FunnelDash Terms of Service
EFFECTIVE DATE: April 15, 2018
The following terms and conditions (these “Terms of Service”) govern all products and services provided, licensed or sold by FunnelDash Inc., a Delaware corporation (collectively with its parent, subsidiaries and affiliates, if any, “FunnelDash”), including, without limitation, products and services provided on or through FunnelDash’s websites (including, without limitation, https://funneldash.com/ and the FunnelDash Blog http://fdashprod.wpengine.com, collectively, the “Site”) and together with all content, services, features, activities and products available at or through the Site (the “Services”). The term “you” or “your” includes any of your parents, subsidiaries, affiliates, and their respective directors, managers, officers, employees, consultants and agents. The Services are owned and operated by FunnelDash which is also referred to herein as “we”, “our” or “us”. Please read these Terms of Service carefully before using the Services.
Account Registration and Access
To register for the Services and create an account, you (including any agent designated by you acting on your behalf) must complete the registration process by providing FunnelDash with the information prompted by FunnelDash’s registration form(s) including, without limitation, your name, email address, telephone, company name, company website, and password. You agree to provide us with complete and accurate information when you register for the Services, and to keep such information up to date.
2.1 SUBSCRIPTION TERMS
FunnelDash offers a range of subscription plans to its Services (each a “Subscription”), including, without limitation, a “Basic Plan,” a “Pro Plan,” an “Enterprise Plan,” and an “Agency Plan.” As an express condition of your use of and access to the Service, you agree to pay all fees applicable to your Subscription, any other fees for additional services you may purchase, and any applicable taxes in connection with your use of the Service. To view the specific details of your Subscription, including pricing information and the commencement date of your next renewal period, visit the FunnelDash Site, login at https://app.funneldash.com/ and from the sidebar navigation select “Account” after logging in, or contact us at [email protected]
You will select your Subscription as part of your registration for the Services, which may begin with a one-time free trial (“Free Trial”) herein). Each Subscription will be based on the Subscription Period selected (e.g. annually, quarterly, monthly) (the “Subscription Period”). You may choose to be billed for the applicable Subscription annually or in less than annual increments (e.g. monthly), but regardless of your billing cycle, you are responsible for subscription fees for the entire Subscription Period selected.
Your Subscription will renew automatically and continue month-to-month or year-to-year (depending on your Subscription) unless and until you cancel your Subscription or we terminate it, in each case pursuant to the terms of this Agreement (see Section 2.5 (Account Cancellation) and Section 11 (Term and Termination)). You must cancel your Subscription before it renews in order to avoid fees due under the next billing cycle. As set forth in Section 2.7 (Account Cancellation) any cancelation of an annual Subscription must be done by providing FunnelDash no more than ninety (90) days but no less than forty-five (45) days’ written notice in advance of the end of such annual Subscription.
The Service may be priced based on usage, determined by the number of tracked users (each, a “Tracked User”), and other features including, without limitation: (i) the number of dashboards, (ii) ad network integrations, (iii) funnel and ad audits, and (iv) metric certification. With respect to such features, FunnelDash will not, and will have no obligation to, collect, maintain, provide or analyze any further information relating to Tracked Users, analyze such information in reports or provide information or reports once you reach the maximum number of Tracked Users as specified in your Subscription.
2.2 BILLING POLICIES, REFUNDS, OVERAGES, AND UPGRADE AND DOWNGRADE TERMS
As may be further set forth herein:
- The fees for your Subscription are billed in advance of each billing cycle. The fees for your Subscription are billed in advance, are non-refundable, and automatically renew on a monthly, quarterly or annual basis, as specified in your Subscription. No refunds or credits will be provided for partial months of the Service, upgrades/downgrades, or for months unused with an open account. We do not provide refunds if you decide to stop using the Service during your Subscription.
- If you exceed your Subscription’s limits in any given month, you will be either (a) charged a prorated overage charge for the month based on your current Subscription’s cost, or (b) automatically upgraded to the next level Subscription for the remainder of your Subscription Period. We will always choose the less expensive option to you.
If you upgrade your Subscription level, you will immediately be charged the full amount of the then-current rate for the new Subscription, as provided at https://funneldash.com/pricing/, and a new billing cycle shall begin immediately from the date of such upgrade.
