (ii) automatically delete any stored Customer Content thirty days after the termination effective date; and (iii) automatically delete any stored Customer Content on R3M3MB3R.com LLC’s back-up systems sixty days after the termination effective date. Any Customer Content archived on R3M3MB3R.com LLC’s back-up systems will be securely isolated and protected from any further processing, except as otherwise required by applicable Law.
4.2.2 Retention if Required by law. Notwithstanding anything to the contrary in this Secti on 4.2, R3M3MB3R.com LLC may retain Customer Content or any portion of it if required by applicable Law.
5. Restrictions and Requirements
5.1 R3M3MB3R.com LLC Services. With regard to the R3M3MB3R.com LLC Services, you agree that:
- You will not transfer, resell, lease, license or otherwise make available the R3M3MB3R.com LLC Services to third parties or offer them on a standalone basis;
- You will not attempt to use the R3M3MB3R.com LLC Services to access or allow access to Emergency Services;
- You will ensure that the R3M3MB3R.com LLC Services are used in accordance with all applicable Law and third party rights, as well as these Terms and our Acceptable Use Policy, as amended from time to time;
- You will ensure that we are entitled to use your Customer Data, as needed to provide the R3M3MB3R.com LLC Services;
- You will not use the R3M3MB3R.com LLC Services in any manner that violates any applicable Law; and
- Except as allowed by applicable Law, you will not reverse engineer, decompile, disassemble or otherwise create, attempt to create or derive, or permit or assist anyone else to create or derive the source code of any software provided in connection with the R3M3MB3R.com LLC Services.
6. Changes to the Services
The features and functions of the Services may change over time. It is your responsibility to ensure that calls or requests you make to the Services are compatible with our then-current Services. Although we try to avoid making changes to the Services that are not backwards compatible, if any such changes become necessary, we will use reasonable efforts to let you know at least sixty (60) days prior to implementing those changes with respect to the R3M3MB3R.com LLC Services.
7. Export Controls
The Services may be subject to applicable U.S. export control laws and economic sanctions regulations. In receiving the Services, you agree to comply strictly with all domestic and international export laws and economic sanctions regulations as they apply to the Services, and to the extent consistent with these Terms, to obtain any necessary license or other authorization to export, re-export, or transfer the Services. These laws include restrictions on destinations, End Users, and end use. Without limitation, you may not transfer the Services without U.S. government authorization to any entity on a U.S. government exclusion list (e.g., the Department of Commerce’s List of Denied Persons, Entity, or Unverified List, and the Treasury Department’s List of Specially Designated Nationals and Consolidated Sanctions List). You represent that you are not on a U.S. government exclusion list or under the control of or an agent for any entity on such a list, and you further warrant that you will immediately discontinue use of the Services if you become placed on any such list or under the control of or an agent for any entity placed on such a list.
Your affiliates mean any entity or person that controls you, is controlled by you, or under common control with you, such as a subsidiary, parent company, or employee. Similarly, if we refer to our affiliates, we mean an entity or person that controls us, is controlled by us, or is under common control with us. Your affiliates may use the Services pursuant to these Terms, provided that these Terms apply to your affiliates. You and your affiliates that use the Services will be jointly and severally responsible for the acts and omissions of your affiliates, including, but not limited to, their breach of these Terms. Any claim from any of your affiliates that use the Services pursuant to these Terms may only be brought against us by you on your affiliates’ behalf.
9. Product Terms
We have certain rights with respect to the porting of phone numbers if such phone numbers are used as part of the R3M3MB3R.com LLC Services. Unless otherwise required by applicable Law, we, at our sole discretion, reserve the right to refuse to allow you to port away any phone number ported into us or purchased from us. Furthermore, you understand that phone numbers are “locked” by default (i.e., by default port-away requests will be disputed unless you provide clear notice to us of your intent to port the number away from us) solely to prevent phone numbers from being ported away maliciously or mistakenly from us. Regardless, we may, at our sole discretion, allow you to port away phone numbers that you purchase from us and will allow you to port away phone numbers that you port to us, provided that you (a) have a R3M3MB3R.com LLC account in good standing; (b) have either ported in or purchased the phone number more than ninety (90) days prior to the port-away date; (c) provide clear notice to us of your intent to port the phone numbers away from us before execution of the port-away request; (d) are in compliance with these Terms and; (e) to cover our processing labor, you’ve paid the $99 service fee per number ported.
If we inform you of a request to port a phone number away from us and you have resold or reprovisioned that phone number to a third party, then you agree to promptly validate the port-away request with such third party. If such third party approves the port-away request, then you agree to (x) inform us of such third party’s approval for the port-away request and (y) not take any action to prevent the execution of such port-away request.
10. Fees, Payment Terms, Taxes
10.1 Fees. You agree to pay fees in accordance with the rates listed at R3M3MB3R.com LLC.com/pricing, with respect to the R3M3MB3R.com LLC Services.
Additionally, we will charge you, and you shall pay, in accordance with Section 10.3, any and all additional costs, fines, or penalties we incur from a governmental or regulatory body or telecommunication provider as a result of your use of the Services in violation of these Terms.
10.2 Taxes. You shall be responsible for and shall pay all Taxes imposed on or with respect to the Services that are the subject of this Agreement whether such Taxes are imposed directly upon you or upon us. “Taxes” mean all applicable federal, state and local taxes, fees, charges, telecommunications provider (e.g., carrier) surcharges or other similar exactions, including, without limitation, sales and use taxes, communications service taxes, utility user’s taxes or fees, excise taxes, VAT, GST, other license or business and occupations taxes, 911 taxes, franchise fees and universal service fund fees or taxes. For purposes of this Section 10.2, Taxes do not include any Taxes that are imposed on or measured by our net income, property tax, or payroll taxes. If you are exempt from any such Taxes for any reason, because we are in beta mode, we do not have the technical ability to create two billing systems for both non-exempt and exempt entities. Because of this, if you are exempt from paying taxes, you agree not use R3EM3MB3R services until such time that we have implemented both billing systems.
10.3 Payment Terms. You will make all of the payments due hereunder to R3M3MB3R.com LLC Inc. for the R3M3MB3R.com LLC Services in accordance with the following applicable payment method:
10.3.1 Credit Card Payment Terms. If you elect to pay via credit card, then you are responsible for either (a) enabling auto-recharge on your R3M3MB3R.com LLC account(s) or (b) ensuring that your R3M3MB3R.com LLC account(s) has a sufficient positive balance to cover the undisputed fees due. If, for any reason, you have a negative balance on your R3M3MB3R.com LLC account(s), then we reserve the right to suspend the Services.
10.3.2 Suspension for Non-Payment. If we suspend the Services pursuant to this Section 10.3, then we will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur with connection with any such suspension.
10.4 Fee Disputes. You must notify us in writing if you dispute any portion of any fees paid or payable by you pursuant to these Terms. You must provide that written notice to us within sixty (60) days of the date we bill you for the charge you want to dispute, and we will work together with you to resolve the dispute promptly.
11. Ownership and Confidentiality
11.1 General. As between you and R3M3MB3R.com LLC, we exclusively own and reserve all right, title and interest in and to the Services, Documentation, our Confidential Information and Customer Service Data; as well as any feedback, recommendations, correction requests, or suggestions from you or any End User about the Services (“Contributions”). As between you and R3M3MB3R.com LLC, you exclusively own and reserve all right, title and interest in your Confidential Information.
11.2 Suggestions and Contributions. We welcome your Contributions about the Services. But please know that by submitting Contributions you agree that:
- we are not under any obligation of confidentiality with respect to your Contributions;
- we may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way;
- we own your Contributions; and
- you are not entitled to any compensation or reimbursement of any kind from us under any circumstances for your Contributions.