- If you downgrade your Subscription level, your credit card will automatically be charged the new rate beginning with your next billing cycle. Downgrading your Subscription may cause the loss of account content, features, or capacity. FunnelDash does not accept any liability or obligation for such loss.
- Any discounts applied to a previous subscription may not apply to a renewed subscription, including to any automatic renewals.
- Any questions involving upgrades or downgrades to your Subscription can be directed to [email protected]
2.3 CHANGES IN FEES
We may, upon any notice required by applicable law, change the fees for the Service at any time or require new fees or charges. Such changes will be effective immediately upon posting on our Site; provided, however, that such fee changes will be effective only as to prospective Service orders (including renewals) accepted by FunnelDash after the effective date of such change.
2.4 PAYMENT OF FEES; CREDIT CARDS
All fees for your Subscription will be billed to your credit card you provide to us during registrations (or to a different credit card if you change your payment information). You acknowledge that the amount billed for each renewal period may vary due to promotional offers, changes in your Subscription, and changes in applicable taxes. You authorize the card issuer to pay any amounts described herein and in your Subscription and authorize us (or a billing agent acting on our behalf) to continue charging all such amounts to your credit card account until you or we cancel or terminate your Subscription as provided herein or these amounts are paid in full, whichever is later. You must provide current, complete and accurate billing and credit card information. You must promptly update all billing information (such as billing address, card number and expiration date) to keep your account current, complete and accurate, and you must promptly notify FunnelDash if your credit card is lost or stolen, or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your username or password). You authorize us to obtain updated or replacement expiration dates for your credit card in the event that the credit card you provided us expires. We reserve the right to charge any renewal card issued to you as a replacement. If payment is not received from your credit card issuer, you agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of your credit card may charge you a foreign transaction fee or related charges, which you will be responsible to pay. Please check with your bank and credit card issuer for details. We reserve the right to deactivate your access to the Services for failure to pay applicable fees as described in this Agreement. Unless otherwise stated, all fees are stated in U.S. Dollars.
2.5 ACCOUNT CANCELLATION
- The only valid method for canceling your Subscription is to login to app.funneldash.com/subscription. Alternatively, you may email customer support at [email protected] in order to request more instructions on how to cancel. Except for annual subscriptions as set forth in the subsection immediately below, requests to cancel by e-mail are not considered, and do not accomplish, cancellation.
- Your subscription will automatically renew as set forth herein; provided, however, that (i) if you request to cancel your monthly Subscription in accordance with Section 2.5.1 then such cancellation will be effective thirty (30) days after such request has been received by FunnelDash (for the sake of clarity, FunnelDash may continue to charge for any billing cycle taking place before the effective date of such cancellation), and (ii) if you cancel your annual Subscription in writing by providing no more than ninety (90) days but no less than forty-five (45) days’ written notice in advance of the end of such annual Subscription, you will not be charged again for your annual Subscription beginning with the next annual billing cycle. If you decide not to renew your annual subscription, you may cancel inside the application or send the written notice of non-renewal by email to [email protected]
- To prevent continuation of the Subscription Period of a Free Trial, you or we may close your account.
- If you cancel your Subscription, you will lose all access, upon the expiration of your current pre-paid period, to the Service and any data or information stored in your account (see Section 11 (Term and Termination) for additional details). If you cancel your Subscription during a Free Trial Period (as such term is defined below), effective upon such cancellation, you will immediately lose all access to the Service and any data or information stored in your account.
2.6 FREE TRIAL PERIOD
- FunnelDash may offer, during the registration process, a one-time Free Trial period during which you can try out the Service for up to thirty (30) days from the date you register to use the Service without pre-paying in advance (“Free Trial Period”). To view the specific details regarding your Free Trial Period, if any, visit the FunnelDash Site, login at https://app.funneldash.com/.