11.3 Use of Marks. Subject to these Terms, each of us (“Licensor”) grants the other (“Licensee”) the right to use and display Licensor’s name, logo, and your use case using the Services (the “Licensor Marks”) on Licensee’s respective websites, in earnings calls, and in other promotional or publicly distributed materials solely in connection with its respective activities pursuant to these Terms. Licensee will not use, register, or take other action with respect to any of the Licensor Marks, except if permitted in writing by Licensor. Licensee will always use the then-current Licensor Marks and will not add to, delete from, or modify any of Licensor Marks. Licensee will not, at any time, misrepresent the relationship between Licensee and Licensor. UNLESS otherwise agreed to in writing, licensee will not present itself as an affiliate or other legal agent of the Licensor. Licensee’s right to use and display the Licensor Marks pursuant to this Section 11.3 will end automatically in the event these Terms terminate.
11.4 Confidentiality.“Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Confidential Information does not include any information which: (a) is publicly available through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person without violation of the disclosing party’s rights; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.
The receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with these Terms and it will not disclose such Confidential Information to any third party without the disclosing party’s prior written consent, except as otherwise permitted hereunder; provided, however, subject to Section 4, R3M3MB3R.com LLC may use and disclose your Confidential Information as necessary to provide the Services. The receiving party agrees to exercise due care in protecting Confidential Information of the disclosing party from unauthorized use and disclosure. The receiving party may disclose the Confidential Information of the disclosing party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors. The receiving party may disclose the Confidential Information of the disclosing party as required by applicable Law provided that, prior to any such compelled disclosure, the receiving party will, if permissible: (a) promptly notify the disclosing party in writing to allow the disclosing party a reasonable opportunity to resist such disclosure and/or seek a protective order, and (b) reasonably cooperate with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure. In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Confidential Information of the disclosing party, but only as and to the extent necessary to legally comply with such compelled disclosure.
11.5 Injunctive Relief. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of this Section 11 and that, in the event of an actual or threatened breach of the provisions of this Section 11, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section 11.
12. Representations and Warranties; Warranty Disclaimer
12.1 Representations and Warranties.
12.1.1 Recordings, transcription, and Communications Monitoring. If you record, transcribe, or monitor telephone calls, SMS messages, or other communications using the Services, then you represent and warrant that you will comply with all applicable Laws prior to doing so at all times. We make no representations or warranties with respect to recording, transcribing, or monitoring of telephone calls, SMS messages, or other communications, and recommend that you always secure prior consent to record, transcribe, or monitor communications using the Services. You acknowledge that these representations, warranties, and obligations are essential to our ability to provide you with access to recording, transcribing, and monitoring features that are part of the Services, and you further agree to indemnify us and our affiliates in accordance with the terms of Section 13 (Indemnification) arising out of or related to your acts or omissions in connection with recording, transcribing, or monitoring telephone calls, SMS messages, or other communications, whether such claims arise under contract, tort, statute or other legal theory.
12.1.2 Customer Data. You represent and warrant that you have provided adequate notices and obtained the necessary permissions and consents to provide Customer Data to us for use and disclosure pursuant to Section 4 (Our Use of Customer Data).
12.1.3 Services. We represent and warrant that the Services will operate in accordance with applicable Documentation and will materially conform to any specifications contained therein. R3M3MB3R.com LLC’s sole obligation, and your sole and exclusive remedy, in the event of any failure by R3M3MB3R.com LLC to comply with this Section 12.1.3 will be for R3M3MB3R.com LLC to, at R3M3MB3R.com LLC’s option, re-perform the affected Services or refund to you the fees you actually paid for the affected Services.
12.2 WARRANTY DISCLAIMER. WITHOUT LIMITING OUR EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, WE HEREBY DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. EXCEPT FOR OUR EXPRESS WARRANTIES SET FORTH IN THIS SECTION 12, THE SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. R3M3MB3R.com LLC WILL NOT BE LIABLE, AND WILL HAVE NO OBLIGATION TO INDEMNIFY YOU FOR SENSITIVE DATA (AS DEFINED BELOW) SENT TO R3M3MB3R.com LLC.