- If you participate in a Free Trial Period, you must cancel the Service by the end of the Free Trial Period to avoid incurring any charges. While you may not be required to enter your billing information in order to sign up for the Free Trial Period, you may provide such information at any point during the Free Trial Period. If you do so, you will not be charged until the Free Trial Period ends. If you have not provided billing information by the time the Free Trial Period ends, you will lose all access to the Services. There will be a seven (7) day grace period during which we will continue to maintain your account. You will have the option of entering billing information and subscribing during this grace period. If you do not do so, your account will be cancelled at the end of the grace period. If you do not cancel the Service before the Free Trial Period expires, you authorize us to charge your credit card the full cost of your Subscription, as described to you during the registration process. Your Subscription will automatically renew and continue month-to-month, quarter-to-quarter or year-to-year (depending on your Subscription), unless and until you cancel your Subscription or we terminate it (see Section 2.5 (Account Cancellation) and Section 11 (Term and Termination)). You will not receive a notice from FunnelDash that your Free Trial Period is about to end or has ended.
- In some instances, the available balance or credit limit on the credit card provided during the registration process may be reduced to reflect the pre-authorization of certain de minimis charges related to your Subscription; however, no charges will be made against your credit card unless you do not cancel prior to the end of your Free Trial Period.
- You may cancel your Subscription at any time during the Free Trial Period by following the steps described in Section 2.5 (Account Cancellation). Upon cancelling your account, you will immediately lose all access to the Service and any data or information stored within your account (see Section 11 (Term and Termination) for additional details).
- FunnelDash reserves the right to modify, cancel and/or limit the Free Trial Period offer at any time.
- Yearly Subscriptions: For yearly subscription purchases, you have FOURTEEN (14) Days from the date of the original purchase to request a refund for your FunnelDash yearly subscription. Any refunds requests after 14 days will NOT be prorated and non-refundable regardless of the effective date.
- Digital Products: You have FOURTEEN (14) Days from the date of the original purchase to review the training, preview the course, and take action. Any refund requests after the FOURTEEN (14) DAY time limit will not be processed.
- Action Based: Your purchase is 100% protected by our 14-Day Guarantee. To get your money back within 14 days, we will expect you to have gone through the entire Facebook Ad Manager Manual program, High Ticket Client Acquisition Toolkit, Attend Weekly Calls, Execute A Cold Email Campaign, and Execute a Facebook Ad Campaign and submit proof that you implemented these strategies with diligent and timely effort, and they did not work for you. If you followed all the recommendations in this program, and don’t feel they worked for you, please submit your efforts to our team within 14 days of purchasing this program and we’ll refund your money in full.
3.1 LICENSE TO FUNNELDASH SOFTWARE
Subject to the terms and conditions of this Agreement, FunnelDash hereby grants you a limited, revocable, terminable, non-exclusive, non-transferable and non-assignable license to (a) include the FunnelDash-provided code (together with any fixes, updates and upgrades provided to you, the “FunnelDash Code”) in the HTML code for web page(s) that are properly registered for the Services and owned or operated by you, solely for the purposes of accessing and providing information to the Services and accessing information available from the Services with respect to such web page(s); and (b) remotely access the Services to view and download your reports stored on the FunnelDash Site, located at http://www.funneldash.com.
Except as expressly set forth herein, you shall not (x) use, reproduce, modify, or create derivative works of the FunnelDash Code, or (y) transfer, lease, lend, sublicense, use for timesharing, or service bureau purposes, resell or otherwise distribute or allow third-party access to all or any portion of the FunnelDash Code or the Services.
3.2 LICENSE TO CLIENT DATA
As between you and FunnelDash, you shall retain ownership of any information, data and statistics that FunnelDash obtains from your website, such as raw data and log files generated by and/or provided to the Services; provided, however, that you hereby grant to FunnelDash a worldwide, royalty-free, transferable, assignable, non-exclusive, irrevocable, right and license to access your registered web page(s) and to access and log (a) any information concerning users’ actions, entries, or activities on your web page(s), (b) any information sent to you by users’ web browsers concerning users’ web activities immediately prior to visiting your web page(s) (e.g., URL information and HTTP header information), and/or (c) any data or other information you provide to FunnelDash (collectively “Client Data”) for the purposes of (i) providing you with reports and other functions related to the Services; (ii) analyzing and improving the Services; and/or (iii) compiling aggregate data derived from your use of the Services to compile statistics, metrics, insights and general trend data about the Services for, among other things, FunnelDash’s marketing and promotional purposes. This information will be presented only in aggregate form, and we will not share specific site data that identifies you or your visitors without your permission.
You represent and warrant that you have all rights, licenses, and consents required to use the Services and license Client Data to FunnelDash on these terms, and further represent and warrant that this license does not infringe the rights of any third party or violate any applicable law or regulation.
3.3 LICENSE TO MATERIAL WHICH YOU POST
By posting any software, information, data, databases, music, audio, video or audiovisual files, photographs, images, documents, text, digital files, forum messages, reviews, comments or other material (“Material”) to FunnelDash or the FunnelDash Blog, you hereby grant FunnelDash an irrevocable, perpetual, non-exclusive, royalty-free, transferable, and assignable worldwide license to reproduce, adapt, distribute, perform or publicly display, or create derivative works from all or any portion of the Material. You further represent and warrant that you own all rights to such Material and that this license does not infringe the rights of any third party or violate any applicable law or regulation.
4.1 YOUR OBLIGATIONS WITH RESPECT TO COOKIES USED BY THE FUNNELDASH CODE ON VISITORS TO YOUR WEBSITE
4.2 YOUR OBLIGATIONS WITH RESPECT TO VISITOR INFORMATION
The Services may allow you to link anonymous data regarding your Visitors’ activities and actions on your web page(s) with Personally Identifiable Information that you have collected regarding the Visitor. You shall be solely responsible for the consequences of using, disclosing, or transmitting such Visitor data, including Personally Identifiable Information. You further represent and warrant that:
- you will comply with all applicable laws, rules and regulations, including, without limitation all laws related to (i) privacy and data collection (including those followed regarding the transfer of Personally Identifiable Information from the European Economic Area and/or Switzerland to the United States as applicable), and (ii) the collection, use and disclosure of Visitor data, including Personally Identifiable Information, to FunnelDash;
- you will provide all required notifications and obtain all required consents and authorizations from your website Visitors to permit FunnelDash to, in accordance with applicable law, collect, obtain and/or use Visitor data, including Personally Identifiable Information, relating to Visitor use of your website, for the purposes of providing the Services;
- you will not use the Services to collect or analyze sensitive Personally Identifiable Information (e.g. personal health information, political opinions, religious or philosophical beliefs);
- you use third-party service providers to provide certain analytics and user interactions services to you in connection with your operation of such website, including the collection and tracking of certain data and information regarding the characteristics and activities of visitors to such website;
- Visitors may opt-out of this analytics and user interactions service by using FunnelDash’s Opt-Out Feature;
- you may disclose Visitor data, including Personally Identifiable Information, to certain such third-party services providers (including, for example, customer relationship management platforms) in order to obtain such services.
Your FunnelDash account is protected by a username and password, and should be accessed only by you or authorized third parties. You should take steps to protect against unauthorized access to or use of your username and password. You should also remember to log off when using any shared computer or device. FunnelDash has implemented commercially-reasonable security mechanisms to protect your information and Client Data from loss, misuse and unauthorized access, disclosure, alteration and destruction. Examples of these security mechanisms include limited and password-protected access, high security public/private keys, encryption on processed data, and SSL encryption to protect transmission of data. However, please keep in mind that no security system is impenetrable. It may be possible for third parties to intercept or access Client Data, information you provide to FunnelDash, information we compile on your behalf, and/or information that we collect about you. FunnelDash cannot guarantee the security of such information and except as may be provided by applicable law, is not responsible for, and shall have no liability with respect to, unauthorized access to your account or Client Data.
4.4 FUNNELDASH LIMITS ACCESS TO YOUR INFORMATION
FunnelDash will not knowingly permit access to, or otherwise divulge to a third party, the statistical information we compile for you except for the express purpose of generating reports which have been requested, authorized or approved by you, or (a) unless acting under a good faith belief that such action is necessary to (i) conform to legal requirements or comply with legal process; (ii) protect and defend the rights or property of FunnelDash; (iii) enforce our agreements with clients and/or visitors to our Site; (d) troubleshoot problems with the Services; or (b) to create aggregate reports as set forth below.
4.5 AGGREGATE REPORTS
FunnelDash reserves the right to aggregate Client Data across some or all of the websites using the Services for the purposes set forth in Section 3.2 (“License to Client Data”).