“Sensitive Data” shall mean (a) social security number, passport number, driver’s license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card), financial information, banking account numbers or passwords; (c) employment, financial, genetic, biometric or health information; (id racial, ethnic, political or religious affiliation, trade union membership, or information about sexual life or sexual orientation; (e) account passwords, mother’s maiden name, or date of birth; (f) criminal history; or (g) any other information or combinations of information that falls within the definition of “special categories of data” under GDPR or any other applicable Law relating to privacy and data protection.
12.3 BETA SERVICES. All R3M3MB3R Services are currently being released as a BETA services.. R3M3MB3R.com LLC may discontinue Beta Services at any time in its sole discretion and may decide not to make a Beta Service generally available. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, R3M3MB3R.com LLC IS PROVIDING THE BETA SERVICES TO YOU “AS IS.” R3M3MB3R.com LLC MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY OR ANY PUBLISHED DOCUMENTATION THAT STATES OTHERWISE, R3M3MB3R.com LLC DOES NOT WARRANT THAT THE BETA SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL, OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME. R3M3MB3R.com LLC SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE.
13. Mutual Indemnification
13.1 Indemnification by R3M3MB3R.com LLC. We will defend you from and against all claims, demands, suits or proceedings made or brought against you by a third party alleging that the Services infringe or misappropriate such third party’s intellectual property rights (“Infringement Claim”), and will indemnify you from any damages, attorney fees, and costs finally awarded against you as a result of, or for amounts you pay to settle an Infringement Claim under a settlement for which R3M3MB3R.com LLC has given its written approval.
13.2 Infringement Options If your use of the Services has become, or in R3M3MB3R.com LLC’s opinion is likely to become, the subject of any Infringement Claim, R3M3MB3R.com LLC may at its option and expense: (a) procure for you the right to continue using the Services as set forth herein; (b) modify the Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms and refund you any unused pre-paid fees. This Section 13 states your exclusive remedy for any Infringement Claim by a third party.
13.3 Limitations R3M3MB3R.com LLC will have no liability or obligation with respect to any Infringement Claim and a court award of damages (a) arising out of your use of the Services in breach of these Terms, (b) arising out of the combination, operation, or use of the Services with other applications, portions of applications, products, or services where the Services would not by themselves, and without modification, be infringing, or (c) arising from Services for which there is no charge.
13.4 Indemnification by You. You will defend R3M3MB3R.com LLC, its officers, directors, employees, and affiliates (“R3M3MB3R.com LLC Indemnified Parties”) from and against any claim, demand, suit or proceeding made or brought against a R3M3MB3R.com LLC Indemnified Party by a third party alleging or arising out of (a) your or any of your End Users’ breach of these Terms or your obligations under Section 5 (Customer Responsibilities, Restrictions and Requirements), or breach of your representations or warranties under Section 12 of these Terms; (b) your or any of your End Users’ use of the Services or any activities under these Terms; or (c) your Customer Application, including, without limitation, any intellectual property claims for infringement or misappropriation relating to each Customer Application (collectively, “Customer Indemnifiable Claims”) and will indemnify R3M3MB3R.com LLC from any damages, attorney fees, and costs finally awarded against R3M3MB3R.com LLC Indemnified Parties as a result of, or for amounts paid by R3M3MB3R.com LLC Indemnified Parties to settle a Customer Indemnifiable Claim under a settlement for which you have given your written approval.
13.5 Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Infringement Claim or Customer Indemnifiable Claim, as applicable (collectively referred to as a “Claim”), provided, however, that the failure to give such prompt notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party’s consent in connection with any act or forbearance required by the Indemnified Party, which consent will not be unreasonably withheld); and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 13 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent.