4.6 SERVICES NOT AVAILABLE FOR WEBSITES DIRECTED TO CHILDREN
You may not use the Services in connection with (a) any website or portion of a website labeled or described as a “Kid’s” or “Children’s” website; (b) any website or portion of a website directed at individuals under the age of 13; or (c) any website or portion of a website that you have reason to know is used primarily by individuals under the age of 13.
- Proprietary Rights; Restrictions on Use
5.1 CONTENT ON THE WEBSITE
Any opinions expressed by the contributors, authors and moderators who post content on or to the Site are the personal opinions of the authors, not of FunnelDash, whether or not the authors are employees or contractors of FunnelDash. The Site and all materials published and/or distributed on or through the Site (including, but not limited to news articles, photographs, images, illustrations, audio clips and video clips) are provided for informational and entertainment purposes only and are not meant to be an endorsement or representation by FunnelDash or any other party.
5.2 FUNNELDASH’S EXCLUSIVE RIGHT TO MANAGE MATERIAL
You acknowledge that any Material you post, upload, or submit to the Site (including, without limitation, the FunnelDash Blog) may be edited, removed, deleted, modified, published, transmitted, and displayed by FunnelDash in its sole discretion and without your permission and you waive any rights you may have in having the material altered or changed in a manner not agreeable to you. You expressly agree that we may remove, disable or restrict access to or the availability of any Material from the FunnelDash Blog at any time, for any reason or for no reason at all. However, FunnelDash shall not be responsible for controlling or editing any Material and FunnelDash cannot ensure removal of inappropriate or unlawful Material. Under no circumstances will we be held liable or have any obligation whatsoever for removing, disabling or restricting access to or the availability of Material or for any failure to do so.
Except for the limited licenses expressly granted herein, FunnelDash expressly reserves all right, title and interest in and to the FunnelDash Code, content on the FunnelDash Site, aggregate data and general trend reports described in sections 3.2(c)(iii) and 4.5, and all processing, analytics, and other software and technology used by FunnelDash in the analysis of your website and/or the provision of the Services (“FunnelDash Technology”), including, without limitation, any derivatives, improvements, enhancements, changes, or extensions of the FunnelDash Technology conceived, reduced to practice or otherwise developed on or on behalf of FunnelDash, all of which are valuable assets of FunnelDash, and any copyright, patent or trademark or other intellectual property right, or federal or state right, pertaining thereto.
5.4 RESTRICTIONS ON USE AND COMPLIANCE
You agree that you shall not:
- use, or allow the use of, the FunnelDash Technology, except pursuant to the limited rights expressly granted in this Agreement;
- use the FunnelDash Technology in any manner that is inconsistent with user documentation, if any, supplied to you by FunnelDash or inconsistent with FunnelDash’s standard security procedures, if any, accessible through your user interface;
- attempt to reverse engineer, hack into, or compromise any aspect of the FunnelDash Technology, or attempt to access data or account information of any other customer of FunnelDash;
- remove, obscure or alter any legal notices, including notices of intellectual property rights appearing in or on any materials delivered to you by FunnelDash;
- use, post, transmit or introduce any device, software or routine that interferes or attempts to interfere with the operation of the FunnelDash Technology;
- use the FunnelDash Technology for academic research or research unrelated to your Visitors or the web page(s) registered for use with the Services, or for contemplated litigation, scholarship, or any other unintended purpose;
- post or transmit any libelous, defamatory, indecent, obscene, abusive or pornographic message, data, image or program;
- post or transmit any message, data, image or program that would violate any property rights of others using the Services or on Site (including, without limitation, the FunnelDash Blog);
- upload or download files that contain software or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights to such files or have received all necessary consents; or
- use the Services to threaten, harass, or otherwise violate the legal rights (including rights of privacy and publicity) of others.
Furthermore, you will not use the Services in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity.
You agree to indemnify, hold harmless and (only if requested by FunnelDash) defend FunnelDash (including, without limitation, its parents, subsidiaries and affiliates, and its and their respective officers, directors, managers, stockholders, agents and other representatives) (collectively, the “Indemnified Parties”) at your expense, against any and all third-party claims, actions, proceedings, and suits asserted against the Indemnified Parties, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees) incurred by the Indemnified Parties, arising out of or relating to (a) your breach of any term or condition of this Agreement, (b) your use of the Services, (c) your unauthorized use of the FunnelDash Code, and (d) your disclosure of any Visitor data, including any Personally Identifiable Information, to FunnelDash. In such instances, FunnelDash will provide you with electronic and written notice of such third-party claim, action, proceeding, or suit to the last e-mail address and mailing address furnished to FunnelDash within thirty (30) days of learning of such claim. You shall cooperate as fully as reasonably required in the defense of any claim. FunnelDash reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.
7. Representations and Warranties
You represent and warrant to FunnelDash that you (a) own all right, title and interest in and to the URLs of your website(s); (b) own or have obtained all rights necessary to publish all of the content published on or through your website and the user interface of your website; and (c) have obtained all necessary consent(s) from Visitors required to enable the Services.
FunnelDash does not represent or warrant that (w) the Services will be error-free or accessible at particular times, (x) defects will be corrected, (y) the Services, or the server(s) that make it available, are free of viruses or other harmful components, or (z) the use or the results of the use of the Services or the materials made available as part of the Services will be correct, accurate, timely, or otherwise reliable. You specifically agree that FunnelDash shall not be responsible for unauthorized access to or alteration of your data.
8. Disclaimers and Limitations on Liability
8.1 GENERAL DISCLAIMERS
The information, reports and services included in or available through the Services may include inaccuracies or typographical errors. Changes are periodically added to the information herein. FunnelDash and/or its respective vendors may make improvements and/or changes in the Services at any time, without obligation to notify any person or entity of such changes.
The Services may contain links to third party websites or services (“Third Party Services”). Access to any Third Party Services is at your own risk and FunnelDash is not responsible for the accuracy, availability or reliability of any information, goods, data, opinions, advice or statements made available on Third Party Services that you access from the Services. The Third Party Services are not under the control of FunnelDash and as such, FunnelDash is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services. FunnelDash makes Third Party Services available merely as a convenience and the inclusion of such Third Party Services does not imply an endorsement or recommendation.
8.2 DISCLAIMERS OF WARRANTIES
THE SERVICES, THE FUNNELDASH TECHNOLOGY, THE FUNNELDASH CODE AND ANY REPORTS DERIVED THEREFROM ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY FUNNELDASH EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICES, THE FUNNELDASH CODE, THE REPORTS, OR ANY DOCUMENTATION, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. FUNNELDASH DOES NOT WARRANT THAT THE SERVICES, THE FUNNELDASH CODE OR ANY REPORTS DERIVED THEREFROM WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICES. SOME STATES (INCLUDING, WITHOUT LIMITATION, THE STATE OF NEW JERSEY) MAY NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU IN FULL.
8.3 LIMITATIONS ON LIABILITY
THE INDEMNIFIED PARTIES (AS SUCH TERM IS DEFINED ABOVE) WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICES), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF FUNNELDASH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES (INCLUDING, WITHOUT LIMITATION, THE STATE OF NEW JERSEY) MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU IN FULL
FUNNELDASH’S CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE SUBSCRIPTION FEES PAID TO FUNNELDASH FOR USE OF THE SUBSCRIPTION SERVICES (AND SPECIFICALLY EXCLUDING ANY OTHER FEES, INCLUDING, WITHOUT LIMITATION, CONSULTING OR OTHER SERVICE FEES) DURING THE SIX (6) MONTHS PRECEDING THE MOST RECENT EVENT GIVING RISE TO SUCH LIABILITY.
9. Service Failures
FunnelDash does not guarantee, and shall have no liability for, any Services downtime, including, without limitation, any downtime (a) caused by failures of or previously scheduled maintenance to FunnelDash’s equipment or servers, (b) caused by outages to any public Internet backbones, networks or servers; (c) caused by any failures of your equipment, systems or local access services; or (d) relating to events beyond FunnelDash’s control, such as strikes, riots, insurrections, fires, floods, explosions, war, governmental actions, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where FunnelDash or your servers are located or co-located.
10. U.S. Government Rights
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (“DOD”) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
- Term and Termination
FunnelDash may terminate or suspend access to the Services immediately, without prior notice or liability, if you breach this Agreement or for any other reason or for no reason at all.