14. Limitation of Liability; Emergency Services
14.1 INDIRECT DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION 14.1 SHALL NOT LIMIT (A) YOUR LIABILITY ARISING FROM YOUR BREACH OF SECTION 5 (RESTRICTIONS AND REQUIREMENTS) OR SECTION 11.3 (USE OF MARKS); OR (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THESE TERMS.
14.2 DIRECT DAMAGES.UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY YOU DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM. THIS SECTION 14.2 SHALL NOT LIMIT (A) YOUR LIABILITY ARISING FROM YOUR BREACH OF SECTION 5 (RESTRICTIONS AND REQUIREMENTS), SECTION 10 (FEES, PAYMENT TERMS, AND TAXES), OR SECTION 11.3 (USE OF MARKS); OR (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THESE TERMS.
THE PROVISIONS OF THIS SECTION 14 ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
14.3 EMERGENCY SERVICES DISCLAIMER. THE SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR SMS MESSAGES TO ANY EMERGENCY SERVICES. NEITHER R3M3MB3R.com LLC NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND CUSTOMER WILL HOLD R3M3MB3R.com LLC HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE SERVICES TO CONTACT EMERGENCY SERVICES.
15. Term; Termination; Suspension
15.1 Term. These Terms, as may be updated from time to time, will commence on the date they are accepted by you and continue until terminated in accordance with Section 15.2 (Termination & Suspension) below (“Term”).
15.2 Termination & Suspension. Either party may terminate these Terms and close your R3M3MB3R.com LLC account(s) for any reason upon thirty (30) days written notice to the other party. Notwithstanding the preceding sentence, if there is an Order Form(s) in effect, then these Terms will not terminate until such Order Form(s) have expired or been terminated. R3M3MB3R.com LLC, at its sole discretion, may terminate these Terms and close your R3M3MB3R.com LLC account(s) in the event you commit any material breach of these Terms and fail to remedy that breach within five (5) days after R3M3MB3R.com LLC provides written notice of that breach to you. You may also terminate these Terms in the event we commit a material breach of these Terms and fail to remedy that breach within five (5) days after providing written notice of that breach to us.
In addition to suspension of the Services for non-payment of fees as described in Section 10.3 (Suspension for Non-Payment), we may also suspend the Services immediately upon notice for cause if: (a) you violate (or give us reason to believe you have violated) our Acceptable Use Policy; (b) there is reason to believe the traffic created from your use of the Services or your use of the Services is fraudulent or negatively impacting the operating capability of the Services; (c) we determine, in our sole discretion, that providing the Services is prohibited by applicable Law, or it has become impractical or unfeasible for any legal or regulatory reason to provide the Services; or (d) subject to applicable Law, upon your liquidation, commencement of dissolution proceedings, disposal of your assets or change of control, a failure to continue business, assignment for the benefit of creditors, or if you become the subject of bankruptcy or similar proceeding. We will use commercially reasonable efforts to (x) provide you as much prior notice as possible of any situation that we are aware of that could lead to a right to suspend described in this paragraph, (y) work with you to remedy any situation that could lead to a right to suspend described in this paragraph if such situation can be remedied, and (z) limit any suspension as much a possible given the circumstances leading to the suspension (e.g., to certain phone numbers, sub-accounts or other subset of traffic).
Upon termination of these Terms, your payment obligations, the terms of this Section 16, and the terms of the following Sections will survive (i.e. still apply): Section 4 (Customer Data), Section 10 (Fees, Payment Terms, and Taxes), Section 11 (Ownership and Confidentiality), Section 13 (Indemnification), Section 14 (Limitation of Liability; Emergency Services), Section 17 (General), and Section 18 (Agreement to Arbitrate).
17.1 Compliance with Laws. Both you and R3M3MB3R.com LLC will comply with the applicable Law relating to each of our respective activities pursuant to these Terms.
17.2 No Waiver. Our failure to enforce at any time any provision of these Terms or our Acceptable Use Policy does not waive our right to do so later. And, if we do expressly waive any provision of these Terms, our Acceptable Use Policy, that does not mean it is waived for all time in the future. Any waiver must be in writing and signed by you and us to be legally binding.