11.2 TERMINATION OF THE SERVICES
To terminate your use of the Services, please follow the steps described in Section 2.5 (“Account Cancellation”).
Upon any termination of the Services (a) FunnelDash will cease providing the Services; (b) you will delete all copies of the FunnelDash Code from your web page(s); (c) any outstanding balance payable by you to FunnelDash will become immediately due and payable and any collection expenses incurred will be included in the amount owed; (d) you will not be entitled to any refunds of any usage fees or any other fees; and (e) all of your historical report data will no longer be available to you through FunnelDash.
In addition, upon expiration of any session with respect to a web page, you shall delete all copies of the FunnelDash Code from such web page. You understand and acknowledge that, unless and until the FunnelDash Code is deleted from a web page, the FunnelDash Code may continue to track information on such web page on an automated basis.
12. Modifications to this Agreements and Other Policies
Our employees are not authorized to vary the terms of this Agreement. This Agreement may be modified only (a) by obtaining our written consent in an agreement signed by an officer of FunnelDash; or (b) as set forth below in the immediately following paragraph.
You agree that FunnelDash may modify the terms of this Agreement or any policy governing the Services from time to time, and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. We will notify you of any material revisions or modifications to the Agreement by (x) posting a notice on the FunnelDash Site for 30 days following any revisions or modifications to this Agreement, (y) posting a notice on the FunnelDash Site the first time that you visit the Site following such revisions or modifications or, (z) providing direct notice of such changes in a communication to your customer account. By continuing to use the Services following receipt of such notice, you consent to the revised or modified terms of this Agreement.
13. Arbitration and Class Action Waiver
SUBJECT TO SECTION 14.5 AND EXCEPT WHERE PROHIBITED BY LAW (INCLUDING, WITHOUT LIMITATION, THE STATE OF NEW JERSEY), YOU AND FUNNELDASH UNDERSTAND AND AGREE THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND THE INDEMNIFIED PARTIES (AS SUCH TERM IS DEFINED ABOVE) RELATING TO THE SITE, THE INFORMATION AND MATERIALS PUBLISHED BY FUNNELDASH ON OR THROUGH THE SITE, ANY TRANSACTION OR RELATIONSHIP BETWEEN US RESULTING FROM YOUR USE OF THE SITE, COMMUNICATIONS BETWEEN US, AND YOUR USE OF OUR SERVICES, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE, FOREIGN OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. UNLESS PROHIBITED BY APPLICABLE LAW (INCLUDING, WITHOUT LIMITATION, THE STATE OF NEW JERSEY) THE PARTIES ACKNOWLEDGE AND AGREE THAT: (I) ANY SUCH CLAIMS SHALL BE BROUGHT SOLELY IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR PRIVATE ATTORNEY GENERAL CAPACITY, (II) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (III) THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL, (IV) ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT, (V) JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY A CALIFORNIA STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF, (VI) THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY, CONSTRUED, AND ENFORCED, BOTH PROCEDURALLY AND SUBSTANTIVELY, BY THE FEDERAL ARBITRATION ACT 9 U.S.C. § 1-9 (“FAA”), to the maximum extent permitted by applicable law, (VII) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES OR IT WILL BE FOREVER BARRED, AND (VIII) THIS SECTION 15 (ARBITRATION AND CLASS ACTION WAIVER) SHALL SURVIVE TERMINATION OF THE SERVICES OR OF THESE TERMS AND CONDITIONS TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAWS.
The following procedures shall apply:
- Any party that intends to make a claim shall first notify the opposing party in writing of such intention and shall describe in such notice, with reasonable particularity, the nature and basis of such claim, and the total amount of the claim. Within thirty (30) days of receipt of such notice, the party receiving notice of a claim shall provide a written response which, with reasonable particularity, sets forth its position concerning the claim. If the parties are unable to resolve the dispute arising from the claim by good faith negotiations to be conducted within the thirty (30)-day period following the written response, either of them may initiate binding arbitration pursuant to the terms and conditions set forth herein.