17.3 Assignment. You will not assign or otherwise transfer these Terms, in whole or in part, without our prior written consent. Any attempt by you to assign, delegate, or transfer these Terms will be null and void. R3M3MB3R.com LLC may assign these Terms, in whole or in part, without consent. Subject to this Section 17.3, these Terms will be binding on both you and R3M3MB3R.com LLC and each of our successors and assigns.
17.4 Relationship. You and R3M3MB3R.com LLC are independent contractors in the performance of each and every part of these Terms. Nothing in these Terms is intended to create or shall be construed as creating an employer-employee relationship or a partnership, agency, joint venture, or franchise. You and R3M3MB3R.com LLC will be solely responsible for all of our respective employees and agents and our respective labor costs and expenses arising in connection with our respective employees and agents. You and R3M3MB3R.com LLC will also be solely responsible for any and all claims, liabilities or damages or debts of any type that may arise on account of each of our respective activities, or those of each of our respective employees or agents, in the performance of these Terms. Neither you nor R3M3MB3R.com LLC has the authority to commit the other of us in any way and will not attempt to do so or imply that it has the right to do so.
17.5 Unenforceability. Except as described in Section 18 (Agreement to Arbitrate), if any provision of these Terms is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be limited or eliminated to the minimum extent necessary to make it enforceable and, in any event, the rest of these Terms will continue in full force and effect.
17.6 Notices. Any notice required or permitted to be given under these Terms will be given in writing to the receiving party by personal delivery, certified mail, return receipt requested, overnight delivery by a nationally recognized carrier or by email upon confirmation of receipt. Notices to R3M3MB3R.com LLC shall be copied to [email protected], Attn: General Counsel.
17.7 Entire Agreement. Except as provided in these Terms and any attachments to these Terms, these Terms supersede all prior and contemporaneous proposals, statements, sales materials or presentations and agreements, oral and written. No oral or written information or advice given by R3M3MB3R.com LLC, its agents or employees will create a warranty or in any way increase the scope of the warranties in these Terms. Any purchase order document or similar document provided by you shall be construed solely as evidence of your internal business processes, and the terms and conditions contained thereon shall be void and have no effect with regard to these Terms between you and R3M3MB3R.com LLC and be non-binding against R3M3MB3R.com LLC even if signed by R3M3MB3R.com LLC after the date you accept these Terms.
17.8 Force Majeure. No failure, delay or default in performance of any obligation of a party shall constitute an event of default or breach of these Terms to the extent that such failure to perform, delay or default arises out of a cause, existing or future, that is beyond the control and without negligence of such party, including action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood, terrorist act; war; riot; theft; earthquake and other natural disaster. The party affected by such cause shall take all reasonable actions to minimize the consequences of any such cause.
17.9 Government Terms. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with these Terms. If you (or any of your End Users) are an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation of any kind, including technical data, software, and manuals, is restricted by these Terms. All other use is prohibited and no rights other than those provided in these Terms are conferred. The Services were developed fully at private expense.
17.10 Governing Law and Venue. The enforceability and interpretation of Section 18 (Agreement to Arbitrate) will be determined by the Federal Arbitration Act (including its procedural provisions). Apart from Section 18, these Terms will be governed by and interpreted according to the laws of the State of Georgia without regard to conflicts of laws and principles that would cause laws of another jurisdiction to apply. These Terms will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except as provided in Section 18 (Agreement to Arbitration), any legal suit, action or proceeding arising out of or related to these Terms or the Services shall be instituted in either the state or federal courts of Canton, Georgia, and we each consent to the personal jurisdiction of these courts.
18. Agreement to Arbitrate
18.1 We Both Agree to Arbitrate. If a dispute cannot be resolved through our Customer Support Team, you or any of your affiliates on one hand and R3M3MB3R.com LLC and any of R3M3MB3R.com LLC’s affiliates on the other hand, all agree to resolve any dispute relating to these Terms or in relation to the Services by binding arbitration in Canton, Georgia, or in another location in Georgia that we have both agreed to.
This applies to all claims under any legal theory, unless the claim fits in one of the exceptions below in Section
18.2 (Exceptions to Agreement to Arbitrate). It also applies even after you have stopped using your R3M3MB3R.com LLC account(s) or closed it. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, we all agree that the arbitrator will decide that, too.
Pursuant to this Section 18 (Agreement to Arbitrate), you understand that you and your affiliates and R3M3MB3R.com LLC and its affiliates are giving up the right to have a judge and/or jury resolve any controversy or claim arising out of or relating to these Terms or the Services.
18.2 Exceptions to Agreement to Arbitrate. You and your affiliates on one hand, and R3M3MB3R.com LLC and its affiliates on the other hand, agree that we will go to court to resolve disputes relating to:
- Your, your affiliates’, R3M3MB3R.com LLC’s or R3M3MB3R.com LLC’s affiliates’ intellectual property (e.g., trademarks, trade dress, domain names, trade secrets, copyrights or patents); or
- Your violation of our Acceptable Use Policy or E-mail Policy.
Also, any of us can bring a claim in small claims court either in Canton, Georgia, or the county where you live, or some other place we both agree on, if it qualifies to be brought in that court. In addition, if any of us brings a claim in court that should be arbitrated or any of us refuses to arbitrate a claim that should be arbitrated, the other of us can ask a court to force us to go to arbitration to resolve the claim (i.e., compel arbitration). Any of us may also ask a court to halt a court proceeding while an arbitration proceeding is ongoing.
18.3 Details of Arbitration Procedure. Prior to filing any arbitration, both parties jointly agree to seek to resolve any dispute between us by mediation conducted by the American Arbitration Association (AAA), with all mediator fees and expenses paid equally by the parties. If mediation is not successful, either party may initiate an arbitration proceeding with AAA. You can look at AAA’s rules and procedures on their website http://www.adr.org or you can call them at 1-800-778-7879. The arbitration will be governed by the then-current version of AAA’s Commercial Arbitration Rules (the “Rules”) and will be held with a single arbitrator appointed in accordance with the Rules. To the extent any thing described in this Section 18 conflicts with the Rules, the language of this Section 18 applies. Each of us will be entitled to get a copy of non-privileged relevant documents in the possession or control of the other party and to take a reasonable number of depositions. All such discovery will be in accordance with procedures approved by the arbitrator. This Section 18 does not alter in any way the statute of limitations that would apply to any claims or counterclaims asserted by either party. The arbitrator’s award will be based on the evidence admitted and the substantive law of the State of Georgia and the United States, as applicable, and will contain an award for each issue and counterclaim. The award will provide in writing the factual findings and legal reasoning for such award. The arbitrator will not be entitled to modify these Terms. Except as provided in the Federal Arbitration Act, the arbitration award will be final and binding on the parties. Judgment may be entered in any court of competent jurisdiction.
18.4 Class Action Waiver. Both you and your affiliates, on one hand, and R3M3MB3R.com LLC and its affiliates on the other hand, agree that any claims or controversies between us must be brought against each other on an individual basis only. That means neither you and your affiliates on one hand nor R3M3MB3R.com LLC and its affiliates on the other hand can bring a claim as a plaintiff or class member in a class action, consolidated action, or representative action. The arbitrator cannot combine more than one person’s or entity’s claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator’s decision or award in one person’s or entity’s case can only impact the person or entity that brought the claim, not other R3M3MB3R.com LLC customers, and cannot be used to decide other disputes with other customers. If a court decides that this Section 18.4 (Class Action Waiver) is not enforceable or valid, then the entire Section 18 (Agreement to Arbitrate) will be null and void (i.e., go away). But, the rest of the Terms will still apply.