- In the event a party elects to proceed with binding arbitration, it shall provide written notice thereof to the other party by registered or certified mail. The arbitration shall be conducted by the American Arbitration Association (“AAA”), and shall be conducted using the then current Commercial Arbitration Rules of the AAA (except as varied by this agreement). The arbitration shall take place in Santa Barbara County, California, but may proceed telephonically in the event the total amount of the claim does not exceed $10,000 U.S. dollars (if the claimant so chooses).
- Payment of all filing, administration, and arbitrator fees will be governed by AAA’s rules.
- If for any reason the AAA is unavailable, the parties shall select JAMS.
BY AGREEING TO THIS ARBITRATION AGREEMENT, YOU ARE GIVING UP YOUR RIGHT TO GO TO COURT, INCLUDING YOUR RIGHT TO A JURY TRIAL. In arbitration, a dispute is resolved by a neutral arbitrator or panel of arbitrators, rather than by a judge or jury. Arbitration is more informal than a court trial; however, an arbitrator can award the same relief that a court can award.
Separate and apart from the agreement to arbitrate set forth above, and solely to the extent not otherwise prohibited by applicable law (including, without limitation, the State of New Jersey) the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this agreement. You acknowledge that this class action waiver is material and essential to the arbitration of any disputes between the parties and is non-severable from the agreement to arbitrate claims. If any portion of this class action waiver is limited, voided, or cannot be enforced, then the parties’ agreement to arbitrate shall be null and void. YOU UNDERSTAND THAT BY AGREEING TO THIS ARBITRATION AGREEMENT, WHICH CONTAINS THIS CLASS ACTION WAIVER, YOU MAY ONLY BRING CLAIMS AGAINST FUNNELDASH, ITS AGENTS, OFFICERS, DIRECTORS, MANAGERS, STOCKHOLDERS, MEMBERS, EMPLOYEES, SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS AND/OR ASSIGNS IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. IF YOU DO NOT AGREE TO THIS ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, YOU MUST TELL US IN WRITING AND NOT USE OUR SITE OR SERVICES.
14. Miscellaneous; Choice of Law, and Venue
FunnelDash shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control.
14.2 SEVERABILITY AND WAIVER
If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible by applicable law so as to reflect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
14.3 ENTIRE AGREEMENT
14.5 INJUNCTIVE RELIEF; INTELLECTUAL PROPERTY DISPUTES
Section 13 shall not apply to any legal action taken by you or FunnelDash to seek an injunction or other equitable relief. Furthermore, at FunnelDash’s option, Section 13 shall not apply to any controversy, allegation or claim that arises out of relates to your actual or alleged violation of intellectual property rights.
14.6 CHOICE OF LAW AND FORUM
This Agreement shall be governed by and construed under the laws of the state of California without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and California law, rules, and regulations, California law, rules and regulations shall prevail and govern. Except to the extent that arbitration is required in accordance with Section 13 above, any action or proceeding relating to a Dispute may only be instituted in state or federal court in Santa Barbara County, California. Accordingly, each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Santa Barbara County, California. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to this Agreement. The FunnelDash Code and FunnelDash Technology are controlled by U.S. Export Regulations, and may not be exported to or used by embargoed countries or individuals.
FunnelDash may deliver notice to you under this Agreement by (a) means of electronic mail, (b) posting a notice on the FunnelDash Site, (c) a communication to your FunnelDash account, or by (d) written communication delivered by first class U.S. mail to your address on record.
Unless otherwise specified, any notices to FunnelDash must be sent to:
725 Russell Way
Santa Barbara, CA 93110
via email or first class, air mail, or overnight courier, and are deemed given upon receipt.
14.8 TRANSFER OR RIGHTS
You may not assign or otherwise transfer any of your rights hereunder without FunnelDash’s prior written consent, and any such attempt is void. The relationship between FunnelDash and you is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.
The headings of the sections contained in this Agreement are for convenience only and shall not be deemed to control of affect the meaning or construction of any provision of this Agreement.
15. Special Admonitions for International Use
Recognizing the global nature of the Internet and the rapid changes around online privacy, you agree to comply with all local rules regarding online conduct and acceptable content. Without limiting the foregoing, you agree to comply with all applicable laws regarding the transmission of technical data exported to or from the United States or the country in which you operate or reside and to comply with any other local laws affecting the Services.
Effective Date of this Terms of Service:
This Agreement is effective the Effective Date set forth at the top of this document.